20060831 TZHC Arusha2

. l.,~--,V. ,- , IN THE HIGH COURT OF TANZANIA I ., AT ARUSHA MISC. CIVIL APPLICATION NO.2 OF 2003 i (C/F Arusha High' Court Civil Case; No 38/98) i METHOD KIMOMOGORO ..... .................................... .. APPLICANT VERSUS 1. GERALD BIGURUBE AG: DIRECTOR) I GENERAL TANZANIA NAflONAL ) PARKS I ) ) .............. ... RESPONDENTS 2. TRUSTEES OF TANGANYIKA ) NATIONAL PARKS t/a , ) TANZANIA NATIONAL PARKS ) RULING R. SHEIKH, J ! The applicant, METHOD l<imomogoro, is by this application seeking I the following order:- "That the respondents, jointly and severally, be committed for contempt of Court by their refusal without lawful excuse, to reinstate the I ! applicant in his post as Corporation Secretary and instead embarking on I acts prejudicial to the applicant's I rights as declared in the preliminary , I judgement and decree of this Honourable Court.'1 ,2 ., The application is brought under Order 21 RL,!le 30 (2) of the Civil I I i I procedure Code 1 966 and Section; 11 0 (a) of the Penal Code, Cap 16 of I I the Laws, and is supported by the ~ffidavit I of the applicant above-named. I I I I I I I ' The two respondents GERALD BIGURUBE AG. DIRECTOR - GENERAL ' , II j ' TANZANIA NATIONAL PARKS and TRUSTEES OF TANGANYIKA NATIONAL I I PARKS t/a TANZANIA NATIONAL PARKS resisted1 the application. A ·,• I : I , counter - affidavit sworn by the l '!, respondent on his I own behalf and also I on behalf of the second respondent I was filed. I I I I I The applicatiqn was argu;ed by written ~ubmissions with the I respective counsels for the contending partie~ presenting lengthy I I submissions. I Mr. D'souza learned counsel for the applic~nt as to be expected I I has in his arguments in support of the appl ication relied on the 1 I I I applicant's affidavit. Paragraph~ 4, 5, 6,7, 18 arid 19 of the aforesaid affidavit state as follows: I . "4. That in its preliminary J:udgement and decree dated 18/11/2000 , I ,1 I this Honourable Court decided that "plaintiff's I termination was wrongful, a nullity and ot I , no legal effect;" I I The Court declared I I further that the "plaintiff /was still an emp'loyee of the defendant I 3 until his employment was: terminated lawfully." The said i ' I judgement and decree are anhexed hereto and: marked "A. l (a) and A. l (b)." respectively. I 5. That on the 21 st November, 2000 the applicant through his I advocates wrote to the respondents askin'g them to confirm : I I whether he would be given: access to his o~fice to resume duty. I 6. That the respondents through their advocates wrote back saying ' I ' that the applicant was unwelcome to resume duty as they had I already lodged a Notice: of Appeal to the Court of Appeal of I I Tanzania against the prelirninary judgement. I ••••••••••••••••••••••• ■ ...................................... ·1 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • I 7. That about 8 months thereafter, I the respondents , by their letter I I dated l 3/07 /200 l informed the applicant that he was being I offered re-instatement fn an undisclosed, capacity and without ' specified duties. The :applicant was al:so informed that the institution was undergoing i tremend0us changes in its organisation structure . _:_ ........................ : ................................ . I ...... ········· .................... ·...................... ····1································ I " 4 I 18. That considering the icircumstances of; termination of the I I applicant's employment which termination h;as been held to be wrongful, unlawful, a nullitY and of no legar effect, it would be I I I careless on the part of the ~pplicant to accept reinstatement in a I I post which the respondents are unwilling to aisclose. ' I I I 19. That by refusing to recognise and give effe,ct to the preliminary ' ' judgement of this Honourable Court with regara to the rights of the ' I I ' I applicant and more particularly his status, th~ respondents are in serious contempt of court." Mr. D'souza, learned counsel for :the applicant has basically submitted I I • that by refusing to reinstate the applicant to : his former post of I I Corporation Secretary without anr lawful excuse ~he respondents had ' effectively disobeyed the orders by the court in t,he Judgement of this I I court (Hon. Msoffe J. as he then was) in Civil Case: No. 38 of 1998; and i'- : that the respondents were therefore I in contempt of court. I It was urged I I that the respondents be committed and held liable :for contempt of court. , I I In his support Mr. D'souza has cited the case of T:anzania Bunda Safaris Ltd vs. Director of Wildlife, 1996; T.L.R. 246. A lot more was argued by .I I' 1 learned counsel for the applicant :on the merits of t he application which in I I I my opinion is not relevant for ,the reasons which will emerge in this ruling. l 5 I In response Mr. Mwaluko learned Counsel for both respondents has I I ' I forcibly challenged the application both on the merits and on points of I I law. Firstly he submitted that the application having been brought under ' I I , I the provisions of Order 21 Rule 30 ;(2) of the Civil P~ocedure Code 1966 I I i : and Section 11 0 (a) of the Pen'al Code is not: legally tenable or I I I : maintainable in court. According t~ Mr. Mwaluko the: applicant was under I I the provisions of order 30 (2) ·of the Civil Procedure I Code 1966 I ' I mandatorily required to apply first for enforcement! or execution of the I I decree by attachment of the prope'.rty of the 2nd Re:spondent, and in the event of failure of such attachment~ the applicant was obliged to apply for ' I leave of the court to commit the:, respondents as tivil I Prisoners, or by I I both attachment and detention. Learned Counsel also contended that the : I applicant had not extracted the de'cree in question as of 28/11/2002 and - I I I I given that no application for execution l of the dedree in Civil Case No. I I I 38/98 in question was made ,when this application was- filed the , I I ' I respondents cannot be said to be in contempt of court. I Citing in his I I support the cases of (I) Re Maria Annie Davies (I) 1:888 21 Q.B.D. 236 (2) and Kasturilal Laroya v. Mityana Staple Cotton Co. ~td (1958) E.A. 195 Mr. I • I Mwaluko learned counsel for the' respondents urged I for the dismissal of , I I I the application on the ground that the applicatibn I does not meet the , I I requirements of Order 21, Rule 30 (2) of the Civil Rrocedure Code. I 6 I I ' By way of rejoinder Mr.D'souza submitted that there is no requirement for leave under Order 21130(1) and (2), that the crucial issue I : is whether the respondents "had an !opportunity of o,beying the decree and had wilfully failed to obey it". ; Learned counsel; for the applicant ' argued that as the respondents had,, ample opportunity of obeying the ' ' I decree and had wilfully failed to obey' the decree, it is r\ot obligatory upon ' ' ' ' the court to serve upon the respond;ents notice to obey the decree, that the respondents were in contempt ofr court for failure to obey the decree. ' : ' I have carefully considered ;the respective s:ubmissions on the ' objection on the point of law argued by learned coun~el. ' I Order 21 Rule 30 (2) of the Civil Procedure Code read,s as follows:- , I "(2) Where the party against whom, a decree for spe,'cific performance or I for an injunction has been passed ' is a corporation:, the decree may be enforced by the attachment of the'. property of the :corporation, or, with the leave of the Court, by detentio'n as civil prisone,rs of the directors or other principal officers thereof, or by both I attachment and detention."(Emphasis supplied). Now it is undisputed that a; preliminary judg:ement was entered in favour of the applicant and that the respondents \(Vere and are aware of the preliminary judgement and decree of this court: in Civil Case No 38 of ' 1998 ordering the respondents fo reinstate the a;pplicant to his former 7 employment. The question is, assdming the respo0dents failed to ' ' comply with the order in the preliminary judgement, wa!s any application ; , i : made by the applicant/judgement creditor to enforce: and execute the i i decree in question? More importantly,; was the applicant obliged to apply for execution by the attachment of property and/or l,eave of the court I : I j ' before seeking the prayer sought in /this instant appli!cation? Going by ; ; what is in the affidavit evidence of th:e applicant and the submissions by I ' i ! learned counsel for the applicant it iiis indeed evident that prior to the j' filing of the instant application the applicant ha~ not applied for I ! enforcement and execution of the decree in question.: As to the alleged I I I ' requirement for leave pointed out bY, Mr.Mwaluko by vyay of rejoinder Mr. D'souza has contended that in OrdJr 21 rule 30(2) s.!eeking the leave of ' ' I .: the court is not a requirement as 1a precondition to seeking an order iI 'I ' ' under order 21 r. 30 (l) and (2) for tommittal for contempt of court. I ,, :' ' It is amply evident that sub~equent to the pireliminary judgment I , being entered and the passing of: the decree for specific performance I i against the respondents the applicant has neither i sought enforcement I , I , . thereof by attachment of the prope:rty of the respondents not has leave of I ' I : the court been obtained under the/ provisions of Or~er 21, Rule 30 (2) off I ' ' ' the Civil Procedure Code to have the respondents detained as civil i ' prisoners. : I 8 ' As seen above, Order 30 (2) of th:e Civil Procedure! Code provides ' ' that a decree for specific performance' against a corp9ration may be . I ' I enforced by the attachment of the property of the corpor1tion or with the I leave of the court, by the detention a~ civil prisoners bf the directors 1 , I .......... thereof, or by both attachment and detentipn. It is my ! understanding that according to this ru.le the applicant o~ght to have first • I I sought by application to enforce the , decree by the attachment I of the I property of the 2 nd respondent or with the leave of th~ court sought by I '' application to enforce the decree by the detention as ciV:il prisoners of the , I ' 1 directors or other principal officers of the 2nd responden, t. I . I ! '' It is clear that the applicant has so far not applied for execution of ' I' the decree as provided under order 21 rule 30 (2) not/ has he sought the ' I requisite leave of the court to enforce the decree by detention. I cannot . ' ' I' but agree that the omission to take the aforesaid stF ps, i.e. application I for execution of the decree by attachment of t~e 2 nd respondent's . i I property and failure to obtain leaveiof the court to epforce the decree by ·' I '' detention of the respondents as civil prisoners/ has rendered this ' application both premature and incompetent. . As st~ted I in the case of Re . I Marie Annie Davies (supra), "Recou1rse ought not to ~e had to the process . I '' of contempt in aid of a civil remedy . where there islI any other method of I I I doing justice. The observations of the late Master df the Rolls in the case i ' ' of Re Clement seem much in point:- ' ' I ' ''' ' '' l 9 "It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealous!~ and carefully watched, and exercised, if I may say so, with the greatest /reluctance and the greatest anxiety on the part of jud'ges to see whet~er I there is no other mode which is not open to the objection • of arbitrarihess, I and which can be brought to bear upon the subj~ct. I say that a Judge should be j • most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of de.aling with person!s brought before ,' : him on accusations of contempt should be adopted. I h~ve myself had on many occasions to consider this jurisdiction, and I havie always thought I I : that, necessary though it be, it is netessary only in t~e sense in which extreme measures are sometimes n~cessary to pres~rve men's rights, that is, if no other pertinent remedy can be found ....... / ..................... " I am in full agreement with the above statemen~ of principle which was adopted in the Re Marie case." (See also the case bf l<asturilal Laroya v. Mityana Staple Cotton Co. Ltd. & arhother 1958 E.A. il 95). In the instant application the applicant has, be½bre resorting to this extreme mode/method, not exhau~ted the usual m1des of enforcement and execution of a decree provided by the law, in O(ider 21 rule 30 (2) of . the Civil Procedure Code. The application is therefore not only premature but also unreasonable in the circumstances. ' :' 1 ,I ') 10 I Iti ,1 \ , In the event the application being incompetent is hereby struck out I \ ~ j with costs. r t\,, 1 ,::•; i~I ,I . " R.SHEIKH l j ,I ~;i\ 1 \ f,,: JUDGE1 29/08/2006 f: I ..... I Ruling de Iive red this 3 1/08 /2 oop in the presence of Mr. Um bull a «. I I learned counsel holding brief. for Mr.DJsouza f learned co I nsel for the t I i I applicant and Mr. Mwaluko learned counsel for the reswondent, and Vero l ~-- « R. S~EIKH ·I JUDGE 31/0~/2006 ll :, 1 ij /mm