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■!). IN THE HIGH COURT OF TANZANIA MOROGORO SUB- REGISTRY AT MOROGORO MISC, LABOUR APPLICATION NO. 27046 OF 2023 (arising from thelabour executionno. 37 OF2022) THE REGISTERED TRUSTEES OF THE EVANGELICAL LUTHERAN CHURCH IN TANZANIA APPLICANT VERSUS LABOUR OFFICER- MOROGORO RESPONDENT THE ATTORNEY GENERAL 2"" RESPONDENT SECRETARY GENERAL-EVANGELICAL LUTHERAN CHURCH IN TANZANIA RESPONDENT LUTHERAN JUNIOR SEMINARY MOROGORO 4™ RESPONDENT 12 ™ AUGUST, 2024 L. MANSOOR, 3 RULING The applicant herein, nameiy, THE REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH IN TANZANIA, herein shall be referred to as "ELCT" Is the body corporate duly registered under the Trustees Incorporation Act, Chapter 318 of the Laws of Tanzania whiie the third respondent in this application is the SECRETARY GENERAL - EVANGELICAL LUTHERAN CHURCH IN TANZANIA who is the Chief Executive Officer of ELCT and the fourth respondent, the LUTHERAN JUNIOUR SEMINARY MOROGORO is the education institution owned by ELCT. Briefly, the background of the matter is that, the Labour Officer or the Assistant Labour Commissioner, who is the 1^ respondent in this application issued a Compliance Order dated February 2022, against the Secretary General of Evangelical Lutheran Church in Tanzania, Lutheran Junior Seminary, Morogoro. The Order was issued in accordance to Regulation 10 (1) of the Labour Institutions (General) Regulations, GN No. 45 of 2017, which states as follows: 10."(1) A labour officer may, where satisfied of compliance or non- compliance to Labour laws by an employer, recommend such person to the Labour Commissioner for a respective certification as prescribed in a format set out in the Schedule to these Regulations. The Compliance Order was confirmed by the Labour Commissioner on 25'*^ March 2022. In the Compliance Orders, the Labour Officers had ordered the employer who was the Secretary General of Evangelical Lutheran Church in Tanzania, Lutheran Junior Seminary to comply with the following orders: 1. To pay sum of THz 104,745,002.00 for 23 employees of the Lutheran Junior Seminary remuneration of the month of July, August, September, October, November and December of the year 2021; 2. To pay sum of THz 315,841,021.00 for 23 employees of Lutheran Junior Seminary as special allowances as per the school regulations and Employment contracts; Payment of the claims of THz 42,253,691.00 for 21 employees as gratuity; 3. Payment of Tshs 220,000 for two employees as travelling leave assistance; 4. Payment of THz 26,253,691.00 for 23 employees which is ! unlawful deductions; The Labour Commissioner's Order dated 25"^ March 2022 confirmed the above orders issued by the Labour Officer. The Labour Commissioner ordered the Secretary General of the Evangelical Lutheran Church In Tanzania to comply with the Order of the Labour I ' Officer with immediate effect, i.e. within 30 days from the date of the Order. The Secretary General of the Evangelical Lutheran Church in Tanzania did not comply, and this prompted the Labour Officer to institute an Application for Execution No. 37 of 2022 before the High Court, Labour Division at Morogoro. The application for execution was filed in court on 22"^" December, 2022. The application for execution was against the Evangelical Lutheran Church in Tanzania and Lutheran Junior Seminary, claiming for payment of THz 489,313,405.00. The application for execution was filed by the Labour Officer as the 1^ Decree Holder, and the Attorney General as the Decree Holder. The application for execution was filed under Rule 48 (3) of the Labour Court Rules, which states as follows: Section 48 (1)- Every decision of the Court shall be binding on the employer and employees to whom It relates from the date when it takes effect; Section 48 (3)- For the avoidance of any doubt, every decision of the Court notwithstanding that it has not yet been published in the Gazette, or any party has a right of appeal or review, or Intends to file an action In any court on grounds referred to In sub rule 1, or that, any party has a right of appeal or revision or reference or Intends to file an action In any court to challenge the same decision, shall be enforced by the court Itself exercising the powers conferred by the provisions of Order XXI of the Civil Procedure Code Act, or In any other civil court of competent jurisdiction as If It was a decree of the court. The mode of assistance of the Court asked by the Decree holders was an order of Immediate payment of THz 489,313,405, failure of which to attach Account No. 014103002964 ELCT Arusha NBC Bank and Account No. 0150423526700 Lutheran Junior Seminary CRDB Bank. Attachment and sale of Plot no. 25 Blocks V Mkundl Morogoro owned by the Evangelical Lutheran Church In Tanzania, Morogoro Diocese of P.O Box 564 Morogoro, attachment and sale of Plot No. 7-15, Block E, Kllosa Urban Area, Plot No. 7, In Morogoro Township owned by the Registered Trustees of the Lutheran Church In Tanganyika Synod of Uzaramo- Uluguru and Parish Quarters Plot, MIkumI Urban Area, owned by the Registered Trustees of the Lutheran Church In Tanganyika Synod of Uzaramo- Uluguru. The applicant herein known as The Registered Trustee of Evangelical Lutheran Church In Tanzania,"ELTC"filed an objection under Section Order XXI Rule 57 of the Civil Procedure Code requesting this Court to Investigate the ownership of the Bank Accounts Numbers mentioned In the Application for execution In particular Account No. 0150423526700 CRDB Bank and Account No. 014103002064 NBC Bank. Also to Investigate the ownership of the Motor Vehicles with Registration No. T600AEQ Toyota Land-Cruiser and T145CLC Toyota Coaster, and all other properties listed In the Application for execution. The applicant claims that the properties belong to the Registered Trustees of the Evangelical Lutheran Church In Tanzania, "ELCT", an entity Incorporated under the Trustees Incorporation Act, and was never given a chance to be heard, they were never Involved In the t K processes that culminated Into the issuance of the Compliance Order by the Labour Officer in 2022. The Labour Officer and the Attorney General filed a joint counter affidavit stating that the Account Numbers and the Vehicles mentioned In the application for execution do not belong to the applicant but the judgement debtors, and required strictest proof from the applicant. They further stated that the 3"^ respondent is the Chief Executive Officer as well as the Accounting Officer of the Evangelical Lutheran Church In Tanzania, and had effectively participated in all the proceedings before the Labour Officer and the Labour Commissioner. The and 2"'^ respondents state further that the Secretary General of the Evangelical Lutheran Church In Tanzania was also involved in all the proceedings before the Labour Officer and the Labour Commissioner. That the Chief Executive Officer and the Secretary General of the Evangelical Church In Tanzania are among the Trustees of the Registered Trustees of the Evangelical Lutheran Church in Tanzania, and thus they are aware of the existence of the Compliance Orders, and they are required to comply. When the matter came up for hearing, the applicant was duly represented by Advocate Lweeka and Advocate Susana Mafwere while the 1=^ and 2"'^ respondents were represented by Counsel Nzumbe Machunde, the Learned State Attorney. The application was determined by written submissions. The 3'''' and 4'*^ respondents communicated to the court expressing their wishes not to oppose the application, and filed neither the counter affidavit nor submissions. In its written submissions, the applicant submits that ELTC is the body corporate duly registered under the Trustees Incorporation Act, Chapter 318 of Laws of Tanzania with main duties of protecting properties, suing and or being sued on behalf of the Evangelical Lutheran Church in Tanzania. That Lutheran Junior Seminary Morogoro, the 4'*^ respondent in the application is an education institution owned by ELCT. The properties and bank accounts are also owned by the applicant. That the applicant is the sole owner and or custodian of bank accounts No. 0150423526700 at CRDB Bank and 014103002064 at NBC Bank as well as vehicles with Registration No. T600AEQ Toyota Land Cruiser & T145CLC Toyota Coaster. The applicant submits that In 2021, the applicant retrenched 24 employees who were working with the fourth respondent,the Lutheran Seminary In Morogoro. The applicant submits that all the 24 retrenched employees were fully paid with all their entitled terminal benefits. That the applicant paid them through cheque no. 346023, 346024, 346026, 346027, 346028, 346029, 346030, 346031, 346032, 346033, 346034, 346035, 346036, 346037, 346038, 346039, 346040, 346041, 346042, 346043, 346044, 346045, 346046, 346047, 346048, 346049 and 346050. The total amount which was due was 260,577,504.00 and It was paid In full from the applicant's CRDB account number 01J1036057400 with name ELCT GUEST HOUSE at Meru Branch at Arusha. Proof of payment were attached to the affidavit of the applicant In paragraph 3.9 where all copies of Cheque leaves of CRDB Bank (with cheque number, name of payee and amount paid to each ex-employee), bank statement and affidavit of ELIZABETH SIMON of the authenticity of the bank statement were duly annexed. Since the retrenched employees were paid by the applicant through its account maintained at Arusha, the applicant argues that this is enough proof for proving that the applicant herein is the custodian of all the properties of ELCT. The applicant submits further that the Labour officer did not afford them a chance to be heard before issuing the Compliance Order. That the applicant was not given opportunity to show the cheque list and the bank statements as proof that all the 24 retrenched employees were fully paid with all their terminal benefits. The applicant submits that it is the applicant only who can sue or be sued on behalf of ELCT,the school or the Secretary General who is the staff member of ELTC cannot be sued in his names or positions. That, the third and fourth respondents herein has no capacity to prosecute or defend any suit before any judicial or quasi-judicial authority for and on behalf of ELTC. That, any decree or decision of judicial or quasi- judicial authority against the third and fourth respondents herein cannot be executed by attaching the properties of the applicant herein. 10 That, the applicant being the sole body corporate of ELCT was not afforded with the right to be heard before it was condemned by the Labour Officer and the Labour Commissioner and that its properties cannot be attached to satisfy any decree issued against the 3'''' and 4"^ respondents. That, it is the interest of justice that the attachment of the applicant's properties be lifted from Execution No. 37 of 2022 for that the applicant was never a party to any proceeding which led to the said execution. The applicant submits further that basing on Section 12(1) of the Societies Act,[CAP 337 R.E 2002] as well as Sections 2(1), 3, 5, 6(2) and 8(l)(a) and (b) of The Trustees Incorporation Act,[CAP 318, R.E 2002], it is the applicant only and not the third or fourth respondents herein who could sue and be sued for ELTC. In other words, the applicant states that the Secretary General of Evangelical Lutheran Church Is a non-existing entity. The applicant cites Section 8 (l)(a)(b) of The Trustees Incorporation Act,(supra)whlch provides for effect of incorporation as follows; 11 (1) Upon the grant of a certificate under subsection (1) of section 5 the trustee or trustees shall become a body corporate by the name described In the certificate, and shall have- (a) perpetual succession and a common seal; (b) power to sue and be sued In such corporate name; To buttress Its submissions, the applicant refers to the decision of this Court at Mbeya In Sibonike Anyingisye Mwasalemba vs Teofilo Kisanji University(TEKU)(Misc. Civil Appeal 2of 2020)[2020] TZHC 4075(25 November 2020) whereby this Court had this to say at page 18 "...The legal status of one regarded by the law as a person; the legal conception by which the law regards a human being or an artificial entity as a person... refers to the particular device by which the law creates or recognizes units to which It ascribes certain powers and capacities ". It Is therefore the law that, only natural or legal persons can sue or be sued In their own names/capacities. If an Institution or an entity or unit Is self- 12 propelling, but not so recognised by law, it cannot sue or be sued by its own name." "Our practice Is clear that, when one institutes court proceedings against an artificial person with legal personality, he discloses the law under which such legal personality is recognised. This is commonly shown in the documents Instituting the proceedings in court. This Is for purposes of satisfying the court that, the person against whom the proceedings are brought, real exists before the eyes of the law and an executable order can be Issued against him. The applicant in the matter at hand did not do so in his application." The applicant submits that Lutheran Seminary Morogoro is the education institution which has no legal personality to sue or be sued, and the Secretary General of Evangelical Church In Tanzania Is the officer in ELTC and also cannot be sued in his own personal capacity as he Is not the representative of ELTC. To buttress his arguments, the applicant'counsels also refers to the case of Muhammad Rafik & Others vs The AD HOC Committee, Sunni Muslim Jamaat Dar 13 es Salaam (Civil Case 119 of 2012)[2012] TZHC 22(16 June 2012)tanzlii, whereby at page 10 this Court stated that; "It Is the Registered Trustees of Sunni Muslim Jamaat who have the legal capacity to sue or be sued following its incorporation as a body corporate. The members of the Ad- Hoc Committee are not trustees within the meaning of that expression used in Order XXX, Rule 2. In an action founded upon an act or omission a Registered Trustee, it seems to me that the registered trustee should also have been joined in this Civil Case Number 119 of 2012. This Court cannot Issue an injunctive order whose effect touches on the rights of a registered trustee which was not made a party to the proceedings seeking injunctive orders of this court." The applicant refers also to the case of Jung Hwan Kim & Another vs Tanzania Presbyterian Church (Civil Case 98 of 2019) [2022] TZHC 273(25 February 2022) tanzlii, and at page 7 this court said as follows; "In view of the above stated, I proceed to uphold this preliminary objection by the defendant as this court cannot proceed to hear 14 the suit In which one of its party is not existing as to so do it tantamount to deciding the matter against no person before the court. The suit before this court therefore is incompetent." Also he refers to the case of Kanisa La Anglikana Ujiji vs Abel S/0 Samson Heguye (Labour Revision 5 of 2019)[2019] TZHC 37 (14 November 2019]tanziii whereby this court had these to say at page 2; "No other body of unincorporated trustees can sue or be sued in any court of law as they have no legal personality" "It follows, therefore, that the Anglican Church or its branch cannot be sued in its registered name as the registered name cannot give it a legal personality. I accordingly hold that the respondent sued a legally non-existent entity. This is an error which cannot be allowed to stand much as I sympathize for the resources already spent on prosecuting this case. To avoid situation like this, it is advisable that those entrusted with the administration of justice should always ensure that when artificial persons sue or are being sued they do so in their incorporation names." 15 The applicant submitted further that it was denied a chance to be heard and that it is a settled principle that right to be heard Is so fundamental in such a way that, any decision reached without affording right to be heard to parties shall be nullified, and to fortify its stand, the applicant refers to the case of MBEYA - RUKWA AUTOPARTS AND TRANSPORT LTD V. JESTINA GEORGE MWAKYOMA [2003]T.L.R.251 where it was stated that; "In this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the attributes of equaiity before the law," The applicant submits further that since the Applicant was not afforded a chance to be heard, attachment and saie of its properties becomes iilegal. The Applicants therefore invites this Court to lift the attachment of account number 0150423526700 at CRDB Bank and 014103002064 at NBC Bank as weil as vehicles with Registration No. T600AEQ Toyota 16 Land Cruiser & T145CLC Toyota Coaster which are the properties of the appiicant. The 1^ and 2"'^ respondents filed their joint reply submissions in which they submit that the appiication was filed prematurely contravening Order XXI, Rule 57 of the Civil Procedure Code as the properties listed in the application for execution have not been attached in the execution of the decree, and that the objection has been made by a person who is not a party to the suit. The and 2""^ respondent referred to the case of Abdallah Salum Lukemo and 18 others vs Sifuni a Mbwambo and 208 others. Misc. Land Application no. 507 of 2019, HC, Land Division, which said: "...in the absence of attachment as in this case, the applicants have nothing to object in the first place, their application has not met the tests of the objection proceedings as set out in Order XXI, Rule 57(1) and (2) of the Civil Procedure Code (Cap 33 R: E 2019)..." 17 Also in the case of Ramah Bakari Mageuza vs Tumaini E Mnyone and 2 others. Land Revision No. 45 of 2022, HC, In which Judge Hemed said that there must be an attachment order in execution of a decree before a party can employ the provisions of Order XXI Rule 57 of the Civil Procedure Code as the outcome would be to release the property from the attachment. The respondents submit further that the forth respondent, the Lutheran Junior Seminary Morogoro is owned by the Evangelical Lutheran Church in Tanzania, but the person in charge of its administration is the Secretary General of ELTC who is the 3'''' respondent in this application. That according to Rule XII of ELTC Constitution, the Secretary General of ELTC is also the Chief Executive Officer as well as the Accounting Officer of the Society, and as per Rule XII, the Secretary General is the employer of ail the employees of the Church except those registered with the Main Council of the Church (Halmashauri Kuu ya Kanisa). The State Attorney submits that it was proper to direct the Compliance Order to the Secretary General of ELTC 18 since he was the Employer of all the 23 retrenched staff of Lutheran Junior Seminary Morogoro. The State Attorney seems to concede to the submissions fronted by the Applicant that it is true that ELTC is the registered Trustees and ought to have been sued as the Registered Trustees. However, the Counsel argues that on issues of employment, the proper person to be sued was the Secretary General of ELTC. The State Attorney also employed the provisions of Article 107 of the Constitution of the United Republic of Tanzania as well as Rule 55(2) of the Labour Court Rules, and urged the Court not to be tied up with technicalities and principles of overriding objectives be used for fair determination of disputes. The State Attorney also submits that the Secretary General of ELTC is the principal officer of ELTC and represented the ELTC as the Chief Executive Officer and the Accounting Officer, and since he was involved in the entire processes of this matter, it is clear that ELTC was afforded a chance to be heard and was duly represented. The State Attorney argues that the properties listed for attachment are under the 19 administration of the Secretary Generai of ELTC, and a prayer to investigate is want of merit as weii as premature since there is no attachment order. In rejoinder, the Counseis for the Applicant stated that the and 2"'^ respondents must respect the orders passed by this court as they applied to withdraw the preliminary objection and the prayer was granted. That being the case, the and 2"'' respondents could not argue on a point of law which they had already withdrawn. However, the Counseis for the applicants responded to the arguments on the preliminary objections and stated that in the case of Abdallah Salum Lukemo(supra)and that of Rama Bakari Mageuza (supra) cited by the counsels for the first and second respondents are distinguishable from the matter at hand on the following aspects; 1. Original decisions in the case of Abdallah Salum Lukemo and that of Rama Bakari Mageuza were both against existing natural persons hence executable; but to the contrary the compliance order by the labour officer in the matter at hand was issued against a non-existing entity hence not executable. 20 2. In the case of Abdallah Salum Lukemo, an application iike this was held pre-mature on the ground that there was no even an application for execution which was pending before the court but in the matter at hand there is pending Labour Execution No. 37 of 2022 before Hon. Mbelwa, DR which has already listed applicant's properties for attachment. The Counsel distinguished the holding of the case of Rama Bakari Mageuza, issued by this Court (Hon. L. Hemed, J) who declined to grant the application because it had no original jurisdiction to entertain the application. The matter before Hon. L. Hemed,2 was an application for Revision and this court rejected the application on the account that the decision of the District Land and Housing Tribunal for Temeke was final. On the other hand, the matter at hand is in originai jurisdiction of this Honourable Court. The reasoning of Hon. Hemed, J can be traced from page 9 third paragraph whereby the court reasoned as follows; " under Order XXI rule 62 of the Civil Procedure Code, [Cap 33 RE 2019], the decision in objection proceedings is final. 21 The remedy available to the aggrieved party Is to institute a fresh suit. Therefore, it was not proper for the applicant to come to this Court the way he knocked the gates of this Court." The Counsel argues that the spirit of order XXI Rule 57(1) of Civil Procedure Code, [CAP 33 R.E 2019] is to enable the owner of the property to protect his/her property from wrongful attachment in execution as early as possible. The Counsels refers to court to the decision of the Court of Appeal of Tanzania (CAT) at Dar es Salaam in Barclays Bank Tanzania Limited vs Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021]TZCA 202(17 May 2021)tanzlii, at page 6 and 7 whereby the CAT discussed rules of statutory interpretation as hereunder; "However, we shall begin by making reference to some rules of statutory interpretation because that seems to be our duty in this case. We have dealt with that area in many of our previous decisions, so we shall simply reproduce what was stated in Ngasa Kapuli @ Sengerema v. Republic, Criminal Appeal 22 No. 160 "B" of 2014 (unreported). The first general rule, Is that, If the words of the statute are clear, the duty of the court Is to give effect to their natural ordinary meaning, unless It finds that to do so, would lead to hardship, serious consequences. Inconvenience, Injustice, absurdity or anomaly. If that Is so, then preference should be given to that construction which would avoid such results. The second principle Is that a statute must be read as a whole. One provision of the section should be construed with reference to the other provisions In the Act so as to make consistent enactment of the whole statute. In that way any Inconsistency, or repugnancy either In the section or between a section and other parts of a statute, would be avoided. Here the duty of the court Is to harmonize the provisions of the same Act as much as possible, so as to avoid a head on collision between two sections of the same Act. The last third principle Is the rule of construction In favour of presumption of constitutionality." Based on the above authority, the Counsels Invited this Court to avoid Interpretation of Order XXI Rule 57(1) of CPC In a way that would lead 23 • I ^ to hardship, serious consequences, Inconvenience, injustice, absurdity or anomaly. The Counsels rests their submissions employing this court to declare that the properties listed in an application for execution to belong to the applicant who was not a party in the proceedings before the Labour Officer or the Labour Commissioner. In this application, the Applicant have moved this Court to investigate into the claims of ownership of the 2 BANK ACCOUNTS, Account No. 014103002964 ELCT Arusha NBC Bank and Account No. 0150423526700 Lutheran Junior Seminary CRDB Bank, 2 Motor Vehicles and a variety of landed properties subject of the Compliance Order issued by the Labour Officer and confirmed by the Commissioner for Labor in 2022. The landed properties listed in the application for execution were Plot No. 25, Blocks V, Mkundi, Morogoro which belongs to the Evangelical Lutheran Church in Tanzania, Morogoro Diocese of PO Box 564 Morogoro, Plot No. 7-15, Block E, Kilosa Urban Area, Plot No. 7 in Morogoro Township which belongs to the Registered Trustees 24 of the Lutheran Church in Tanganyika Synod of Uzaramo- Uluguru and Parish Quarters Plot, Mikumi Urban Area, which also belongs to the Registered Trustees of the Lutheran Church in Tanganyika Synod of Uzaramo- Uluguru. In this application the sole issue which ought to have been determined is an investigation to find out whether the above mentioned properties belongs to the Judgement Debtor, who according to the Compliance Order was the Secretary General of Evangelical Lutheran Church in Tanzania. The Compliance Order was specifically addressed to the following: Secretary General Evangelical Lutheran Church in Tanzania Lutheran Junior Seminary P.O. Box 303 Morogoro It appears to me that the Compliance Order was addressed to only one person, the Secretary General of Evangelical Lutheran Church in Tanzania whose address is at the Lutheran Junior Seminary, P.O. Box 303, Morogoro. The Compliance Order was not directed to Lutheran 25 Junior Seminary or to the Registered Trustees of the Evangeiical Lutheran Church in Tanzania. However, in the appiication for execution fiied in Court on 2"'^ December, 2022, Lutheran Junior Seminary Morogoro was shown as the 2"'' judgement Debtor, who was never a party in the proceedings before the Labour Officer or the Labour Commissioner. That apart, the appiication for execution was preferred under Ruie 48 (3) LCR and Order 21 Ruie 9 and 10 (2) of the Ovii Procedure Code. I oniy assume for convenience that by citing LRC in the application for execution before the Court, the Labour Officer meant to cite the Labour Court Rules, and in that case and as reproduced herein above Ruie 48 (3) of the Labour Court Rules is for execution of the decisions issued by the Court, and not otherwise. The Compliance Order issued by the Labour Commissioner is not the decision of the Court whose execution can be preferred under Ruie 48 of the Labour Court Rules. Again, I went through the entire Labour Institutions (General) Regulations, 2017 as well as Section 45 and 46 of the Labour Institution Act [Cap 300 R.E 2019] to see whether the Labour Officer 26 has powers to entertain a labour dispute between an employer and an employee, particularly on Issues of employment, non-payment and reduction of wages and retrenchment, and saw none. Powers of the Labour Officer are clearly stipulated under Section 45 and Section 45A of the Labour Institutions Act(supra) and In Section 46 of the Act, the Labour Officer can only Issue a Compliance Order to the Employer If after an Inspection he has reasonable grounds to believe that an employer has not complied with a provision of the labour laws. The Compliance Order Is Issued In the prescribed form found In Regulation 10 (1) of the Labour Institutions (General) Regulations, 2017. Amongst many powers of the Labour Officer given under Section 45 and 45A of the Act, Including the power to enter and search and power of seizure, and also the power to prosecute the employer In the name of the Labour Commissioner, the Labour Officer has not been given the power to determine disputes between the Employer and the Employee particularly on Issues of employment, non-payment of wages and other benefits, reduction of wages and retrenchment. These powers have been conferred solely and exclusively to the 27 k # ' ■ Commission for Mediation and Arbitration as well as to the Labour Court. Clearly the Compliance Order is prescribed under Regulation 10 (1) of Labour Institutions (General) Regulations, 2017. The checklist of what is needed to be inspected and what the employer Is required to comply is given under this Form, and there is no-where in the Prescribed Form that shows that the Labour Officer can order the Employer to pay the employee the remuneration or allowances or to determine whether the employment contract was fairly or unfairly terminated to entitle the Labour Officer to order the employer to pay compensation or to reinstate the employee or to enquire into the entrenchment processes. These powers are conferred to the Commission for Mediation and Arbitration as well as to the Labour Court. I see that the Labour Officer has usurped the powers and thus the Compliance Order is Ultra vires and has no effect. Again, under Section 46 (6) of the Labour Institution Act, it is the Labour Commissioner, not the Labour Officer who can apply to the Labour Court for enforcement of his Orders. The law does not mention 28 fe 0 '» the Attorney General as a party to the proceedings. The Labour Commissioner ought to have moved the Labour Court under Section 46(6) of the Act, which reads: Section 46 (6): The Labour Commissioner may appiy to the Labour Court to enforce the compliance order if the empioyer has not complied with the order and has not objected to the order in terms of Section 47 (1). I would have ended there by declaring the application for execution to be incompetent for being preferred under the wrong provisions of the law, but again by being preferred by a party who was not a party in the proceedings, but also against a party who was not a party in the proceedings conducted by the Labour Officer which culminated into the issuance of the Compliance Order, which Order I declared to be ultra-vires. However,I see it of importance to address two issues. One, the duty of the Decree Hoider in the application for Execution, and two whether the application under Order XXI Rule 57 was premature. 29 4 ^ f % As regards the first question of the duties of the Decree Holder in the execution proceedings, firstiy, the Decree Holder has a duty to satisfy the Court that he has sued the existing party/entity. The and Z"'' respondent have conceded in their submissions that the proceedings before the Labour Officer was against the Secretary General of Evangelical Lutheran Church in Tanzania, and that the Evangelical Lutheran Church in Tanzania is a Registered Trustee incorporated under the Trustees Incorporation Act, Cap 318. Section 5 of Cap. 318 provides for incorporation of a trustee or trustees holding property in trust of religious purposes to be incorporated. It states as follows: "Notwithstanding section 2, a trustee or trustees holding property in trust for any religious, educational, literary, scientific, social or charitable purposes who has not or have not been incorporated under any law or whose incorporation is not provided by any law, shall apply for incorporation under this Act." The Registered Trustees incorporated under the Act acquires a Corporate status and under Section 8 (1) of Cap. 318 the Registered Trustees, has the power to sue and be sued in the registered corporate 30 name. This means that the corporate must sue or be sued In the name for which the entity is registered. The Labour Officer should have conducted the proceedings in the name of "The Registered Trustees of Evangelical Lutheran Church in Tanzania" which is a Registered Trust which was registered in Tanzania in 1968 under the Trustees Incorporation Ordinance 1956, and was issued with the Certificate of Incorporation No. 477". The Compliance Order issued by the Labour Officer and confirmed by the Labour Commissioner was never issued to the Registered Trustees of Evangelical Lutheran Church in Tanzania. It is the requirement of section 6(2)of the Trustees'Incorporation Act that "The name of everybody corporate created under the Act to include the words "Registered Trustees." Further, suing an officer of the Trust is not equal as suing the Registered Trustee, as the Secretary General is not a corporate body possessed with powers to sue or be sued nor are the properties of ELTC vested with him. This was clearly explained by the Court in the case of Registered Trustees of Chama Cha Maplnduzi v. 31 Mohamed Ibrahim Versi and Sons & Another, CAT-Clvil Appeal No. 16 of 2008(unreported), in which it was held was held: "Naibu Katibu Mkuu C.C.M is neither a corporate body possessed of the power to sue or be sued nor are the properties of C.C.M vested in him. if anything, he or she is a different person from the Board of trustees of C.C.M., an incorporated body on whom is vested the power to manage the properties or any business or investment of C.C.M .... The effect of incorporation of the Board of Trustees of C.C.M under the Trustees Incorporation Act, renders it a body corporate by that name (see section 8(1) and (6). Therefore, in law, the Registered Trustees of C.C.M is a separate person with its own legal identity distinct from Naibu Katibu Mkuu C.C.M." Thus, the so called Decree holders in the execution proceedings No. 37 of 2022 pending before the D/Registrar of the High Court falls short of the requirement for execution of a decree as explained above, and definitely a decree cannot be executed against a non-existing party. 32 Secondly, the Decree holder in execution proceedings has a duty to satisfy the executing court that the property mentioned for attachment beiongs to the Judgement Debtor. I see nowhere in the application for execution or in the submissions in which the decree holder has indicated that the Bank Accounts for which he wants the garnishee orders to be issued belongs to the Judgement Debtor who is the Secretary General of Evangelical Lutheran Church in Tanzania. The Decree Holder did not give the Certificates of Registration of the Vehicles to satisfy the Court that the Vehicles he asked to be attached belongs to the Judgement Debtor who is the Secretary General of Evangelical Lutheran Church in Tanzania. The Decree holder, who is the Labour Officer has mentioned landed properties in which he asked to be attached, but has shown that those landed properties belongs to the Applicant herein who Is the Registered Trustees of Evangelical Lutheran Church in Tanzania which is a different entity altogether from the person they Issued with the compliance Order. The Decree holders failed to satisfy the executing court that the property they mentioned in the application for execution belongs to the Judgement Debtor, who is the Secretary General of Evangelical Lutheran Church in Tanzania, 33 and whether the Secretary General of Evangelical Lutheran Church is an existing body corporate capable of being sued. The provisions of Order 21 Rules 57 to 62 of the CPC entitled the executing court to make a summary enquiry so that the execution proceedings may not be unnecessarily delayed it being left to the parties concerned to have their rights determined by way of a regular suit. The language of Order 21, Rule 58 indicates that both the question of interest claimed, also the question of possession of the property can be raised and can be investigated by the executing court. I agree however that the claim or objection to be investigated under Rule 59 is set out in Rule 57 as follows; any property attached in execution ofa decree. is not iiabie to such attachment..." I am inclined, therefore, to agree with the argument of learned counsel for the I®' and 2"'' Respondents that under Rule 62 the decision of the executing court must be confined to the question of who was in possession of the title on the date of the attachment. Rule 59 does require that the Objector or the Applicant must prove to the Court that 34 » X at the time of attachment the properties attached were registered In Its name, and that the judgement debtor did not have a selable Interest In the properties. In objection proceedings the claimant has to assert If he wants to save the property that the judgment-debtor has no saleable Interest In the property and though the proceedings under Order 21, Rules 57 to 62 being summary proceedings the court may not enter into an elaborate enquiry Into the question of title the court will have to be 'prima fade' satisfied that the person objecting to the attachment and sale was In possession under a 'bona fide' claim. The claim of the decree-holder to proceed against the property and have them sold In satisfaction of the decree Is not valid herein as the 1^ and 2"'^ respondent failed In their duty to establish that the judgment-debtor I.e. The Secretary General of Evangelical Lutheran Church In Tanzania Is a legal entity which Is existing capable to sue and be sued, and that It has a saleable Interest In the accounts, vehicles and landed properties at the time of attachment, on the contrary, there were prIma facie evidence adduced by the Applicant In satisfaction of Rule 58 of Order 21 of the Code that the applicant Is the registered entity of the bank accounts and was In 35 t ' possession of title to the vehicles and landed properties on the date the decree holders who are the and 2""^ respondents herein applied for execution of the Compliance Order. As to whether the application under Order XXI Rule 57 of the CPC was premature, I would say that, under Order XXI Rules 57, 58 and 59 of the Civil Procedure Code,[Cap. 33 R. E. 2019], the objection must be made to attachment of the property, however, the process of attachment begins when the decree holder asks the court through Order XXI Rule 10 of the CPC to attach the properties of the judgement debtor. If by chance or by notice, an objector comes to know that the properties mentioned in the application for execution belongs to him and not to the judgement debtor, there is no harm to apply to court as early as possible to stop the attachment processes. I am aware that Rule 57 of Order XXI says that the objector can file objection proceedings only when the property is attached, but the section did not preclude the objector from filing the objection even before the property is attached and as soon as the application for execution is filed in court; I agree with the arguments by the Learned Counsels for the Applicant that the cases cited by the Learned State Attorney on 36 this matter are distinguishable in that in the first case there was no appiication for execution fiied and pending in court, and in the second case, the objection proceedings were overthrown as the court lacked jurisdiction. For ease of reference as to when the objection proceedings can be initiated. Rules 57 of the CPC provides as under: "57.-(l) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in ali or other respects, as if he was a party to the suit: Provided that, no such investigation shaii be made where the court considers that the ciaim or objection was designedly or unnecessarily delayed. 2) Where the property to which the claim or objection applies has been advertised for sale, the court ordering the saie 37 1!' may postpone it pending the investigation of the claim or objection. 58. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. 59. Where upon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the court shall make an order releasing the property. 38 S-' - wholly or to such extent as it thinks fit, from attachment." The section was designed to give relief to the objector who was not aware of the existence of execution proceedings which were going on in the executing court before his property was attached, but even before the attachment,the objector or a claimant is not precluded from moving the court under Order 57 to ask the court to investigate his claims as soon as he comes to know that his properties or the properties from which he claims interests have been listed in the execution proceedings for attachment, and the Court can rightly issue an order to remove those properties from the list of properties to be attached in the execution of a decree. In the circumstances, and from the discussions and reasons given hereinabove, the Application is allowed. The bank accounts listed in the application for execution, i.e. Account No 01504233526700 held at CRDB Bank PLC, and Account No. 014103002064 held at NBC Limited and the Vehicles with Registration No. T600AEQ TOYOTA and T145CLC Toyota Coaster and four landed properties to wit(i) Plot No. 39 * ty 25, Blocks V, Mkundi, Morogoro which belongs to the Evangelical Lutheran Church in Tanzania, Morogoro Diocese of P.O Box 564 Morogoro, (ii) Plot No. 7-15, Block E, Kilosa Urban Area, (ill) Plot No. 7 in Morogoro Township which belongs to the Registered Trustees of the Lutheran Church in Tanganyika Synod of Uzaramo- Uluguru and (iv) Parish Quarters Plot, Mikumi Urban Area, which also belongs to the Registered Trustees of the Lutheran Church in Tanganyika Synod of Uzaramo- Uluguru are removed from the list of properties for attachment in execution of the Compliance Order issued by the Labour Officer on 1^ February 2022 and confirmed by the Labor Commissioner on 25'^ March 2022. The application is allowed. This being a labor matter, I shall not issue orders for costs. It is so ordered 0/? /: -f A -p % X v- riFA MANSOOR JUDGE 12/08/2024 40