uap insurance tanzania company ltd vs akiba commercial bank plc 2022 tzhccomd 79 14 april 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 47 OF 2022 (Arising from Execution Proceedings in respect of Commercial Case No. 24 of 2018) BETWEEN UAP INSURANCE TANZANIA COMPANY LTD........... APPLICANT AND AKIBA COMMERCIAL BANK PLC ............................. RESPONDENT Date of last Order: 8th April, 2022 Date of Ruling: 14th April, 2022 RULING MKEHA, J: The present application moves the court to lift Garnishee Orders Nisi earlier issued against the Judgment Debtor's Bank Accounts with Numbers: 3300286883 held at KCB Bank Limited, 021000001301 held at AZANIA BANK LIMITED and 10031910015 held at NCBA Bank Limited. The said orders were issued at the instance of the Decree Holder when she sought assistance of the Executing Court to have her decree of TZS 3,984,787,553.66 executed. After the respective Bank Managers had 1 | P a ge complied with the ex-parte court orders requiring them not to remit any part of the monies held in the respective Bank Accounts to any person without further orders of this court, the Judgment debtor approached the Court of Appeal for an order of stay of execution. On 2nd March 2022 the Court of Appeal issued an order to the effect that, pending hearing of the matter inter partes before the Court, execution of the decree of this court in Commercial Case No. 24 of 2018 be stayed. Fortunately, when the stay order was issued, Garnishee Orders Absolute had not been issued. On 4th April 2022, the Judgment Debtor, acting through Mr. Richard Rweyongeza learned advocate, filed the present application. The application was filed under sections 38 (1) and (2) and 95 of the Civil Procedure Code. The same is supported with an affidavit sworn by Mr. Nelson Alfred Rwihula, the Finance Manager of the Judgment Debtor. The application is resisted through the counter affidavit sworn by Mr. James Andrew Bwana, the Decree Holder's advocate. Although the learned counsel for the parties submitted at length regarding the application, I do not consider it necessary to reproduce all the submissions. Likewise, not all the cited authorities will be referred to in this ruling. 2 ] Page The most relevant part of the applicant's submissions as ably submitted by Mr. Rweyongeza learned advocate was to the following effect: That, so long garnishee orders absolute were yet to be issued by the executing court, the hands of the court are not tied to lift the garnishee orders nisi. Mr. Rweyongeza submitted also that, the applicant did not ask the Court of Appeal to lift the Garnishee Orders Nisi because of the fact that, an order of stay of execution has similar effect with an order of lifting attachment warrant. The case of TANZANIA MOTORS SERVICES LTD VS TANTRACK AGENCIES LTD, CIVIL APPLICATION NO. 86 OF 2004, CAT, AT DSM, was cited. In terms of paragraphs 8 & 9 of the applicant's affidavit, whereas an order staying the decree of this court was issued on 2nd March 2022, the applicant had not been able to access her bank accounts since when the Garnishee Orders Nisi were served to the three Banks in January 2022. Not even after issuance of the stay order. Mr. Bwana learned advocate submitted in reply that the order for stay of execution by the Court of Appeal directed this court to stop any proceedings of execution nature arising out of this court's decree in Commercial Case No. 24 of 2018. In view of the learned advocate, this court lacks jurisdiction to entertain the present application. According to 3 | Page the learned advocate, the application invites the court to alter its orders, part of the execution process ordered to be stayed by the Court of Appeal. The learned advocate insisted that, staying execution is not semantically similar to lifting an attachment order. He condemned the applicant for failure to ask the Court of Appeal to order lifting of the Garnishee Orders Nisi. Mr. Bwana learned advocate asked the court to end where it had reached when the stay order was issued. Mr. Rweyongeza (earned advocate rejoined by insisting that the applicant did not move the court to deal with execution of the decree but to implement the order of the Court of Appeal which stayed this courts decree. The rest part of the rejoinder was reiteration of what had been earlier submitted in chief. The only determinative issue is whether this court lacks jurisdiction of entertaining an application aiming at implementing the appellate court's order for stay of execution. It is true that when a notice of appeal is filed at the Court of Appeal, the trial court is barred from entertaining any other matter relating to the decision appealed against. Applications for execution of court decrees fall within the exception to the rule hereinabove. That is why the Judgment Debtor had to move the Court of Appeal for an order of stay 4 | Page of execution which she obtained on 2nd March 2022. The said stay order, was issued after this court had issued Garnishee Orders Nisi against the Judgment Debtor's three distinct Bank Accounts. According to Mr. James Bwana learned advocate, following issuance of an order of stay by the Court of Appeal this court lacks jurisdiction of not only entertaining further execution proceedings but also issuing orders having effect of implementing or complying with the Court of Appeal's order for stay of execution. I respectfully hold a different view. Issuance of the Garnishee orders Nisi by this court was a step towards execution of the stayed decree. Although the stay order does not in itself reverse the legal position declared by the trial court, in principle, pursuant to a stay of a decision by a higher judicial authority the stayed decree cannot be given effect to until the period of the stay order expires. While I agree with Mr. James Bwana learned advocate that staying execution is not semantically similar to lifting an attachment order, I do not agree with him further that, the two have different effects. As it was held by the Court of Appeal in TANZANIA MOTORS SERVICES LTD VS TANTRACK AGENCIES LTD (supra), whether the attachment order is raised or execution is stayed, the end result is the same, that is, the 5 | Page execution of the decree is stayed. That being the position, when a stay order is issued the trial court's judgment cannot be executed or implemented. The execution process stands suspended. At that time, what is to be given effect is implementation of the stay order. The executing court remains with jurisdiction of entertaining all matters having effect of implementing the stay order. An application for lifting Garnishee order Nisi is one of such applications which can be entertained by the executing court in view of implementing the stay order. Vacation of previous attachment orders by the executing court, for purposes of implementing the appellate court's stay order is permissible. For the foregoing reasons, I hold the application to be meritorious. The court hereby orders lifting of Garnishee Orders Nisi dated 10lh January, 2022 against the applicant's Bank Accounts with Numbers: 3300286883 held at KCB Bank Limited, 021000001301 held at AZANIA BANK LIMITED and 10031910015 held at NCBA Bank Limited. The application is allowed. No order is made as to the costs. DATED at DAR ES SALAAM this 14th day of April, 2022. C.P. KEHA JUDGE 6 | P a ge 14/04/2022 Court: Ruling is delivered on this 14th day of April, 2022 in the presence of the parties' advocates. 7 | Page