IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAM

LOANS AND ADVANCESREALIZATION TRUST APPLICANT

PATRICK K. MUNGAYA & 46 OTHERS ... RESPONDENTS•

issued on 26th January, 2005 in Employment Cause No. 20/2002 with a view

of examining the same and satisfy itself as to their correctness, propriety,

(b) That the execution proceedings and

garnishee order for the amount of shs.

208,723,360/= served upon the applicant's

banker, Standard Chartered Bank, NIC Life

House, Dare s Salaam be ordered that is

illegal null and void;

(c) Any other relief that the court shall deem

appropriate and costs of the application.

In the accompanying affidavit, the applicant deponed that the

respondent had instituted Employment Cause No. 20/2002 by way of

a labour officers report in which the respondents were claiming a sum

of money amounting to shs. 55,455,216/=. At the end of the

proceedings and judgment, the court decided on their favour and

awarded the amount of money as prayed, concluded with the words

"no more no less". A decree to that effect was issued, dated 4th June,

2005. A garnishee order nisi was issued. However the applicant filed

an application to stay execution and lifting of the Garnishee Order

pending application for review on the ground of illegality and the

court's lack of jurisdiction. Before the hearing of the application, the

court issued Garnishee order absolute.

That the court served the branch manager of the applicant's

banker with a notice to show cause why he should not be committed

to civil prison for contempt of the court by failing to release the

garnisheed sum of shs.55,455,217/=. That was followed by the

issuing of a cheque No. 072779 of the decretal sum in the name of

Super Action Limited was drawn and forwarded to the trial court.

After the execution of the decree, the application for stay was heard

and dismissed, for reasons, inter alia, that the application had been

overtaken by events since the cheque had been cashed.

As if that was not enough, the applicant deponed that, though

execution had already been completed, yet on 4/5/2004 was again

served with a garnishee order nisi attaching shs.208,723,360 which

was predicated on same matter, Employment Cause No. 20/2002. The

applicant filed an objection proceedings on the grounds inter alia that

the purported execution proceedings and garnishee order were illegal

as the decree on the same matter had already been satisfied. However,

the application was dismissed with a further order that the garnishee

order for shs. 208,723,360/= be executed forth with.

Being aggrieved by that ruling the applicant deponed that

having been advised by his advocates that this is a suit case for this

courts exercise of its revisional and or supervisory powers over the

proceedings and orders of the lower court, that the execution

proceedings and decision complained of are tainted with illegality.

There are also errors on the face of it in that:

(a) The respondents got and executed all that they claimed in

the Employment Cause No. 20/2002.

(b) The amount sought to be executed by way of a garnishee

is fictitious as there is no decree to that effect;

(c) The agreement of 14/9/2001 referred in the impugned

decision is the very one which formed the basis of the

judgment and decree.

The respondents acted by filing a counter affidavit to the effect that he

disputed mainly paragraphs No.7, 8, 11, 12 and 15 of the affidavit. Patrick

Mungaya, (whose signature have been disputed as shown below) is

purported to have deponed in his 5th paragraph of the counter affidavit that

issue of garnishee absolute was clear for absence of stay of execution order.

In his 6th paragraph, he deponed that the applicant had abandoned his

application and that the application for stay of execution cannot in itself

amount to order of stay of execution. In his 9th paragraph, he deponed that

the document for T.shs. 208,723,360/= was served but no reply was made.

He further deponed that the decree for shs. 208,723,350/= was a different

one from the former decree and lastly that the ruling of the lower court was

properly delivered. In substance, the respondent admitted the contents of the

affidavit of the applicant save for paragraphs 7, 8, 11, 12 and 15 were true

and correct.

After the exchange of those documents inform of affidavits and

counter affidavits, the learned counsel for the parties addressed this court on

25/2/2005, which address led to the end of the proceedings, hence this ruling.

In his submissions before this court, Mr. Mapande, learned counsel

for the applicant prayed to adopt the affidavit of Mr. Mwakisu in support of

the Chamber summons as part of his submissions, though in substance, he

repeated the same in his submissions which I need not repeat. The

applicant's learned counsel submitted that the branch manager of the

applicant's bank issued the cheque for the garnisheed money amounting to

shs. 55,455,216/= on fear of being condemned to civil prison. That was

because he had been served with a notice to show cause as to why he should

not be committed to prison for refusing to issue the garnisheed money. The

court had also ordered that the cheque be drawn in the name of court broker

in the name of Super Auction Mart Ltd. The said auctioneer and court

broker was not a party to the proceedings nor was he an executing person.

Yet, the order of the court directed it to be paid to him. That action had been

repeated again in the execution order for the money in dispute. 1really don't

understand that procedure which the subordinate court adopted.

Even though the decree for shs. 55,455,216 in Employment Cause

No.20/2002 had been executed, yet another garnishee nisi was issued for the

same decree, a fact contradicting section 28 of the Civil Procedure Code,

1966 which requires that a decree once executed, it ends the matter. The

applicant filed a proceeding objection to the court but that application was

dismissed with the following words:

"1 therefore find that the submitted claim ofshs.208,723,360/=

has substantive basis and is still unpaid and indeed predicates

from the same Employment Cause No. 20/2001. 1 order that it

should accordingly be executed in favour of the respondents. It

is ordered accordingly .... "

As we shall see below, 1 don't see the basis of those strong words by

trial Resident Magistrate. 1 say so because Employment Cause No. 20/2002

which emanated from the Labour Officers report for 47 employees had been

executed as per Judgment and decree ofMafuru, Rm to that effect. 1 say so

because a decree is defined by section 3 of the Civil Procedure Code, 1966

as a final result of a suit.

In identifying another abnormality in the garnishee order, Mr.

Mapande, learned counsel submitted that it was ordered to be paid to a

stranger to Employment Cause No. 20/2002. He was one Andrew Nkwasi.

I also share the same surprise. I really don't know why the respondents were

hiding identity of the payee, and the trial magistrate agreed to be misled and

make orders which are not backed by the proceedings. Perhaps that is why

the applicants were submitting that there were grounds or reasons to believe

of the existence of fraud.

Before he made his concluding prayers, Mr. Mapande, learned

counsel wanted this court's direction as to the authentic of the signature of

one Patrick A. Muganya in the counter affidavit purported to be sworn by

him. He submitted that, that signature differed significantly with other

signatures he had signed, and that discrepancy needed no handwriting

expart to tell the difference. He called on this court to hold that the said

signature was a forged one and it is held so, then it amounts to fraud and

therefore, fraud vitiates everything. He sought authority of this court,

Mihayo J. in Tanzania Breweries Ltd. v. Alloyce Muyai Civil Revision No.

9/2004 (unreported - Dar es Salaam Registry) where his lordship said in his

ruling that "comparing of signatures is a duty of the court". He held it as

settled law. The learned counsel further called upon this court to compare

the signature appearing in the counter affidavit to those in the documents

filed in Employment Cause No. 20/2002 by Patrick Mungaya. The instances

to be compared are:

(1) Legal arguments for violation Payments claims of the 47

workers filed on 11/8/2003;

(2) Tarehe za Mahudhurio Mahakama Kisutu" i.e. date of

attendance at Kisutu Court.

(3) Counter affidavit dated 18/5/2003

(4) Application for execution of decree

(5) Affidavit dated 24/7/2003.

The learned counsel ended his submissions by saying that in

view of the differences in the signatures, which lead to forgery, whose

consequence is to vitiate everything, then all the proceedings in the

lower court be declared a nullity so that the decree and the garnishee

order for the tune of shs.208, 723,360/= be declared illegal, nullity and

void.

In his reply to the submissions by the learned counsel for the

applicant, Mr. Muyovela, learned counsel for the respondents

submitted that even if there are slight differences in the signatures of

Patrick Mungaya in the counter affidavit and those other cited

documents, yet he is the very one person who signed them. He had

nothing to fear of cheat when filing the counter affidavit. That

counter affidavit is just a requirement that should be filed. He further

submitted that, that was a document filed which is a different thing

from a document tendered during the proceedings in support of

something. Therefore, the cases cited are differentiated, from Mr.

Patrick Mungaya was just fulfilling the requirement of the law or

procedure and not proving anything.

On the main application, that is the garnishee order dated

5/4/2004 for shs. 208,723,360, he submitted that it was the difference

of the money paid in respect of the Resident Magistrates Employment

Cause No. 20/2002. He said further that, the said amount of money

had been agreed between the members of TAFCO and the Liquidator

who is the applicant. That the applicants having been served with the

documents annexutre DI, they failed to respond at the subordinate

court, a fact which led to the issuing of the garnishee nisi to the

applicant's banker, the Standard Chartered Bank. The learned counsel

further submitted that having failed to respond further, a garnishee

absolute was issued, basing on the judgment ofMafuru, Rm in

Employment Cause NO. 20/2002. The learned counsel did not agree

with the submissions of the applicant's advocate, that the judgment of

Mafum, Rm, was conclusive.

Before I proceed, I would like to say that the judgment of

Mafum Rm resulted from the labour officer's report made under

section 132 to a magistrate, Employment Ordinance, Cap. 366. In

that report, the labour officer included only 47 employees who were to

be paid a total of shs. 55,455,216/=. The judgment of Mafum, Rm

was for that sum couched with the words "not more, no less". That

was not enough, but a decree for execution of the sum of

shs.55,455,216/= was prepared in conformity with the judgment as

required under xxr 6 of the Civil Procedure Code, 966. The decree

specified the amount of money due, which was shs. 55,455,216/= and

the names of the parties were those appearing in the Labour officers

report, whose leader was Patrick K. Mungaya. I don't see, how

Patrick Mungaya went again to the court to seek for more payment

while he had already been paid in full together with the 46 others.

The judgment of Mafum, Rm did not extend to beyond the amount of

money stated in the decree which was fully paid to the decree holders.

Mr. Muyovela, learned counsel submitted that there was a

balance of money to be paid in accordance to agreement between

TAFCO members and the applicant. There is no where in the

Employment Ordinance Cap 366 where it is stated that if there are

such agreements, they could just be executed in a court of law. The

courts do execute its decrees and nothing else.

I am sorry to say that the learned Resident Magistrate, Mr.

Mutungi, either deliberately or otherwise, was persuaded to execute a

non existing decree. In his many, but self centred words, appearing in

his 7th page of the typed ruling, he said:

"What I can now only construe to be the factual status, is that,

the amount now in dispute is the projected and or extracted less

payments or variations to the payment otherwise eligible to

have been paid to the respondents as ordered by this court in the

cited judgment, which I dully find forms basis to this matter as

well."

The learned Resident Magistrate chose to cheat himself and the

respondents when he based his ruling on the judgment of Mafuru, Rm. That

judgment was conclusive by itself and it did not need to be supplemented by

another ruling. Therefore then, the judgment of Mafuru, Rm was final and

conclusive as far as the Employment Cause No. 2012002 in regard to Patrick

K. Mungaya and 46 others was concerned.

The learned Resident Magistrate, in saying that "the amount now in

dispute is the projected and or extracted less payment or variations to the

payments otherwise eligible to have been paid to the respondents as ordered

by this court "was nothing but alteration of the courts decision, which he had

no legal powers to add or decrease as to what the said court had said. To do

as to what he did, was a contravention of section 96 of the Civil Procedure

Code, 1966 which deals with amendments of judgments, decrees or orders.

The court has only powers to correct clerical or arithmetical mistakes in

judgments, decrees or orders of errors arising therein from any accidental

slip or omission. Those could be corrected at any time by the court either of

its own motion or on the application of any of the parties. The trial Resident

Magistrate was not doing that, he was actually executing a non existing

judgment and a decree, but pegging his illegal ruling on an already executed

decree of the said court. That is no wonder, because he was persuaded to

allow a stranger to proceedings to be paid the garnisheed money, a fact

which would have created another problem, if the money could not have

reached the decree holders if any.

Mr. Muyovela, learned counsel for the respondents submitted further

that both applications before the subordinate court and before this court be

struck out because the money which were to be garnisheed at the Standard

Chartered Bank was the property of the applicants and the lower court was

entitled to disallow the claim. The basis of that submission is rule 60 of Ord.

XI. He prayed that the execution of the garnishee nisi be allowed. The

applicants learned counsel replied to the effect that the objection is to the

execution of the decree which had already been executed, so their claim

should not be disallowed. Their objection to attachment was in conformity

with r.58 of ord.xi. What I had been saying at length is that, the application

was and is competent before the lower court and before this court. It is

aimed at preventing an illegality which was about to be committed. The

illegality being the attachment of the applicants bank account, which was

soon to be released by the Standard Chartered Bank. Thus the objection

before the lower court and before this court was properly made before the

courts in objection to the said attachment of money in execution of a non

existing decree.

In the chamber summons, the applicant requested for the calling of the

records of the proceedings, ruling and order of the Resident Magistrate's

Court at Kisutu, issued on 26/1/2005 in Employment Cause NO. 20/2002

with a view of examining the same and satisfy itself as to their correctness,

propriety, legality or otherwise. From what I have already endeavored to

show in this ruling, it is clear that those proceedings and ruling were not

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correct in the sense that there was no judgment and a decree to be executed

and or executed on 26/1/2005 in the employment cause No. 20/2002. they

were neither propriety or legal proceedings before the court, hence, they are

quashed and set aside. The execution proceedings as well as the garnishee

order for the amount of shs. 208,723,360, served upon the applicant's

banker, Standard Chattered Bank, NIC Life House, Dar es Salaam is illegal,

null and void. The application is therefore granted as prayed. Usually, costs

for orders are not made in Employment cause, but having found that those

execution proceedings were just illegal and non existing on the face of it,

coupled with a lot of doubtful dealings, the applicants are entitled to the

costs oftl~e suit, in this court and at the Subordinate court. It is so ordered., •• t \1 co... .

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A.R.· ManentoJAJI KIONGOZI.~_.i

";.,, .25·.4..2005"·~' ".'

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For the ApI2licant - Absent

For the Respondent - Patrick Mungaya present in person.

Order:

Ruling delivered today in chambers 25/4/05 in the presence of the

Respondent in person. The applicant is absent with notice.

A.A. ShayoREGISTRAR

HIGH COURT

25/4/05