Adam Messer v Honora Tanzania

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 21861 OF 2024 (Originating from Misc. Commercial Cause No.3 of 2004) ADAM MESSER …………………………… 1ST APPLICANT WILLIAM SANGIWA ……………………………. 2ND APPLICANT VERSUS HONORA TANZANIA PUBLIC LTD CO. (form erly, M I C TAN ZANI A LTD ) …………………………… RESPONDENT RULING Nov. 25 , 2024 & March 14 , 2025 th th Morris, J Time has run against the applicants. They intend to execute a decree of this Court emanating from Miscellaneous Commercial Cause No. 3 of 2004 (the Cause). Through the present application, the duo is moving the Court to sanction an extension of time for them to apply for execution of the subject decree. The affidavit of their counsel, Lameck Justus Muganyizi, supports the application. However, the respondent contests the application vide a counter affidavit of Rosam Mbwambo, learned advocate. 2 The relevant history of the matter is easy to account. The applicants won an arbitral award against the respondent on 01.12.2003. Consequently, through the Cause, the award was filed in this Court on 09.02.2004 and decree extracted therefrom on 10.02.2004. The respondent’s efforts to set aside the award were unfruitful. His petition thereof was dismissed on 25.06.2004. The dismissal of the petition was challenged twice by the respondent in the Court of Appeal. That is, appeal no. 98 of 2004 and no. 72 of 2010 respectively. Yet, he was unsuccessful. Both appeals were struck out for want of competence. Nevertheless, the respondent secured the Court of Appeal’s order to stay execution on 30.09.2004 pending the former appeal. Thereafter, parties were involved in other protracted litigations and negotiations which also ended in vain. Thus, by September 2024 when the applicants finally resorted to executing the decree; time was no longer their best ally. This application has been filed on such background. From the affidavit, the applicants state that the delay herein was occasioned by several factors. The applicants’ reasons for not acting timely include: the respondent’s appeals to the Court of Appeal; applications for 3 stay of execution and extension of time; prolonged discussion for amicable settlement of the matter; demise of their previous advocate (Late Dilip Kesaria); challenges by a new lawyer to access the cases records from the Court and/or the predecessor lawyers’ offices; and perusal and preparation for the filing of the present application by the newly-instructed lawyers. However, the respondent disputed most of the applicants’ averments above. To him, the applicants did not comply with the mandatory procedures of registering the award and the court did not register the award as its decree. Further, he asserted that his appeals or applications or negotiations mentioned by the applicants did not bar the latter to take necessary steps in time. Thus, they crystalised that the applicants were not prevented by any just cause to deserve the application at hand. Parties were ordered to argue this application by filing written submissions. The lodging-schedule was complied with. Advocate Lameck Justus Muganyizi represented the applicants. The respondents had services of John James, also learned Advocate. Primarily, the applicants’ submissions adopted and referred to the relevant depositions in both affidavit and reply to counter affidavit to support the application. 4 The most basic insistence were the statements that: the applicant was diligent in pursuing justice; he was prevented by ‘technical delay’ to act timely; lateness to know the Court of Appeal’ decision; and the engagement of a new lawyer for remedial measures. Apart from accounting for the historical chronology of events, the applicants’ counsel submitted that the execution of the Decree was initially stayed from 2004 to 2013. In support of such position, he cited section 22 of the Law of Lim itation Act, Cap 89 R.E. 2019 (the Lim itation Act ); and Claude David Herssens & Another v ASM (T) Lim ited & Another, Com m . Case No. 146 of 2023 (unreported) to the effect that time within which an order for stay exists is exempted in computation of the time limit. In alternative, it was submitted that the applicants spent considerable time defending the respondent’s application for extension of time together with the resultant appeal. To them, the applicants were never irresponsive to the time factor. Another line of argument for the applicants was that after 2013, the respondents involved into fraudulent actions in order to circumvent the decretal reliefs. That is, the respondent dragged them into protracted negotiations and promises to settle the decree to no avail. Reference was 5 made to section 39(2)(a) of the Civil P rocedure Code , Cap 33 R.E. 2019 (the CP C ); M ulla on Civil P rocedure (3rd Edition); Adaikappa Chettiar v Natesan Chettiar, AIR 1931 MADRAS 381 (para 7); and P. Abdul Khadir v Ajiyar Aham m ad Shaiw a R avuthar & Four Others (1912) ILR 35 MAD 670 to buttress the contention that “fraud” in the context of execution entails every “improper attempts to defeat the execution.” In this regard, they asserted that the period constituting fraudulent-cause of the delay by the respondent should be exempted from accounting for the delay herein. To confirm further that they did not sleep on their rights howsoever, the applicants submitted further that their former lawyer (the late D. Kesaria) passed on in 2022. Nevertheless, they engaged another law firm (VELMA Law), which had to review documents forthwith. However, the latter was unable to access the prior to 2023. In line with M oham ed Enterprises (T) Lim ited v Thahn Hoa Ltd Co. & Others, Misc. Civ. Appl. No. 220 of 2023 (unreported), the applicants argued that when the applicant is found to be diligent in pursuing justice, extension of time should be granted for him to file execution proceedings. 6 Further reliance by the applicants was on sections 27(3) and 28 of the Lim itation Act . It was contended hereof that the respondent acknowledged being indebted to the applicants on multiple instances and recorded several promises to pay to no heed. To them, such written acknowledgements of the decretal debt led to fresh accrual of the right to execute the decree in favour of the applicants. They were also swift to contend that the respondent’s argument that there was no decree following registration of the award was flawed. To them, the respondent was aware of the existence of the decree such that he applied for stay of execution in the Court of Appeal and sought extension of time to appeal. The foregoing contention was armor-plated by reference to the estoppel principle. That is, for him to seek stay of execution of the decree, the respondent was not only appreciating its existence but he also annexed it to the requisite applications. To buttress this position, the applicants cited the cases of R iakdit Barnabas v BP Tanzania Ltd, Civ. Appeal No. 40 of 2015; Consolidated Holding Corporation v Jit Finance Lim ited & Others, Civ. Appl. No. 120 of 2003; and John Gim unta v Joseph Obeto, Civ. Appl. No. 173 of 2007 (all unreported); together with Rule 11(7)(b) of 7 the Court of Appeal R ules , 2009. In Conclusion, the applicants prayed for the reliefs in the application. The reply submissions were by Advocate John James. He started by praying to adopt all depositions in the counter affidavit. He then proceeded to attack the way the award was purportedly registered. To him, a foreign arbitral award could not be filed, recognised and enforced by the court as its decree hardly within a day of filing or before the parties were notified and/or in their absence. So, to him, there was no decree warranting the applicant to apply for the extension of time so as to execute it. Apart from arguing that the procedure for filing the award was unlawful, the respondent also cited that the mandatory provisions of the now-repealed Arbitration Act and Arbitration Rules [section 12(2) and rule 4 respectively] were not complied with. Further, the respondent submitted that, even if the procedures were perfectly complied with, the award was not registered as the decree. To him, for the decree to result therefrom, the procedure to transform the award into a decree required further compliance to sections 17, 29, 30, 31 and 8 32 of the repealed Arbitration Act . He argued that such obligatory procedure was not adopted too. Regarding the applicant’s argument that the respondent applied for a stay of execution of the decree, the latter asserted that the decree was extracted 24 years later, on 23.03.2024. To him the inconsistency raised grave concerns over both existence and authenticity of the decree. Further, he argued that his stay of execution at the Court of Appeal was in relation to a petition challenging the ruling of this Court (Hon. Kimaro, J.) of 24.06. 2004. Hence, the respondent contested the applicant’s position that the stay of execution barred them from taking necessary action. That is, the respondent never applied for or obtained an order staying execution of the purported decree of 10.02.2004. In other words, even if there existed the claimed decree, there was no court order staying it. Another line of defence by the respondent was that, in a disputable assumption that the order for stay of execution issued in relation to the alleged decree, the subject order was specific to Civil Appeal No. 98 of 2004 which was struck out in 2009. Therefrom, there was no order to obey. Hence, the applicants were free to execute what they believed was their decree. In 9 the absence of such order, therefore, the applicants must account for each day of the delay effective from 2009 in line with section 22 of the Lim itation Act . In this regard, the respondent contended that the applicants’ argument that the subsequent appeal was equally stayed by the previous order was illegitimate. In addition, the claim by the applicants that the delay from 2009 to 2013 was due to defending the respondent’s applications was argufied. To the respondent, these proceedings did not amount to stay of execution anyhow. Moreover, he submitted that sheer pendency of appeals does not bar the executions of decrees. As for the stated negotiations, the respondent replied that the same never fell under the domain of fraud pursuant to section 39(2)(a) of the CPC . He added that challenging the award cannot constitute fraud; so are negotiations. To him, the negotiations in the present matter were conducted on a without prejudice basis. Thus, they did not stop the limitation period from running per R egistered Trustees of Africa I nland Church Tanzania v CRDB Bank P LC & Others, Comm. Case No. 7 of 2017 (unreported); and duration for the same could not be excluded under section 27(3) of the Lim itation Act. 10 To conclude, the respondent asserted that the application should fail with costs because filing of the award was unlawful; there existed no decree dated 10.02.2004; time was not stopped by the alleged parties’ negotiations; the claimed debt-acknowledgements were conducted on without prejudice basis; and the applicants failed to account for each day of the delay. In rejoinder, Advocate Muganyizi submitted for the applicants that, the registration and recognition of the award was not in issue at this stage. Nevertheless, he proceeded to argue that the respondent’s submission on such aspect was an afterthought because all along the respondent never raised the issue of non-compliance in his previous contentious proceedings. The applicants added that as long as the decree existed on record having resulted from the award, it was obvious the court satisfied itself that the procedures were complied with fully. It was added that the respondent could not be allowed to challenge the existence of the decree for which he was challenging its execution by pursuing the stay order from the Court of Appeal. The applicants also rejoined regarding the respondent’s acknowledgements of the debt from negotiations conducted on without 11 prejudice basis. He argued that not all correspondences made on such basis do not form part of evidence as there are exceptions to the general rule. Reference was made to sections 25 of the Evidence Act , Cap 6 R.E. 2022; 27 & 28(5)(e) of the Lim itation Act ; Ex im Bank Tanzania Lim ited v Trulite I nvestm ent Lim ited & Others , Civ. Appl. No. 446/16 of 2020 (unreported); Unilever P LC v The Procter & Gam ble Com pany , [1999] EWCA Civ 3027; and Rush & Tom pkins Ltd v Greater London Council [1988] UKHL 7. Moreover, the applicants contended that they accounted for the delay. He impressed upon the Court that, in Tanzania execution can be stayed indirectly and proximately. In view of the rival affidavital depositions and submissions of the parties, the Court is now set to determine whether grounds advanced by the applicants are sound enough to warrant this Court to allow the application. Law is settled that the applicant should demonstrate sufficient reason(s) as to why he/she did not take the necessary step(s) in time. In so doing, he/she will discharge the obligation of proving how each day of delay justifiably passed by at no applicant's fault. 12 For the above position, see for instance, Ham is Babu Bally v The Judicial Officers Ethics Com m ittee and 3 Others , Civil Application No. 130/01 of 2020; Lyam uya Construction Ltd v Board of R egistered Trustees of Young W om en Christian Association of Tanzania , Civil Appl. No. 2 of 2010; and Eliakim Sw ai and Frank Sw ai v Thobias Karaw a Shoo , Civil Appl. No 2 of 2016 (all unreported). These cases reaffirm the principle that extension of time will be sustained if: the applicant accounts for delay; the delay is inordinate; he exerted necessary diligence; there is presence of illegality to be cured; and if there exists ‘technical delay’ whereby the applicant spends time pursuing a matter which is later found to be incompetent. Besides, the law sets time limits not for cosmetic reasons. There are objectives to achieve. One, to promote the expeditious dispatch of litigation [Costellow v Som erset County Council (1993) IWLR 256]. Two, to provide certainty of timeframe for the conduct of litigation [R atm an v Cum ara Sam y (1965) IWLR 8]. Three, to enhance public trust to the judicial system. Four, to manage resources effectively. Consequently, it works in the advantage of party’s proper management of time and money. 13 Furthermore, undisputable is the position of the law that the Court’s power to extend time is discretional in nature. But such discretion is exercisable judiciously. That is, free from personal whims, sympathy, empathy or sentiment. See, Bakari Abdallah M asudi v R epublic , CoA Criminal Application No. 123/07 of 2018 and Bank of Tanzania v Lucas M asiga , Civil Appeal No. 323/02 of 2017 (both unreported). In this matter, the applicants rely on a number of reasons for not taking the essential steps in time. From the affidavits herein, the delay period in this matter can be categorised into three sections. Firstly, the time when the respondent was challenging this Court’s refusal to his petition to challenge the award, including pursuit of the order for stay of execution. Secondly, the time from when the Court of Appeal struck out the respondent’s last appeal; demise of the applicant’s previous advocate; and parties’ involvement into amicable negotiations. Thirdly, the period from when the applicants allegedly instructed the current counsel to the time of filing the application at hand. Basing on the uncontroverted facts in this application, this application was filed in September, 2024. Likewise, the time limit to execute the court’s 14 decree is twelve years. Working on the assumption that the decree subject of this application was given in 2004, such duration was exhausted around 2016. Thus, from 2016 to 2024 the delay herein would work out to about eight (8) years. The applicants contended that the first section of delay above was utilised in defending the respondent’s back-and forth litigations both in this Court and in the Court of Appeal. This section attracted a stern contest from the respondent. In his view, the former were not impeded by the proceedings in the Court of Appeal because the same had no direct bearing to the registration of the award but rather the same were connected to this Court’s rejection to set aside the award. Yet, the respondent argued that: the award was unprocedurally registered by this Court; there was no decree to execute; and if it ever existed, its execution was not stayed. Regarding this point, I find that the mixed aspects call for detachment before the court deliberates thereon. Important to the present application, is the applicants’ manifestation of the sufficient grounds for them not to take the requisite steps timely. Thus, as correctly asserted by the applicants, it serves no legal value for the respondent to contest the procedure through 15 which the decree was obtained; and/or if the decree relay exists or not. These proceedings do not relate with determination of the legality of the decree. Threading on such route, the Court will be adjudicating on extraneous matters which it has not been invited to entertain; and/or which are finally settled in the light of the proceedings which were terminated by the Court of Appeal. Further, as the respondent was vehement to impress upon the Court that the applicants herein are indeed time barred, it beats logic for him to challenge the existence of the decree. That is, in the absence of the decree, the contention transforms into one of challenging the competence of the application (which would pursue extension of time to enforce emptiness). Moreover, for the applicants to succeed in satisfying this Court that the period used in the Court of Appeal was to be excepted, a couple of proof were mandatory. One, whether at or during that time, they were already time-barred. Two, if the proceedings stayed the execution of the decree. Three, whether they had taken necessary steps to execute the decree. On record, the first appeal was struck out in November 2009. The second appellate attempt did not make it beyond 2013. Now, with or without the 16 order for stay of execution, the two appeals were terminated while the applicants were still in time to execute the decree. Consequently, the discussion for the delay by involving such litigations is inconsequential. Further, it is indeed undisputed fact that the applicants up to end of the duration in the first section, they had not filed any application for execution of the decree. The second section involved allegations of negotiations towards compromise of parties; passing on of the applicants’ former advocate; instruction of the present representative; and unavailability of the court records within time. This section did not attract serious contention from the respondent save for the nature of the claimed negotiations and the impact to the present matter. While the applicants argued that the negotiations were bonafide and that they put adequate attention to such steps with the view to resolving the disputes between them and the respondent; the latter contended that such negotiations did stop the time limitation nor did they qualify as evidence in the spirit of without prejudice foundation. Further, it was argued by the applicant that the negotiation resulted into compromise agreement but the respondent strongly denied such 17 averments. Correspondingly, the applicants equated the respondent’s tactical involvement into the negotiation with fraud, the respondent argued that the contemporary society favours amicability of parties in dispute than otherwise. Hence, his involvement was nothing near a fraudulent scheme. This examination will not detain the Court for so long. Parties to this case do not dispute being in discussion to resolve their problem for a considerable long time; the death of the predecessor counsel and the applicants’ engagement of the present advocate. In their affidavit (paras 13- 16) it was deposed by the applicants that the respondent “engaged the applicants in lengthy negotiations with the view to conclude this matter amicably out of Court”. In the counter affidavit, the respondent responded in favour of existence of lengthy negotiation under paragraph 11 thereof as below. “11. That the Respondent notes all w hat is stated in paragraphs 13, 14, 15 and 16 to the extent that the parties attempted a settlem ent on several occasions. It is stated nevertheless, that no agreement was fully reached and executed. I state further that the Applicants’ attempts to enforce the said negotiations, agreem ents and purported acknow ledgm ent by way of a suit, Commercial Case No. 87 of 18 2023, failed when this suit was dismissed on 20/10/2023, as per Annexure A15 to the Affidavit” [bolding rendered for emphasis]. From the foregoing excerpt, the respondent admitted that parties had occasions of attempted amicable settlement; which the applicants later failed to enforce. To me, the applicants put necessary efforts to resolve the dispute amicably despite two advantages over the respondent: they had defeated the respondent in every contentious proceeding he mounted; and they had with them the decree in hands. If anything, the ultimate great beneficiary of the amicable settlement was the respondent. It is on such basis; I hereby hold that they were prevented with sufficient reason to hold on execution awaiting the opposite party to meet them to a mutuality point. I am now left with the third and last section of the delay. Under this section, the applicants deposed that upon instructing the new lawyer to take up the matter, the latter started off immediately only to meet the missing record of the Court and/or the clients’ files (paras 17-26 of the affidavit). However, the respondent did not contest the instructions to the new lawyer and his hard work to access the necessary record. However, he 19 stated that the time spent by the subject counsel was inordinate. I have taken liberty to pass through the documents attached to applicants’ affidavits. They are voluminous and dense enough. For someone new to the assignment; and in view of the winding trends the whole matter had passed through in about two decades; the sensible professional would really require ample time to separate the grain from the chaff prior to once again resorting to the Court. In the present matter, per the affidavital deposition, the subject counsel spent time from March 2024 to July 2024 to prepare and file the first application for extension of time; which proceedings were withdrawn with liberty to refile in September 2024; and the matter at hand was relodged in the same month. In a befitting case, time to prepare the court documents is exempted from the applicant. The duration which the court considers as reasonable depends on case-to-case basis [see, M urtaza M oham ed R aza Viran v M ehboob Hassanali , Civ. Appl. No. 448/01 of 2020; and Attorney General v Oysterbay Villas Lim ited & Kinondoni M unicipal Council , Civ. Appl. 299/16 of 2016 (both unreported)]. Thus, because Mr. Muganyizi deposes that after being instructed his firm forthwith 20 took it up an assignment to have this application filed, the Court finds that the time spent hereof has also been accounted for. In view of the above analysis and discussion, the applicants have exhibited sufficient reasons for the delay. For the stated reasons in this ruling, I find that this Court has been legitimately moved to extend the time hereof. This application, thus, is found to meet the requisite excellence. It is accordingly sustained. The applicants are hereby given fourteen (14) days to file the intended application in case they still desire to do so. In the circumstances of this matter, I order no costs. It is so ordered. C.K.K. Morris Judge March 14th, 2024