registered trustees of bakwata vs registered trustees of dodoma general muslim association 2017 tzhc 2183 21 march 2017

IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. CIVIL APPLICATION NO. 19 OF 2016 (Arising from Civii Case No. 6 o f2001 of the High Court of Tanzania at Dodoma) REGISTERED TRUSTEES OF BAKWATA........................ APPLICANT VERSUS THE REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIM ASSOCIATION........................... RESPONDENT RULING 27/2 & 21/3/2017 KWARIKO. 3: The respondent in this application won a suit against the applicant herein in Civil Case No. 6 of 2001 before this court in a decision dated 30/10/2009. Now the applicant has filed this application for the following orders; 1. That, this Honourable Court be pleased to enlarge time for the Applicants to apply to this Honourable Court to issue notice for the Respondents to show cause why the payment made to them on 30/4/2015 in settlement of the decree in Civil Case No. 6 of 2001 dated 30/10/2009 should not be certified by this Honourable court as full payment and satisfaction of the said decree. 2. Costs of this application to be born by the Respondents. 3. That, this Honourable Court be pleased to grant any other relief (s) as it deems fit to grant. This application which has been filed through MACHIBYA PROFESSIONAL ATTORNEYS is brought in terms of section 14 (1) of the Law of Limitation Act [CAP 89 R.E. 2002], Rule 2 (2) of Order XXI and section 95 of the Civil Procedure Code [CAP 33 R.E. 2002]. The application is further supported by the affidavit of one SULEIMAN SAID LOLILA a Trustee and Secretary General of the applicant where grounds for the delay have been given. On the other hand in response to the foregoing, the respondent opposed this application through the counter-affidavit of one ALLY MUSSA NKHANGAA their advocate. During hearing of this application Mr. Machibya learned advocate for the applicant adopted the affidavit in support of the same and went forth to explain that in a bid to satisfy the decree in Civil Case No. 6 of 2001 against the applicant an agreement was entered between the parties on 30/4/2015 where the applicant being judgment debtor paid Tshs. 330,000,000/= to the respondent being decree holder to settle the same. That, before the agreement was registered in this court the applicant's Mufti Sheikh Issa Shaaban Bin Simba fell ill in May, 2015 and died in June, 2015. That, due to the death of the Mufti the leadership was shaken and process to get his replacement started. That, after the election and installation of another Mufti it was found that the time to register the agreement had elapsed and more so the new Mufti needed to be abreast of all matters concerning the institution before any legal steps were taken. Thus, after he was informed that time had elapsed to register the agreement then they decided to file this application. He prayed for this application to be granted. In reply to the foregoing Mr. Nkhangaa learned advocate for the respondent contended that the alleged agreement was concluded on 30/4/2015 whereas this application was filed on 08/6/2016 about eleven months later. Thus, the applicant ought to give sufficient reasons why he delayed to comply with the law. It was Mr. Nkhangaa's submission that although there is no hard and fast rule on what amounts to sufficient cause but each case ought to be decided on its own peculiar circumstances. He buttressed this argument with the case of BENEDICT MUMELO V BOT, Civil Appeal No. 12 of 2012, Court of Appeal of Tanzania at Dar es Salaam (unreported). He therefore charged that in the case at hand the applicant was not prompt to file the application and the delay was inordinate. As for the reason of the death of the Mufti Mr. Nkhangaa argued that there were two months between the said payment and the death of the Mufti hence the applicant ought to have used that period to register the agreement. He was of the view that there was no connection between the death of the Mufti and delay to register the agreement. Additionally, it was argued for the respondent that the said Mufti was not personally charged with duty to file cases in court but the trustees who would have taken care of the matter. Also, Mr. Nkhangaa submitted that there have been execution proceedings in this court between 19/2/2015 and 13/1/2016 hence if there was such agreement the applicant would have come forward to reveal it in court. Further, that this application is not entertainable since it emanates from execution proceedings and Mr. Nkhangaa cited section 14 (1) of the Law of Limitation (supra) to support his contention. Lastly, Mr. Nkhangaa learned advocate argued that the said decree was not in monetary form hence if the application is granted it would amount to abuse of court process. He therefore prayed this application to be dismissed. In his rejoinder submission Mr. Machibya learned advocate argued that this case be decided on its peculiar circumstances as per the cited case of BENEDICT MUMELO V. BOT (supra). Also, since the said Mufti fell sick soon after the agreement and since he was head of the Institution nothing could have been done by the trustees. As for the allegation of pendency of execution proceedings Mr. Machibya argued that no evidence to that effect has been tendered. That, the said application was not execution proceedings and it was found to have been misplaced. In relation to the application of section 14 (1) of the Law of Limitation Act, Mr. Machibya contended that the applicant is not applying for extension of time to execute the decree for that law to apply and also such kind of application can only be filed by the decree holder who in this case is not the applicant herein. As regards to the nature of the decree it was submitted for the applicant that that is the point to discuss once this application is granted and the intended application is filed. But he said that Order 21 of the Civil Procedure Code provides option to adjust decree at the instance of the parties. From the submissions of the counsel for the parties this court is required to decide whether this application has merit. As rightly shown in the cited case of BENEDICT MUMELO V. BOT (supra) to grant or refuse extension of time to do something is entirely in the discretion of the court and that each case should be considered on its own perculiar circumstances. Thus, in the case at hand the applicant has given reason for the delay to file application to issue notice to the respondent to show cause why alleged payment in the satisfaction of the decree should not be registered, to be illness and resultant death of the applicant's Mufti as head of the institution. The respondent has opposed this reasoning to the effect that if the alleged payment was done on 30/4/2016 and the said death occurred in June, 2016 then there were two months within which to file the said application. On this the applicant rejoined that the Mufti fell sick soon after the alleged payment. This court is of the considered view that since the applicant said Mufti fell sick in May, 2016 and died in June, 2016 hence there was no time within which any necessary steps to file documents in court would have been taken. Further, the time taken from the death of the Mufti to the time this present application was filed has been accounted for by the applicant that the death of Mufti disoriented the Institution which had to start process to get another Mufti who after his installation he had to get abreast with all matters before this application was filed. It is this court's considered view that the foregoing reasoning is perculiar account brought in this case and finds it to be genuine reason in support of the application. However, the respondent's counsel charged that since there are trustees of the Institution same would have taken care of this matter apart from the Mufti. The court further agrees with the applicant's counsel that since Mufti is head of the Institution final say in sensitive matters like this one should come from him. Hence, it cannot be said that the applicant did not take prompt action in respect of this matter. Also, it was Mr. Nkhangaa's argument that there was execution proceedings in respect of the said decree before this court between 19/2/2015 and 13/1/2016 hence if there was any agreement between the parties the applicant would have fronted it. This court has gone through 7 the orders annexed to the counter - affidavit and found that the drawn order by Sehel, J related to application for stay of execution of decree filed by the applicant which was found to be time barred and this was dated 15/1/2015 hence was far before the alleged agreement. Also, there is an order by the Chaba, DR in relation to execution of decree which was granted on 13/1/2016. This one was first made ex parte against the applicant herein and was before the date of the alleged agreement. Hence, in that case the applicant could not have fronted the alleged agreement as it came far later. Additionally, Mr. Nkhangaa learned counsel argued that this application is not entertainable as per section 14 (1) of the Law of Limitation Act (supra). This provision of law says; Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the Institution of appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation for such appeal or application [emphasis supplied]. The wording in the cited provision is clear that what is ousted is application for extension of time for execution of decree. Whereas the present application by the applicant as judgment debtor is for filing of application for the court to issue notice to the respondent (the decree holder) to show cause why the alleged payment should not be recorded as certified by the court. And as rightly argued by Mr. Machibya learned counsel an application for execution of decree can only be filed by the decree holder who is not the applicant in this case but the respondent. And lastly, the issue was to what is the form of the said decree will be determined if the time arrives, if the application sought after is filed. Consequently, this court finds that the applicant has shown sufficient reasons for the delay and this application has merit and it is hereby granted. The applicant is given twenty one (21) days within which to file application in terms of Order XXI Rule 2 (2) of the Civil Procedure Code (supra). No order for costs. It is ordered accordingly. M-A-iWARIKO JUDGE 20/3/2017 15/12/2016 Coram : Hon. M.J. Chaba, DR Applicant - Present and Mr. Machibya Advocate Respondent - Mohamed Thabit c/c: Judith Mr. Machibva. Advocate for the applicant Your honour, the matter at hand comes for a ruling. I am prepared for it. That's all. Mr. Mohamed Thabit/Respondent I am also prepared. That's all. Court: Ruling delivered in court today on the 21st day of March, 2017 in the presence of Mr. Machibya, learned Counsel for the applicant and Mr. Mohamed Thabit for the respondent. DEPUTY REGISTRAR 21/3/2017 Right of appeal to the Court of Appeal fully explained, DEPUTY REGISTRAR 21/3/2017