yona msomi

♦4. IN THE HIGH COURT OF TANZANIA MOROGORO SUB- REGISTRY AT MOROGORO MISC. LABOUR APPLICATION NO. 25872 OF 2024 (arisingfrom thelabour execution no.15 OF2023) THE REGISTERED TRUSTEES OF THE SEVENTH DAY ADVENTIST CHURCH APPLICANT BOARD OF UFUNUO PUBLISHING HOUSE 2**° APPLICANT VERSUS YONA MSOMI 1ST RESPONDENT JOHN CHAGONJA 2"° RESPONDENT RULING 22"'' November, 2024 MANSOOR,J The applicants herein, namely, THE REGISTERED TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH, and BOARD OF UFUNUO PUBLISHING HOUSE, herein shall be referred to as "the applicants" have applied for extension of time within which they may bring an application for issuance of notice to show cause why the decree in Labour Revision No 19 of 2021 should not be recorded as wholly Page 1 of 17 settled. The application was preferred under section 14(1) and (2) of the Law of Limitation Act, [Cap 89 R:E 2019], section 38 and Order XXI rule 2(2)of the Civil Procedure Code ,[Cap 33 R:E 2019](herein referred as the "Civil Procedure Code"). Briefly, the background of the matter is as stated in the affidavit of the applicants sworn in by Pius Mataba the Principal Officer of the Applicants. That the applicants were the respondents in Labour Revision No. 19 of 2021 which was presided over by Hon Judge Chaba. The original case was filed on 15"^ September 2021 before the Commission for Mediation and Arbitration "CMA"as Labour Dispute No CMA/MOR/758i76. Before the CMA,the applicants were ordered to pay Yona Msomi THz 86,120,073.46, and THz 80,724,576.92 to John Chagonja, making the total of THz 166,844,650.30. Aggrieved by the decision and the Award passed by the CMA, the applicants herein filed Revision No. 19 of 2021, the applicants lost the Revision, and since the orders passed by the Judge were not clear, the respondents herein filed an application for Review of the decision of Page 2 of17 •^s the High Court, and on 2"=" June 2023, Honourable Judge Chaba reviewed his decision and gave a clearer order and had awarded THz 122,203,903.46 to Yona Msomi and THz 110,164,776.29 to John Chagonja, and so the applicants herein were ordered to pay the respondents a total sum of THz 232,368,680.38. Following the orders of payments of a total sum of THz 232,368,680.38. to the respondents by the applicants passed by the High Court, on 3'''' October 2023, parties herein recorded a Deed of Settlement which was recorded by Hon Judge Chaba J, in which the parties had agreed to settle the dispute amicably, and that the applicants had agreed to pay the respondents a sum of THz 129,250,000 as final settlement of the Award. It was also agreed that the sum of THz 129,250,000 shall be paid in two instalments, and the first instalment was to be paid on or before I®' September 2023, and the second instalment was to be paid on or before 30''^ November 2023. The Settlement Deed comprised as the final settlement of the disputes as well as the Decree. The applicants also agreed to reinstate the respondents from 1^ December 2023. Page 3 of17 According to the applicants, the money agreed in the settlement deed was fully paid but the Deputy Registrar of the Court refused to record that the Decree was fully satisfied unless they sign a fresh settlement deed. Then the respondents herein started to demand payment of the whole sum of THz 232,368,680.38., as Issued by Hon Judge Chaba In Labour Revision No. 19 of 2021, Ignoring completely the settlement deed as well as the Compromise Decree Issued by the Court. Then, the respondents herein filed an application for execution No. 15 of 2023, which was presided over by Hon A.W Mbando praying for attachment and sale of a property known as Plot No. 623 located at Sabasaba Street In Morogoro Municipality for satisfaction of the Award of THz 232,368,680.38. Hon A. W Mbando gave the parties one month to settle their disputes amicably, and If they fall to settle, she ordered for attachment of Plot No. 632 located at Sabasaba Area within Morogoro Municipality for satisfaction of an amount of THz 232,368,680.38. She went ahead and appointed Mr Letle Longldo (Court Broker) from Longldo Auction Mart and Court Brokers to carry Page 4 of17 on the execution processes. This Ruling by the Deputy Registrar was delivered on 25"^ March 2024. The applicants herein were aggrieved by the decision of the Deputy Registrar refusing to recognise the Settlement Deed recorded by the parties before Honourable Judge Chaba, and they also intended to challenge the decision of Deputy Registrar ordering the parties to record the Deed of Settlement afresh before her, as well as her decisions of ordering the attachment and sale of the Applicants' property while the Decree was compromised and already settled. The applicants therefore had issued a Notice of Intention to Appeal to the Court of Appeal against the decision of the Deputy Registrar issued on 25'^^ March 2024 in Execution No. 15 of 2023. The Notice was lodged in Court on 24"^ April 2024. The applicants realised that instead of appealing to the Court of Appeal, actually they have an avenue under section 38 of the Civil Procedure Code under which they can move the executing court to determine any matter concerning the satisfaction or settlement of the Page 5 of17 Decree, and they intend to apply to the executing court to issue notice to the judgement creditor to show cause as to why the decree should not be marked as fully satisfied. They also realised that such an application should be filed in court within 90 days from the date of the order of the Deputy Registrar ordering the execution of the decree. The applicants reckon that 90 days have already expired, and they have moved the court to allow them the extension as there is an irregularity in the impugned orders issued by the Deputy Registrar. To buttress his stand. Counsel Ayaii who is representing the applicants has cited the case of Hassan Twaib Ngonyani vsTazama Pipeline Limited, Civil Appeal No 201 of 2018, page 18, where the Court of Appeal said that under section 38 of the Civil Procedure Act, the resolution as to any question on execution, the executing court Is entitled under section 38 of the Civil Procedure Code even to convert execution proceedings into a suit, and that under item 15 part III of the Schedule to the Law of Limitation Act, Cap 89, the application under section 38 and Order XXI Rule 2 of the Civil Procedure Code was required to be filed within 90 days. That under Order XXI Rule 2, the Page 6 of 17 executing court can be moved within 90 days of the decision of execution of a decree to issue notice to the decree holder to show cause why any payment made out of court or any money payable under a decree or any adjustment of the decree should not be recorded as satisfied. The time is reckoned from the date when the Registrar had issued her ruling directing the parties herein to discuss on the settlement deed out of court. The Ruling of the Deputy Registrar was issued on 25"^ March 2024. Order XXI sub rule 2 of rule 2, states that the judgement debtor may inform the court of such payments or adjustments and apply to the court to issue a notice to the decree holder to show cause on a day to be fixed by the court why such payments should not be recorded as satisfied. After service of such notice, the decree holder fails to show cause,the court shall record the same accordingly. Under sub rule 1 of Order XXI, where any money is paid out of court, or the decree is otherwise adjusted, to the satisfaction of the decree holder, the decree holder shall certify such payments or adjustments to the court whose duty is to execute the decree and the court shall record the same accordingly. Page 7 of17 Given the fact that the 90 days has passed from when the judgement debtor realised that the judgement creditor had no intention of notifying the court of the settlement of the decree, which is on 25"^ March 2024, this is why the applicants now wishes to apply for extension of time so that the applicants may be allowed to bring the application for issuance of notice to the decree holders to show cause as to why the decree should not be marked as fully satisfied. The applicant's counsel states that they have filed this application on 16"^ October, 2024 and in between those dates, the applicants believed that the proper avenue was to appeal, and they have already applied for documents for purposes of preparing the records of appeal. After realising that they have mistakenly filed a notice of appeal, the applicants intend to withdraw the notice of appeal because the only court with jurisdiction for determinations of issues of satisfaction of the decree is the executing court. The applicants refer to the case of Michael Lsani Kweke vs John Eliafye 1997 TLR at page 152 in which it was held that extension of time may be granted upon such plea of Inadvertence, in a certain case for example, where the party forwarding such a plea is shown to have acted reasonably, diligently. Page 8 of 17 to discover the omission and upon such discovery, he acted promptly to seek remedy for it. In the instant application, they argue, the applicants realised that it was wrong to prefer an appeal, and since the time has lapsed, they applied for extension of time. The applicants argue that there is an irregularity in the decision of the Deputy Registrar who is actually questioning the validity of the Compromise Decree entered before the Court. The applicants' counsel refers to the case of the Principal Secretary Ministry of Defence and National Service vs Bevram Valambhia TLR 1992 at page 397, where it was held that, the point of law in the iiiegality or otherwise of the decision challenged, that is sufficient Important to constitute sufficient reason for extending time. To hold otherwise amounts to permitting the decision which in law might not exists to stand. In my view, when the point at issue is one involving illegality of the decision being challenged, the court has a duty, even If It means extending the time, for purposes of ascertaining the point, and if the alleged illegality is established, to take appropriate measures and put Page 9 of17 the records right. The similar approach was taken by the Court of Appeal in the case of Rose Irene Mbwete vs Phoebe Martin Kyomo Civic Appiication No 70/71 of 2019, at page 19, 2nd para, the Justice granted the application for there existed illegalities, even when the applicant failed to account for the delay. The Counsels for the applicants argues further that the counter affidavit filed by the respondents contains evasive denial, which when it comes to affidavits, the same are regarded as admissions. On this point, the Counsels for the applicants refers to the case of East African Cables T Limited vs Spencon Services Limited, Misc. Commercial Appiication No. 61 od 2016 at page 7. The counsels for the applicants thus states that the applicants have demonstrated reasonable and sufficient grounds to warrant the exercise of discretion of granting the extension sought. The respondents who were represented by Abdul Bwanga Adv. made a very short and brief reply and said that the applicants have failed to account for all the 84 days of delay and have not been able to Page 10 of17 demonstrate sufficient reasons for granting the extension sought. He argues that the criteria to be considered for extension of time is whether the appiicant have been able to account for all the days of delay. He argues further that the applicants had preferred an appeal but they have not stated as to how long it took them to file the appeal. The counsel for the respondents said that the applicants have not shown diligence but they have demonstrated negligence or sloppiness. The appiicant admitted that they were negligent by filing cases in the wrong avenue and that negligence is not a reasonable ground for extending time. The Counsel refers to case of AG vs Mkombo Building and Civil Works and another, Civil Application No 266/16 of 2019, where the Court of Appeal formulated the guidelines to be considered in an application for extension of time. One being that the appiicant must account for all the period of delay, two, the delay should not be inordinate, three, the appiicant must show diligence and not apathy, negligence or sloppiness. Page 11 of 17 The counsel argues that the applicants did not account for all the 84 days of delay and he urges the court not to grant the extension as there Is no reasonable cause shown. I have considered the counsels rival submissions as well as the affidavits filed for and against the application. This application was preferred under section 14 (1) of the Law of Limitations Act, which reads as here under; "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 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 prescribed for such appeal or application" Section 14(1) herein above, it Is lucidly clear that the court can enlarge time for the Institution of either an appeal or an application. Obviously, the learned counsels here are not at issue as to the fact that the present one being an application is not seeking for institution of an appeal but rather an application. Henceforth, logic and legal reasoning Page 12 of 17 dictates and the canons of statutory interpretations affirms that section 14(1) herein above, can be empioyed to move this court to extend time within which an appiication under either section 38 or Order XXI Ruie 2 of the Civii Procedure Code couid be preferred. The provisions contained in Section 14 of the Law of Limitation Act, shail appiy oniy in so far as, and to the extent to which, they are not expressiy exciuded by such wording. This section is soieiy used for appiications to extend time for fiiing an appeai or appiication. This court is therefore properiy moved. The second question is whether the reasons for extension are justified. The specific reasons why an extension of time is justified are contained in the affidavit of the appiicants. That the appiicants preferred an appeai and had aiready lodged an appeai and they have requested for records so that they can file the appeai, and that for the 84 days of delays they were making follow up of the records from the Court. In the case of Kalunga and company Advocates vs. National Bank of Commerce (2006) TLR which states basically that matters of extension of time are matters of discretionary powers of the court, and ''where there is inaction or deiay on the part of the appiicant, there Page 13 of17 •* .» ought to be some kind ofexplanation or material to enable the Court to exercise the discretion given by Rule8ofthe CourtofAppealRules." The Applicants have demonstrated that they have been taking active steps from the date the office of the Deputy Registrar made a decision; The affidavit of the Applicant in support of the application contains sufficient cause. As stated in the case of the Registered Trustees of the Archdiocese of Dar es Salaam vs. the Chairman, Bunju Village Government and 11 others. Civil Appeal No. 147 of 2006, Msoffe J.A, CA, at page 9, said: "In giving liberalInterpretation to the words "sufficient cause"to this case It will be noted at once that the respondent had no good case on the merits of their Intended appeal to the High court. They could not have had good case when, as already stated, they did notapplyfor lea ve to appear and defend the suit In RM's Court In the first place. Ifthey had wished their starting point really ought to have been to file an application In the RM's Court for extension of time to file an application for leave to appear and defend. Their application for extension oftime to file Page 14 of17 a written statement of defence was misconceived, to say the least." The emphasis of what constitutes sufficient cause was stated in the case of Regional Manager, TANROADS Kagera vs. Ruaha Concre Company Limited, Civil Application no.96 of 2007, and the case of Ratma vs Cumarasamy and another(1964)3 Ail ER, 933 in which Lord Guest had this to say at page 935A- "The rules ofcourt must, prima fade be obeyed, and in order to justify a court extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the iaw were otherwise, a party in breach wouid have an unqualified right to an extension oftime which wouid defeat the purpose ofthe rules which is to provide a time tabie for the conduct oflitigation" Aithough matters of extension of time are matters ofjudicial discretion, such discretion should be exercised if sufficient reasons have been shown as stated in the case of Kaiunga and Company Advocate vs. National Bank of Commerce(2006)TLR 235. Page 15 of17 A prayer for extension of time made by the Appiicant shaii not be granted just as a matter of routine and merely for asking, more so when the period for doing the acts asked for in the chamber summons has long expired, and the Appiicant has failed to account for each day of delay. Extension of time may be allowed by way of an exception, for reasons to be assigned by the Appiicant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. I have seen material placed before the Court showing sufficient cause, and the applicants have been able to account for each day of delay. Again, indeed there is an illegality in the decision issued by the Deputy Registrar which was actually questioning the compromise decree recorded by the Court under Order XXIII of the Civil Procedure Code, and the issue whether the Deputy Registrars in the execution proceedings have powers to question the decision passed by the High Court Judge, is a question which needs to be addressed when determining whether the decree has been satisfied or not. As stated in the case cited by the Counsels for the applicants, the case of Rose Irene Mbwete vs Phoebe Martin Kyomo Civic Application No Page 16 of 17 70/71 of 2019,at page 19,2nd para,the court is justified to grant the application if there existed iiiegaiities in the impugned decision, even when the applicant fails to account for the delay. For the foregoing reasons and since there are good causes shown,the Applicants' prayer that this Court grant this application for an extension of time to file an application under section 38 as well as Order XXI Rule 2 of the Civil Procedure Code is granted. The applicants are granted 30 days from the date of the Ruling to file the application. Costs shall follow the cause. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 22'"' DAY OF OF o NOVEMBER 2024. c -y X lU -5^ LATIFA MANSOOR JUDGE 22/11/2024 Page 17 of 17