20160727 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL. APPLICATION NO. 48 OF 2016 THE SECRETARY GENERAL OF THE EVANGELICAL LUTHERAN CHURCH OF TANZANIA, EASTERN & COASTAL DIOCESE.................. APPLICANT VERSUS MR. LUHIGIKO MTEZI KIBIKI. ..... ........ . ................... RESPONDENT RULING MKASIMONGWA, J. LUHINGILO KIBIKI (Respondent) the DECREE HOLDER in Civil Case No. 142 of 2009 of this court has brought an application for execution of a decree against the JUDGMENT DEBTORS namely, THE SECRETARY GENERAL EVANGELICAL LUTHERAN CHURCH OF TANZANIA (Applicant) and DEBORA MSEMWA. When were served with the application the Respondents therein and applicant in this matter came up with this application in which he seeks the court to ascertain it because: 1. The said application for execution of the monetary decree does not comply with the judgment and decree issued by this court on 30 th September, 2015. 2. That the computation of the principal sum and interests awarded is erroneously made. The Application is made by way of Chamber Summons filed under Order XXI Rule 15(1), (2), (3) and 10(2) (g) and Section 95 of the Civil Procedure Code [Cap. 33 R.E 2002] and any other enabling provisions of law and it is supported by the affidavit sworn by ELISA ABEL MSUYA. 1 The Respondent filed a Counter Affidavit along with a Notice of Preliminary Objection. In the Notice he alleges that the applicant's application is improperly before the court. It was agreed that the Preliminary Objection be disposed of by way of written submissions. The court ordered the respondent to file his submissions by 4/5/2016 and the applicant by 20/5/2016. The parties filed their submissions. The Applicant, but, noted and brought to the attention of the court that the respondent's submissions were filed on 18/5/2016 which is out of the time prescribed by the court. Relying on the provisions of Section 93 of the Civil Procedure Code [Cap. 33 R.E 2002] and the decision of this court at Dar es Salaam in the case of GERALD JORDAN V /S E.R. MWAKASALA, CIVIL CASE NO 398 OF 2001, submitted since the Respondent chose to file his submission out of time without leave of the court the submission are improperly before the court. For that reason they should not considered. The respondent did not file rejoinder submission. As stated above the respondent was ordered to file his submission 1n support of his Preliminary Objection by 4/5/2016. He did not file the submissions as ordered. Instead he filed them on 18/5/201, that is, 14 days after the time prescribed by the court. He did so without seeking and obtaining from the court an order extending the period in which to file the submissions under Section 93 of the Civil Procedure Code [Cap. 33 R.E 2002] which reads as follows:- "Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired" As to the consequences for failure to comply with an order of the court in respect of the date of filing of the written submissions, this court held that the submissions cannot be considered by the court in making decision. This was held in the case of GERALD JORDAN (supra) where Mlay, J stated as follows:- 2 J "The first point which has to be considered and decided is whether this court should consider the written submissions by the applicant's advocate as well as those by the respondent's advocate both of which were filed outside the dates of filing them, as ordered by this court. As neither counsel had first applied for extension of time to file the written submission after the dates ordered by the court, the submissions are improperly before this court and cannot be considered" Order XXI Rule 15( 1) of the Civil Procedure Code under which this application is brought reads as follows: "On receiving an application for the execution of a decree as provided by rule 10, sub-rule (2), the court shall ascertain whether such of the requirements or rules 10 to 12 as may be applicable to the case have been complied with; and, if they have not been complied with, the court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. Order XXI Rule 9 of the Civil Procedure Code provides for application for execution. In terms of Order XXI Rule 10 of the Civil Procedure Code an application for execution may be oral or written. Order XXI Rule 10(2) Civil Procedure Code provides for written applications for execution. An application for execution of a decree under this sub-rule must be written signed and verified by the applicant. It must contain in tabular form what is stated under paragraphs (a)-(j) of the sub-rule. A written Application for execution must be submitted to the court. Order XXI Rule 15(1) of the Civil Procedure Code provides for the procedure on receiving the application for execution of the decree before the same is admitted. The court has to ascertain whether the requirements under Rule 10(2) or Rules 10-12 of the Order, as may be applicable, have been complied with. The court so ascertains for the purposes of admission of the application. The court here does not go into the merits of 3 the application for that leads into determination of the rights and duties of the parties which necessitate for hearing of the matter. In this application the applicant seems to dispute to the application for the execution of the decree for it does conform to the judgment and decree of the court and that the computation of the principal and interests awarded is erroneously made. This invites for the court to go into the merits of the application. As such the provisions of Order XXI Rule 15(1), (2) and (3) of the Civil Procedure Code do not apply. The Judgment Debtor will have an opportunity to contest on these at the time of hearing the application for execution. It is my considered opinion this application is misconceived and if anything, the same is prematurely made. From the foregoing, I find no merit in this matter. The same is dismissed with costs. Dated at Dar es Salaam this 27 th of July, 2016. cobP E.J.~dh~a JUDGE 27/7/2016 4