IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL APPLICATION NO. 220 OF 2023

(Originating from Civil Case No. 8 of 2004)

MOHAMED ENTERPRISES (T) LIMITED ……………….....……….… APPLICANT

VERSUS

THAHN HOA LTD CO……………………………………………….….1ST RESPONDENT

PHAM VAN TU………………………………………………….……… 2ND RESPONDENT

VOSA SHIPPING AGENTS…………………………….………………3RD RESPONDENT

LEE VAN HAI…………………………………………………………….4TH RESPONDENT

LEE SHIPPING AGENCIES Pte, LTD (LS. A) …………………….5TH RESPONDENT

SIMON LEE……………………………………………………………... 6TH RESPONDENT

SEGAR SHIPPING Sdn BERHAD……………………………………. 7TH RESPONDENT

HING SIE TIING……………………………………….………….….. 8TH RESPONDENT

CHIONG JONG TING………………………………………………… 9TH RESPONDENT

TING SIE TING…………………………………………………….…10TH RESPONDENT

WONG LING LING……………………………………....................11TH RESPONDENT

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THE GOVERNEMENT OF VIETINAM…………………………….12TH RESPONDENT

RULING

8th & 16th June, 2023

MWANGA, J.

The issue involved in this application is for extension of time to allow

the applicant to file application for execution out of time prescribed by law.

It was brought pursuant to Section 95 of the Civil Procedure Code, Cap. 33

R.E 32019 and Section 2(3) of the Judicature and Application of Laws Act,

Cap. 458 R.E 2019. The application is supported by sworn affidavit of

Advocate Elisa Abel Msuya which was also adopted to form part of the

proceedings.

It was the learned counsel averments at paragraphs 3.0 and 4.0 of

the affidavit that on 22nd July, 2005 this court had issued a judgement and

decree against the respondents jointly and severally for payments of USD

1, 754,000.00 on account of sale of the 600 metric tons of white long grain

rice and USD 24,000.00 for loss of four rice whitening machine. The court

also awarded interest at mercantile and court’s rate as well as costs of the

case.

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 To date, the court’s decree has not been executed as the

respondents did not have known attachable properties within the territorial

jurisdiction of the court. That was the averment pursuant to paragraph 12

of the affidavit. Tha applicant caused this application to be heard ex-parte

on the grounds that, if the respondents become aware of this pending

application, they shall cause to remove the said properties or conceal the

available properties for attachment and thereby cause further delay of the

execution process and render this application superfluous.

On account of the days of delay of the execution process, the counsel

averred at paragraph 5.0 of the affidavit that; One, between the period

after delivery of judgement and decree the applicant engaged the 12th

respondent embassy in Dar es salaam, Tanzania in an attempt to resolving

the matter amicably and without any court intervention. Two, pursuant to

paragraph 7.0 of the affidavit, the applicant decided to apply for extension

of time to the Minister responsible for Constitution and Legal Affairs, only

to be notified on 22nd January, 2022 that the extension of time applied for

is beyond the ministry’s legal mandate. According to paragraph 9.0 of the

affidavit, the applicant became aware of the minister’s response on 15th

May, 2023.

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 During the hearing, the counsel Mr. Msuya summarised the grounds

adduced by the applicant in support of the prayer for extension of time by

stating that, conduct of the parties in exercise of due diligence in the follow

up of the maters right from the date of judgement was delivered to the

time the application was filed is a sufficient ground valid for extension of

time. The learned counsel invited the attention of this court to the decision

of the Court of Appeal of Tanzania in the case of African Banking

Corporation (T)Limited Versus George Williamson Limited, Civil

Application No. 349/01 of 2018 where the court held that, exercise of due

diligence is among the factors to be considered as good cause for

extension of time. The learned counsel also submitted that, apart from the

reasons advanced in respect of this application, the prayer be granted to

enable the applicant enjoy the fruits of the judgement and decree issued in

her favour.

I have gone through affidavit of the applicant sworn by Mr. Elisa

Msuya, which was also adopted to form part of the proceedings in this

application. I have also heard the learned counsel’s submission during the

hearing. What can be gathered from this matter is that the exparte

decision intended to be executed was delivered by this court on 22nd July,

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2005. On 2006 the 12th respondent appealed to the Court of Appeal of

Tanzania against the decision but the same was dismissed on 27th day of

March, 2006. There is no other evidence submitted in this application

showing that the respondents had again challenged the decision of the

court. So, the steps to be taken were for the respondents to comply with

the decree of the court, but that was not done to date. The applicant has

stated reasons for delay of the execution of the Judgement and decree of

the court that; one, the respondent’s had no attachable properties within

the jurisdiction of this court, therefore, there was nothing to be attached.

Two, despite all that, the applicant had exercised diligence on the matter.

Such diligence was constituted by the applicant on the following areas: -

(a) by writing a letter dated 30th May, 2006 to the Ministry of Foreign

Affairs and International Cooperation seeking intervention on the

matter.

(b) in the period of September, 2015, the applicant had contacted

the 12th respondent through her embassy seeking settlement of the

decree of the court amicably. That was also done on March, 2016

when the applicant wrote to the 12th respondent through her

embassy seeking arrangement of the meeting between the applicant

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 and President of Socialist Republic of Vietnam who had official visit

here in Tanzania.

(c) On December, 2018 the applicant wrote to the Minister for Constitution

and Legal Affairs seeking extension of time after the lapse of 12 years for

the execution of the decree. But, on 22nd January, 2022 the ministry

responded that it has no legal mandate to extend time as it was not a suit.

The response came after the applicant had written several reminders

to the ministry seeking such extension of time. The reminders were

coupled with letters dated 29th April, 2021, 4th August 2021 and 29th

August, 2021. Even so, such response came to the attention of the

applicant on 15th May, 2023. It was through such response, the applicant

has decided to file this application on 19th June, 2023.

As it can be seen from the deposition and submission of the learned

counsel, the reasons for delay of the execution of the lawful decree of the

court have been given. Under the circumstances, the applicant did not

sleep over his rights. And the law helps the vigilant and not those who

sleep over their rights. In the case of Marry Mchome Mbwambo and

Another Versus Mbeya Cement Co. Ltd, Civil Application No. 271/01 of

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2016 and Royal Insurance Tanzania Ltd Versus Kiwengwe Stand

Hotel Ltd, Civil Application No. 111 of 2009(unreported), the court held

that if a party establishes that he did not sit back, but pursued his matter,

that fact may amount to good cause subsequently in an application for

extension of time.

Again, in the case of Heritage Insurance Company Ltd Versus

Sabians Mchau & Two Others, Civil Application No. 284/09 of

2019(Unreported), the court had clearly stated that even though extension

of time is discretionary powers of the court, the same has to be exercised

cautiously and by following the rules of reason and justice. The evidence

deposed in the affidavit is a clear case to show that apart from effort

shown by the applicant in pursuance of the matter, there has been an

exercise of some diligence on it. That was also the position held in the

cited case of African Banking Corporation (T)Limited Versus George

Williamson Limited(supra).

In view of the above stated position, I hasten to state that each case

should be decided basing on its own facts. This is such a peculiar case that

warrant granting of the prayer for extension of time. In that respect, in

consideration of powers of this court under Section 95 of the CPC, I grant

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extension of time to allow the applicant to file an application for execution

out of time for the ends of justice, that is to enable the applicant to pursue

her legitimate rights that was conclusively determined in the judgement

and decree of this court in Civil Case No. 8 of 2005. The application shall

be filed within 14 days from the date of this decision.

Order accordingly.

H. R. MWANGA

JUDGE

16/06/2023

COURT: Ruling delivered in the presence of Advocate Irene Mchau

assisted by Advocate Ndehorio Ndesamburo for the applicant and absence

of the respondent.

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H. R. MWANGA

JUDGE

16/06/2023