ANDREW WISTON KALELA NDIMBO VS SULEMAN MOHAMED KHAMIS MISC

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC.COMMERCIAL CAUSE N0.70 OF 2013 1. ANDREW WISTON KALE LA NDIMBO....................1st APPLICANT 2. CHRISTINA ANDREW NDIMBO.......................... 2nd APPLICANT VERSUS 1. SULEMAN MOHAMED KHAMIS......................... 1st RESPONDENT 2. ANTHONY KONDE SAKI................................... 2nd RESPONDENT 3. ERIC AUCTION COURT BROKER.......................3rd RESPONDENT Date o f hearing: 19/09/2013 Date o f the la st order: 19/09/2013 Date o f ruling: 01/11/2013 RULING MAKARAMBA, J.: This is a ruling on application for extension of time ANDREW WISTON KALELA NDIMBO and CHRISTINA ANDREW NDIMBO, the Applicants herein, lodged in this Court on the 2nd August, 2013, for filing an application to set aside sale in respect of the Applicants' Plot No.241 Block "G" Tabata Dar es Salaam. The application was preferred under section 14(1) of the L a w o f Lim itation A ct, [Cap.89 R.E 2002] and is supported by the joint affidavit of ANDREW WISTON KALELA NDIMBO and CHRISTINA ANDREW NDIMBO. Page 1 of 8 In arguing the application, Mr. Nassoro, Advocate appeared for the Applicants and Mr. Masaka, Advocate appeared for the Respondent and they made oral arguments. The background to this application briefly as could be gathered from the sworn affidavit of the Applicants and which were amplified by Mr. Nassoro, learned Counsel for the Applicants is that, the Applicants were sued by the 1st Respondent for among other things, payment of TZS 60,000,000/=. The suit ended with a consent settlement and a decree entered by this Court. The 3rd Respondent filed application for execution of the Decree by selling Plot No. 241 Block "G" Tabata, Dar es Salaam. The Applicants claim that the said plot was fraudulently sold by a purported public auction to the 2nd Respondent. The Applicants allege in the affidavit the following particulars of fraud; that, no duly public auction was conducted for the sale of the said plot; that, no publication of the alleged public auction was made; that, the purported proclamation of sale did not state the true amount for the recovery of which the sale was ordered; that, the alleged public auction was conducted before the expiry of the 30 days prescribed period from the date of the purported proclamation of sale issued by the Court and that before the purported sale as there was no court order for attachment of the said plot. The Applicants contend further that upon noticing those fraudulent actions, they filed an application in this Court to set aside the said sale, which was struck out on technicalities on the 31st July, 2013. The Applicants however, are still aggrieved with the illegal sale of the plot and since time to challenge the said sale has expired Page 2 of 8 the Applicants are now seeking extension of time since they are bonafide prosecuting the former application. Responding to the submissions of Mr. Nassoro in support of the Application, Mr. Masaka learned Counsel for the Respondents argued that, fraud is not a ground warranting the Court to grant extension of time. The applicant was supposed to account each day delay from the day when execution was taken place, Mr. Masaka further submitted. Mr. Masaka submitted further that since the execution took place on the 30th October, 2011, that is the date in which the Applicants' property was sold by public auction and therefore the Application to set aside the sale ought to have been lodged in this Court within 30 days from the date of the sale. According to Mr. Masaka, there is no explanation in the Applicants' joint affidavit accounting for the delay. Mr. Masaka referred this Court to the case of AL-IMRAN INVESTMENT LTD VERSUS PRINTPARK TANZANIA LIMITED & ANOTHER, Misc. Civil Cause No.128 of 1997 (unreported) in which Nsekela, J., held that: "In order for the applicant to have benefit o f section 14(1) the Applicant ought to explain the delay o f every day that passes beyond the described period o f limitation. Sadly, as stated above there is no such explanation a t all let atone sufficient cause that has been given by the Applicant. There is no material before me on which I can base m y judicial discretion to extend the period o f limitation." Page 3 of 8 Amplifying on the above legal position, Mr. Masaka referred this Court to the case of DAUDI HAGA VERSUS JENITHA ABDON MACHAFU, Civil Reference No.l of 2000 (unreported) in which it was held that; "In order for extension o f time to be granted reasons accounting for the delay have to be advanced." Mr. Masaka submitted further that, the Applicants have failed to account for the delay and as such there is no ground advanced warranting this Court to grant the application for extension of time and prayed that the application be dismissed with costs. Mr. Nassoro in rejoinder argued that, the reasons for the delay have been clearly stated under paragraph 6 of the joint affidavit of the Applicants, that they were bonafide prosecuting the former application which was struck out by this Court on 31st July, 2013. The application to set aside the said sale was filed in this Court on the 17th November, 2011. Therefore the application was filed immediately after the Applicants noticing that, the sale was fraudulently conducted. Mr. Nassoro submitted further that aside from this fact, the explanation of the Applicants in paragraphs 4, 6 and 7 of their sworn affidavit in support of the application are sufficient. Mr. Nassoro took issue with the cited cases of Al-Imran Investment Ltd and Daudi Haga (above) that they are irrelevant. Mr. Nassoro added that, the previous application was struck out on 31st July, 2013, and this application was filed on the 2nd August, 2013, which is a delay of two days. Mr. Nassoro surmised by arguing that, it is well known that, where fraud is alleged in any proceedings, the Court is always bound Page 4 of 8 to grant extension of time, but did not cite any case authority for this disposition. The present application which is for extension of time has been brought under section 14(1) of the Law of Limitation Act Cap.89 R.E 2002. Section 14(1) which provides that: "(1) Notwithstanding the provisions o f this Act, the court may, for any reasonable or sufficient cause, extend the period o f limitation for the institution o f an appeal or an application, other than an application for the execution o f a decree, and an application for such extension m ay be made either before or after the expiry o f the period o f limitation prescribed for such appeal or application." (the emphasis is o f this Court). The Applicants have advanced the reasons for the delay in applying for extension of time in paragraph 6 of their joint sworn affidavit in support of the application. The Applicants state therein that, all the time they were bonafide prosecuting the application for setting aside sale, which application this Court struck out on the 31st July 2013. The issue is whether this reason constitutes reasonable or sufficient cause for this Court to grant extension of time. As per the court record, the "purported" sale of the suit property on Plot No.241 Block "G" Tabata Dar es Salaam was made by public auction on the 30th October, 2011. The Applicants lodged their application for setting aside the said sale in this Court on the 17th November, 2011. This Court pursuant to that application entered its ruling Page 5 of 8 on the 31st July, 2013 striking it out on the ground that the affidavit in support of that application was wrongly attested and therefore rendered an application incompetent. The pertinent question therefore becomes when does time begins to run for purpose of application for extension of time. In my considered view the limitation period started to run from the date in which the purported sale by public auction took place, which was on 30th October, 2011. Reckoning from that date, that is, 30th October, 2011, to 2 nd August, 2013 when this application was lodged in this Court, it will be delay of more than a year. However, the law does not provide for a time limit for application for extension of time to file application to set aside sale. This being the case therefore resort is to be had to Item 21 of Part III to the Schedule of the Law of Limitation Act, Cap.89 R.E 2002, which provides for 60 days for all applications for which no period of limitation is provided for under that law or in any other written law. Mr. Nassoro argued that, the limitation period starts to run from the date in which the former application was struck out. I am of the considered view and with due respect to Mr. Nassoro that, in the eyes of the law once an application has been struck out, there is nothing left and it is considered that that application never existed at all. As Mr. Masaka rightly submitted, time starts to run from the date in which the purported sale took place, the very date the purported fraud is alleged to have been committed. It is without doubt that the Applicants have delayed to lodge their application for setting aside the purported sale for more than a year. The pertinent question here is whether the reasons the Applicants advanced to Page 6 of 8 account for the delay are reasonable or sufficient for this Court to grant extension of time. The Applicants have advanced as their main reason for the delay, that they were bonafide prosecuting the application for setting aside sale, which this Court struck out on technicalities on the 31st July 2013. Indeed the Court record shows that since 30th October, 2011, the Applicants have been busy trying to set aside the purported sale and they allege the sale was tainted with fraud. Allegation of fraud is a serious one, which the Court should not take lightly. This being the case therefore, considering that the Applicants are alleging the existence of fraud in the purported sale of the suit property, this constitutes a sufficient ground for this Court to extend time for the Applicants to bring application for setting aside the sale of Plot No.241 Block "G" Tabata Dar es Salaam. This will provide an opportunity to Court to determine whether indeed there was fraud in the sale of the suit property as the Applicants allege. It is for the above reasons that the application for extension of time succeeds. The Applicants are hereby granted extension of time to bring application to set aside the sale of the suit property Plot No.241 Block "G" Tabata Dar es Salaam within fourteen days of this order. Costs shall follow the event. Order accordingly. R.V. MAKARAMBA JUDGE 01/11/2013 Page 7 of 8 Ruling delivered this 01st day of November 2013 in the presence of Mr. Andrew Weston Kalela Ndimbo, the 1st Applicant in person and in the absence of the Respondents. R.V. MAKARAMBA JUDGE 01/11/2013 Word count: 1784 Page 8 of 8