bank of baroda tanzania ltd vs pulses and agro commodities 2019 tzca 643 13 december 2019

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 128/02 OF 2018 BANK OF BARODA (TANZANIA) LIMITED MR. CHARLES RWECHUNGURA - RECEIVER/MANAGER APPLICANTS VERSUS PULSES AND AGRO COMMODITIES (TANZANIA) LIMITED ... RESPONDENT (Application for extension of time to file appeal out of time against the Judgment of the High Court of Tanzania at Arusha) (M osh LJJ Dated the 23rd day of April, 2015 in (Civil Case No. 24 of 20141 RULING 10th & 13th December, 2019 MKUYE, J.A.: By notice of motion, the Bank of Baroda (T) Ltd and Mr. Charles Rwechungura - Receiver/Manager, the applicants, are seeking the indulgence of this Court to extend time within which to appeal from the judgment of the High Court of Tanzania at Arusha (Moshi, J.) in Civil Case No. 24 of 2014 dated 23/4/2015 on the grounds which can conveniently be paraphrased as follows: 1. That, after their C ivil Appeal No. 32 o f 2016 which was file d within tim e on 2/2/2016 was on 18/10/2016 i struck out for the reasons o f incom plete record, they had to start a fresh by filing an application for extension o f tim e to file a notice o f appeal which was granted by Maghimbi, J. in Misc. C ivil Application No. 73 o f 2017 and they filed it on 5/10/2017. 2. That, the period for the applicants to appeal had lapsed while they are s till desiring to challenge the said decision on legal and factual grounds; and that they have always been pursuing the m atter prom ptly and diligently; and that it is in the interest o f justice and fairness that this application be granted for the applicants to lodge the appeal again so that the decision o f the High Court in C ivil Case No. 24 o f 2014 can be re-exam ined on its merits. The notice of motion has been taken under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and is supported by an affidavit sworn by Mr. Gabinus Polepole, the Principal Officer of the 1st applicant. The application is resisted by the affidavit in reply affirmed by Omar Iddi Omar, the learned counsel for the respondent. The applicants as well as the respondents had also, earlier on, filed their respective written submission in support and against the application as per Rule 106 (1) and (8) of the Rules respectively. The brief background of this matter is as follows: The respondent herein had, in the High Court of Tanzania at Arusha, sued the applicants herein challenging the appointment of the 2nd applicant as a Receiver Manager to manage the recovery of the credit facility which the respondent had earlier on applied and obtained from the 1st applicant and defaulted to repay it. On 23/4/2015, the High Court delivered a judgment in which it declared the appointment of the 2nd applicant as Receiver Manager to be premature and illegal; granted injunction not to enforce the security; and awarded the respondent general damages to the tune of Tshs.10,000,000/=. Dissatisfied by that decision, on 7/5/2015 the applicants filed a notice of appeal to this Court and requested for copies of proceedings, judgment and decree for appeal purposes which documents were supplied to them on 6/1/2016. They lodged the appeal on 2/2/206 which was registered as Civil Appeal No. 32 of 2016 but was on 18/10/2016 struck out for reason of incomplete record of appeal. Following the striking out of the appeal, the applicants on 21/11/2016 filed Misc. Civil Application No. 229 of 2016 for extension of time to file a fresh notice of appeal which was unfortunately on 4/7/2017 withdrawn with a leave to refile because of some defects. On 10/7/2017 the applicants filed Misc. Civil Application No. 73 of 2017 seeking for extension of time to file notice of appeal which was granted on 4/10/2017 and on 5/10/2017 they filed the notice of appeal as ordered and served the respondent on the same date. Then the applicants filed this application on 3/11/2017. At the hearing of the application, the applicants were represented by Mr. Rugambwa Pesha, learned advocate whereas; the respondent had the services of Mr. Omar Iddi Omar assisted by Mr. Innocent Mwanga both learned advocates. Submitting in support of the application, Mr. Pesha in the first place sought and leave was granted to adopt the affidavit and written submissions in its support and the list of authorities he had filed earlier on. Elaborating/ Expounding the averments in the affidavit and the written submission, Mr. Pesha contended that, though their previous appeal was struck out, the applicants had acted promptly in filing the application for extension of time to file a notice of appeal; applying for withdrawal of the application which had some defects before the hearing date; filing another application for extension of time to file a notice of appeal and filling it on 5/10/2017 after extension of time to do so was granted on 4/10/2017; and filing this application on 3/11/2017. In this regard, they are of the view that, the applicants' act of persistently and diligently seeking the remedy of this matter constitutes sufficient reasons for this Court to extend the time sought. The applicants added that even if it is assumed that there was a delay, such delay was a technical one since their initially appeal was filed within time but was struck out due to incomplete record of appeal. They referred me to the case of Fortunatus Masha v. William Shija and Another [1997] TLR 154. The applicants have also referred me to the case of Standard Chartered Bank (Tanzania) Ltd v. Bata Shoe Company (T) Limited, Civil Application No. 101 of 2006 pg 5 to show that they acted with reasonableness, promptness and diligence and urged me to so find. Apart from that, Mr Pesha also raised another ground that the intended appeal has overwhelming chances of success as shown in the proposed five (5) points memorandum of appeal attached to the affidavit as Annexure CRB 8. At the end Mr Pesha urged me to find that the applicants have shown good cause and grant the application. In response, Mr. Omar also sought and leave was granted to adopt the affidavit and the written submission in reply together with the list of authorities. In his very brief and focused submission in Court, Mr. Omar contended that in terms of Rule 10 of the Rules the applicants are required to show good cause for delay or sufficient reasons as to why extension of time should be granted. He pointed out that, though the applicants contended that immediately after the striking out of the appeal, they filed Misc. Civil Application No. 229 of 2016 for extension of time to file a notice of appeal, the truth is that they filed an application for extension of time to file an appeal from the decision of the High Court which was filed after 35 days had lapsed and no account for such delay has been given by the applicants. The respondent has argued further that assuming the said Misc. Civil Application No. 229 of 2016 was for extension of time to file a notice of appeal, it took more than 8 months to detect that the notice of motion was defective which culminated into making an application for leave to withdraw it. While relying on the case of Tanzania Railways Corporation v. Mr. Augusta Upendo Rweyemamu, Civil Application No. 157 of 2004 (unreported), he urged me to find that lack of diligence or mistake of an advocate does not constitute good reason for extending the time. 6 In addition the respondent argued that, the applicants have not explained anything on the time taken from when the notice of appeal was filed on 5/10/2017 to the time this application was filed on 3/11/2017. He also countered the issue raised by the applicants that the delay was technical in that it cannot apply to the open defect or negligence by the advocate for the applicants adding that even the cited case of William Shija (supra) is distinguishable, because, in that case the applicant acted promptly unlike in the instant case where the applicants filed a defective application which came to be discovered after eight (8) months; and filed this application one month after filing the notice of appeal. As regards the applicants' argument that the intended appeal has overwhelming chances of success, the learned counsel for the respondent refrained from making any comment at this stage. I have keenly considered the notice of motion in the light of the rival arguments from both sides. My starting point would be restating that the application of this nature is governed by Rule 10 of the Rules which states as under: " "The Court may, upon g o o d cause show n, extend the tim e lim ited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that tim e and whether before or after the doing o f the act; and any reference in these Rules to any such tim e sh all be construed as a reference to that tim e so extended. "[Emphasis supplied] The above cited provision empowers the Court in its discretion to extend time if good cause is shown. It is, however, noteworthy that there is no clear definition of good cause. There are numerous decisions of this Court which give discretion as to what constitutes good/sufficient cause. For instance, in the case of Benedict Mumello v. Bank of Tanzania, Civil Application No. 12 of 2002 (unreported) the Court speaking through Kaji, JA stated as follows: "it is a trite law that an application for extension o f tim e is e n tire ly in th e d iscre tio n o f th e C o u rt to grant or refuse it, and that extension o f time may only be granted where it has been sufficiently established that the delay was with sufficient cause. " (See also Rutagatina CL v. The Advocates Committee and Clavery Mtindo Ngalapa, Civil Application No. 98 of 2010 (unreported), whereby this Court in categorical terms stated that an application under Rule 10 of the Rules can be granted if good cause is shown. But again, in expounding more on what entails sufficient cause, in the same decision of Benedict Mumello (supra) the Court quoted with approval the case of Tanzania Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (unreported) and stated as follows: "What amounts to sufficient cause has not been defined. From decided cases a number o f factors has to be taken in to account, including whether or not the application has been brought prom ptly; the absence o f any or valid explanation for the delay, lack o f diligence on the part o f the applicant." The issue to be resolved here is whether the applicants have shown good cause for the delay. In this case, it is without question that the decision of the High Court intended to be appealed against was handed down on 23/4/2015 after 9 which the applicants filed Civil Appeal No. 32 of 2016 within time but for reason of incompleteness of the record was struck out on 18/10/2016. Thereafter the applicants filed an application for extension of time to file notice of appeal, which the respondent argued that, it was actually an application to file an appeal of which after having discovered that it was defective they applied and leave to withdraw it and was marked withdrawn on 4/7/2017. The applicants also filed another Misc. Civil Application No. 73 of 2017 seeking extension of time to file a notice of appeal which was granted on 4/10/2017 and after filing the notice of appeal on 5/10/2017, it was followed by the application at hand which was filed on 3/11/2017. The applicants are of the firm view that good cause have been shown as they acted promptly and, in any case, the delay was technical delay. On her part the respondent is of a view that the applicants had acted without diligence and that they have not accounted for the delay and even the so called technical delay is not applicable to them. I am aware that the issue of technical delay was discussed in the case of Fortunatus Masha (supra) and the Court had this to say: " With regard to the second point\ I am satisfied that a distinction should be made between cases 10 involving re a l o r a c tu a l d e la y s and th ose lik e th e p re se n t one w hich o n ly in v o lv e w h at can be c a lle d te ch n ic a l d e la y s in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal fo r one reason or another has been found to be incom petent and a fresh appeal has to be instituted. In the circum stances, the negligence, if any, really refers to the filin g o f an incom petent appeal not the delay in filin g it. The filin g o f an incom petent appeal having been duly penalised by striking it out, the same cannot be used yet again to determ ine the timeousness o f applying for filin g the fresh appeal. In fa c t in th e p re se n t case, th e a p p lic a n t a cte d im m e d ia te ly a fte r th e p ro n o u n cem en t o f th e ru lin g o f th is C o u rt s trik in g o u t th e fir s t a p p e a l." [Emphasis added] [See also Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 (unreported)]. I have highlighted part of the above excerpt to show that in order for the said technical delay to apply, diligence and promptness are of much importance. I do not agree that the technical delay as propounded 11 in Fortunatus Masha's case (supra) in applicable to this case. As was rightly argued by the respondent, that case is distinguishable to this case since in that case, the applicant was acting with promptness unlike in this case where there are unexplainable delays between one step and another. I will explain. One, it took almost 33 day for the applicants to file an application for extension of time to file notice of appeal from when the initial appeal was struck out on technicality and no reason(s) has/ have been given for such delay. Two, the applicants spent almost 8 months to discover a defect in the application for extension of time to file the notice of appeal was filed on 21/11/2016 to 4/11/2017 when the said application was withdrawn. I must also state here that the contention by the respondent that the applicants applied for extension of time to file appeal instead of filing a notice of appeal which necessitated to its withdrawal on 4/7/2017_cannot be relied upon as the same was just brought through written submission which is not part of evidence. It was expected that the respondent could have brought it through an affidavit while being attached with such application. As it is, in the absence of averment in the affidavit and a copy 12 of the said application attached to the affidavit, leaves the allegation unsubstantiated and to say the least, with no evidential value. Three, it took a period of about 23 days from when the notice of appeal was filed on 5/10/2017 after extension of time was granted on 4/10/2017 to 3/11/ 2017 when this application was filed. All these periods were not accounted for. Unfortunately, Mr Pesha did advance any reason(s) for the delay except that he was persistent that the applicants had acted promptly and diligently although the facts of the case do not bear out the applicants. Nevertheless, the law is well established that in applications for extension of time the applicant is required to account for each day of delay. In the case of Bushfire Hassan v. Latina Lucia Masaya, Civil Application No. 3 of 2007 (unreported), the Court emphasized that: "Delay, o f even a single day, has to be accounted fo r otherwise th e re w ou ld be no p o in t o f h a v in g ru le s p re scrib in g p e rio d s w ith in w h ich ce rta in ste p s have to be taken ." [Emphases added] [See also Hassan Bushiri v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007; Lyamuya Construction Company Ltd v. 13 Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010; and Bariki Israel v. Republic, Criminal Application No. 4 of 2011 (all unreported)]. Thus, it is clear that the applicants have failed to account for the delay of the periods I have endeavoured to explain herein above. The applicant also urged the Court to consider that the intended appeal has overwhelming chances of success while on the other hand the respondent resisted to submit on it at this stage. On my part I wish to express at once that it has been a long established practice of this Court to disregard any ground relating to overwhelming chances of success of an intended appeal. In the case of Tanzania Posts & Telecommunications Corporation v. M/s H. S. Henritta Supplies (1997) TLR 141 at page 144, where the issue of the intended appeal having overwhelming chances of success arose, Lubuva, J.A. (as he then was) stated as follows: " It is however relevant at this juncture, to reflect that this Court has on numerous occasions taken the view that the chances o f success o f an intended appeal though a relevant factor in certain situations, it can only m eaningfully be assessed later on appeal after hearing arguments from both sides." 14 On my part, I subscribe to the above position of the law and I think the respondent rightly abstained from making any comment on it. This is so because the issue of whether or not the intended appeal has great chances of success cannot be assessed at this stage where there is no material before me to enable me to ascertain the chances of the intended appeal succeeding if such appeal was to be filed and heard by this Court. Hence, I do not see any reason for me to speculate on whether or not there are chances of success in the intended appeal by the applicant. This ground, therefore, does not constitute good cause in the circumstances. That said and done, I am satisfied that the applicants have failed established good cause warranting this Court to extend the time sought. Therefore, the application is hereby accordingly dismissed with costs. DATED at DAR ES SALAAM this 12th day of December, 2019. R. K. MKUYE JUSTICE OF APPEAL The Ruling delivered this 13th day of December, 2019 in the presence of Mr. Said Said/Pesha, learned Counsel for the Applicants and Mr. Innocent Mwanga, learned counsel for of the Respondent is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 15