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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 6010 OF 2024 (Arising from Commercial Case No. 180 of 2017)

BETWEEN D.B.SHAPRIYA & CO. LIMITED............................1st APPLICANT MINESTONE LIMITED......................................... 2nd APPLICANT DYNAMIC MOTORS LIMITED............................... 3rd APPLICANT KISHOR DHANJI SHAPRIYA................................ 4th APPLICANT AMISHI SHAPRIYA.............................................. 5th APPLICANT AND BARCLAYS BANK TANZANIA LIMITED................... RESPONDENT

RULING Date of Last Hearing: 10/06/2024 Date of Ruling: 28/06/2024 MKEHA, J: The applicants' application seeks extension of time within which the applicants can file an application to review and set aside a Consent Decree dated 13th February 2019 in Commercial Case No. 180 of 2017. The decree emanates from a Deed of Settlement filed in Court on 29th January 2019. The application is made under section 14 (1) of the Law of Limitation Act. The same is supported by a joint affidavit and reply to counter affidavit affirmed by Messrs Kishor Dhanji Shapriya and Dipackumar Kotak, the 1 | Page 2 | Page Principal Officer of the 1st to 3rd applicants and the 4th applicant respectively. On the other hand, the application is contested through a counter affidavit sworn by Mr. Frank Philemon Milanzi. The deponent of the counter affidavit was the respondent's in-house counsel, at a time relevant to this application. The application was orally argued. Whereas Mr. Roman Masumbuko learned advocate represented the applicants, Mr. Mpaya Kamara learned advocate represented the respondent. Mr. Roman Masumbuko learned advocate commenced his submissions by adopting the contents of the affidavits supporting the application as part of his submissions in chief. The learned advocate proceeded to submit that; the consent decree sought to be challenged by way of review was a result of a deed of settlement

signed by the parties. According to the learned advocate, the deed of settlement had been signed in good faith by the applicants, basing on matters that had been pleaded in court. That, the respondent who was the plaintiff in the original suit had indicated that, the properties of the first applicant who was the first defendant, had a value of TZS 12, 000,000,000/= and the guarantors had to cover the balance. However, in the counter affidavits filed in 2 | Page 3 | Page Miscellaneous Commercial Application No. 169 of 2023, the bank/respondent admitted that, actually, valuation in respect of the first applicant's properties had been inflated. Therefore, according to the learned advocate for the applicants, the valuation did not show the correct value of the properties at the time of signing the deed of settlement. The learned advocate for the applicants submitted that, had the fact pertaining to inflation of value of the properties come to the knowledge of the applicants before execution of the mortgage documents or deed of settlement, the latter would not have been signed. It was submitted that, the act of inflating or exaggerating the true value of the securities amounted to deceiving the borrower and the guarantors. In view of the learned advocate, what the respondent did was against the prudential regulations on lending and mortgage financing by the Bank of Tanzania. The

learned advocate for the applicants finalised by submitting that, the conducts of the respondent which induced the signing of mortgage documents and deed of settlement constituted fraud, mistake and illegality which were sufficient grounds for setting aside the deed of settlement and the resultant consent decree. The learned advocate was insistent that, had the applicants known this fact before, they would have raised a counter claim. 3 | Page 4| Page Mr. Mpaya Kamara learned advocate commenced his reply submissions by adopting the contents of the respondent's counter affidavit as part of his submissions. The learned advocate appreciated the allegations made by the applicants, on fraud and illegality. According to him, for illegality to be a ground for extension of time, the same had to be apparent on the face of the record, in this case, on the face of the consent decree sought to be reviewed. The learned advocate for the respondent submitted that, what the applicants were citing was something that emerged so many years after issuance of the consent decree sought to be reviewed. It was submitted that, the affidavit supporting the application did not indicate any illegality but fraud. According to the learned advocate, to be able to determine the application, deliberations ought to be made on the following questions: (i) Could the court extend time so as to review a consent

decree on a ground of fraud? (ii) Whether an application for review could lie against a consent decree on a ground of fraud. To supply answers to the proposed questions, the learned advocate for the respondent sought aid from the decision of the Court of Appeal in MOHAMED ENTERPRISES (T) LIMITED VS. MASOUD MOHAMED NASSER, CIVIL APPLICATION NO. 33 OF 2012, CAT, AT DAR ES 4 | Page 5 |P a g e SALAAM. The learned advocate submitted that, in view of the cited decision hereinabove, the applicants' mission could only be possible in a suit and not through bringing evidence by way of affidavits as it was done in the present application. The learned advocate was insistent that, in any case, extension of time could not be done in futility but with a purpose. It is trite that the court can only grant extension of time when the intended application would be in its jurisdiction and not otherwise. Therefore, the determinative question is whether the court is dothed with jurisdiction to review its compromise/consent decree on grounds of misrepresentation, fraud or mistake, by way of a chamber application. About twelve years ago, an answer to this issue was supplied by the Court of Appeal in MOHAMED ENTERPRISES (T) LIMITED VS. MASOUD MOHAMED NASSER (supra). According to the decision in the above cited case, an aggrieved party may, if he so wishes, institute a new suit challenging the findings

of the earlier one. Responding to an issue akin to the one raised hereinabove, the Court cited Mulla on the Civil Procedure CodeQ& Ed. Vol. 1 PP. 299, 653 and 1066). The position is stated as follows: Page 299: 5 | Page 6 | Page w Unless all the parties agree, an application cannot be made to the court of first instance in the original suit to set aside a decree, though it may be done in the case of an interlocutory order.../' Page 653: 'z..... the only remedy of a person who wishes to challenge a compromise decree on the ground of fraud is to file a suit for setting aside the said decree.........." Page 1066: v..... Subsection (3), in so far as it bars an appeal from consent decrees, gives effect to the principle that, a judgment by consent, acts as an estoppel. In the case of a consent decree....could only be set aside by substantive proceedings appropriate to that particular remedy. A consent decree can be set aside on any ground which would invalidate an agreement such as misrepresentation, fraud or mistake. This can be done only by a suit and consent decree cannot be set aside by an appeal, review or by a rule obtained on motion. But the court in its inherent jurisdiction, may set aside an interlocutory consent order which is not a final order or judgment....." After the Court had reproduced the passages hereinabove, it expressed its accord with the said position by

emphatically 6 | Page 7 | Page stating that, it subscribed to the foregoing views by Mulla. Therefore, the issue is answered in the negative. That is to say, a court has no jurisdiction to review its consent decree on grounds of misrepresentation, fraud or mistake, by way of a chamber application. It has to be by way of a substantive suit. Given the position that a court cannot grant an application for extension of time to do what the court granting extension of time is not empowered to do, the present application is bound to fail. See: SHABAN R. KAVITENDA VS. YASIN S. KAVITENDA, CIVIL APPLICATION NO. 252/01 OF 2020, CAT, AT DAR ES SALAAM. For the foregoing reasoning, the application is dismissed for being unmeritorious. All the applicants are condemned to bear the respondent's costs of this application. It is so held. DATED at DAR ES SALAAM this 2£th day o UNE 2024. । ten /?/ JUDGE 28/06/2024 7| Page 8 | Page COURT: Ruling is delivered this 28th day of June 2024 in the presence of Mr. Roman Masumbuko learned advocate for the applicants, also holding brief of Mr. Mpaya Kamara learned voc^te f/r the respondent. C. P. MKEHA •z.

JUDGE * 28/06/2024 8 | Page