CIVIL APPLICATION NO 292 01 OF 2023 FBME BANK LIMITED AND ANOTHER VS COAST TEXTILES LIMITED AND ANOTHER 1

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 292/01 OF 2023 FBME BANK LIMITED.... .................................................. ........1st APPLICANT CONSOLIDATED HOLDING CORPORATION...... ..................... 2nd APPLICANT VERSUS COAST TEXTILES LIMITED.................. ................ .................1st RESPONDENT FIVE STAR INVESTMENT LIMITED..........................................2nd RESPONDENT (Application for extension of time to lodge record of appeal and memorandum of appeal to the Court of Appeal of Tanzania at Dar es Salaam) (Mruma, J.1 dated 20th day of May, 2022 in Execution No. 63 of 2021 RULING 25th October & 1st November, 2024 MGEYEKWA. J.A.: This is an application for enlargement of time within which to lodge a memorandum and record of appeal out of time. The application is by way of a Notice of Motion which was taken out under the provisions of rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit deposed by Amon Meja, Principal Officer of the first applicant. The first and second respondents resisted the application and have demonstrated their resistance by filing two affidavits in reply deponed by Sudhir Kumar Lakhanpal, the Managing Director of the first applicant, and Akil Mohamed, the Director of the second respondent. Briefly, the background of the matter goes as follows: Sometimes in 2009, the first respondent successfully lodged a Civil Case No. 129 of 2009 against the first applicant. On 27th July, 2015, the High Court delivered its judgment in favour of the respondents. On 30th September, 2021, the first respondent lodged Execution No. 63 of 2021 which was granted by the High Court in favour of the first respondent vide a ruling delivered on 20th May, 2022 (Mruma, J.). Prior to the impugned ruling, it would appear that on 8th May, 2017, the business operation of the first applicant was revoked by the Bank of Tanzania (BOT) after its branch in Cyprus was alleged in money laundering offenses, as a result, the BOT placed the first applicant under compulsory liquidation and the Deposit Insurance Board was appointed as a liquidator of the 1st applicant. For those reasons, the execution of the decree against the first applicant became futile for every attempt. Finally, as intimated earlier, the High Court on 20th May, 2022 (Mruma, J.) having interpreted liquidation laws, ruled that though the first applicant was put under liquidation, it was after the decree was passed and that it was silent whether liquidation was due to insolvent or otherwise. The High Court ultimately ordered the 1st respondent to execute its decree as prayed. Discontented, on 2nd September, 2019 the applicant, lodged a notice of appeal and applied for leave to appeal to the High Court and to be supplied with necessary documents and leave availed to him on 22nd March, 2023. The applicant finally filed the instant application for extension of time to lodge a record of appeal out of time on 5th May, 2023. At the hearing of the application, the first applicant was represented by Mr, Edwin Joshua We biro, learned State Attorney whereas the first respondent was represented by Mr. Joseph Rutabingwa, learned counsel, and the second respondent was represented by Mr. Julius Kalolo Bundala, [earned counsel. Mr. Webiro commenced his submission by fully adopting the contents of the notice of motion and the supporting affidavit. He submitted that what amounts to a good cause is not defined in the status but there are some factors in ascertaining whether there is a good cause such as, the applicant must account for all the period of delay; the delay should not be inordinate; the applicant must show diligence, and illegality of the decision sought to be challenged. To buttress his argument, he referred me to the case of Lyamuya Construction Company v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application 2 of 2010 [2011] TZCA 4 (3 October 2011 TanzLII). It was Mr. Webiro's contention that the time to lodge an appeal lapsed when the applicants were seeking for leave to appeal. He referred me to paragraph 10 of the supporting affidavit and submitted that the time for filing an appeal lapsed during the period which the applicants had to seek and obtain the requisite leave to appeal as well the copies of proceedings in respect to Misc. Civil Application No. 269 of 2021. He submitted that the copies of proceedings and drawn order were supplied to the applicants on 22nd March, 2023. After receiving the said documents, the Solicitor General held a meeting with Deposit Insurance Board on the way forward and it was resolved to lodge an application for extension of time before the Court. Expounding, the learned State Attorney submitted that from 11th July, 2022 when the drawn order was availed to the applicants to 5th May, 2023 when they lodged the instant application is a lapse of eleven months which are not accounted for. On illegality, Mr. Webiro stated that the impugned decision is tainted with illegalities. Elaborating, he argued that the High Court ordered the execution to proceed against a Company that was under liquidation, the Decree - Holder did not pray for the arrest and committing of the Judgment Debtor as a civil prisoner. To bolster his submission, he referred me to paragraph 12 of the supporting affidavit. He contended that the illegalities are apparently on the face of the record. To reinforce his submission, he cited the cases of Lyamuya Construction Company (supra) and Tanzania Breweries Ltd v. Harman Bildad Minja, Civil Application No. 11 of 2019, [2020] TZCA (19 March 2020, TanzLII), the Court held that illegality is a ground for extension of time even when the applicant has failed to account for each day of delay. He believed that the grounds for extension of time met the threshold for it to be granted. In conclusion, the learned State Attorney beckoned upon me to grant the applicants' application. In response, Mr. Rutabingwa strenuously opposed the application by arguing that the applicant had failed to show good cause for extension of time. Relying on the affidavit in reply he had earlier on lodged, Mr, Rutabingwa contended that the applicants'justifications for delay are based on the decision of Kakolaki, J while the impugned decision is related to Execution No. 63 of 2021 delivered by Mruma, J. He went on to reiterate his argument that, the applicants were required to obtain a certificate of delay before applying for extension of time. It was his argument that since they did not obtain the certificate of delay, they were 5 not supposed to file the instant application. To reinforce his argument, he cited the case of David Jospeh Mahende v. African Group Tanzania Ltd, Civil Application No. 6/ 16 of 2019, the Court held that parties were supposed to exhaust the necessary procedure by obtaining a certificate of delay. The learned counsel for the first respondent continued to argue that in accordance with rule 10 of the Rules, the applicants were required to account for each day of delay from 14th March, 2023 when they received the Deputy Registrar letter and prove if they received it. Mr. Rutabingwa referred me to paragraph 11 of the supporting affidavit, and argued that the alleged meeting was held after receiving the documents which related to the decision delivered by Kakolaki, J while the impugned decision delivered by Mruma, J was finalized longtime ago. Counting for the days of delay, Mr. Rutabingwa started to count the days of delay from 23th March, 2023 when the applicant was notified to collect the proceedings to 5th May, 2023 when he lodged the instant application. It was his further argument that approximately 51 days are unaccounted for. Elaborating, he argued that, the applicant was required to account the entire period starting from the date when the Mruma, J delivered the ruling which was delivered on 20th May, 2022, to 19th July, 2022, the last date of filing the memorandum, and record of appeal. To buttress his 6 submission, he cited the case of Zahara Kitindi & Kitindi v. Juma Swalehe and 9 others, Civil Appeal Application No. 9 of 2016. Regarding the ground of illegality, Mr. Rutabingwa was brief and straight to the point. He contended that the alleged illegalities are not apparent on the face of the record. In conclusion, he urged me to dismiss the application for being short of merit. On his part, Mr. Bundaia prayed to adopt his affidavit in reply. Briefly, he argued that the applicant did not serve them with a copy of the notice of appeal. Therefore, he invited me not to dismiss the applicants' application. In his brief rejoinder, apart from maintaining his submission in chief, Mr. Webiro argued that the issue of whether the second respondent was served with a notice of appeal cannot be determined at this juncture, instead the same will be determined during the hearing of the appeal. The applicant's counsel countered the argument that the applicant was required to obtain a certification of delay. He spiritedly contended that the applicant had timely obtained all necessary documents in regard to the decision of Mruma. J which is the subject matter in the intended appeal. Therefore, the certificate was of no use. Mr. Webiro argued further that the applicant only delayed to receive an order of leave which is why they had to keep waiting to receive the same hence the delay. He distinguished the cited cases of David Mahende (supra) and argued that the facts of the case was distinguishable from the case at hand. Elaborating, he argued that, the applicant was given fourteen days to lodge a memorandum of appeal but he did not comply with the court order. Before dealing with the substance of this application in the light of the competing submission, I find it appropriate to address the point raised by the respondents' counsel. In his submission, Mr. Rutabingwa submitted that the applicant was required to obtain a certificate of delay before lodging the instant application. It is in the record that, the applicant has obtained all documents related to the impugned ruling within time. As rightly submitted by Mr. Webiro, the applicant was not required to obtain a certificate of delay. Therefore, Mr. Rutabingwa's submission is unfounded. Likewise, I am at one with the learned State Attorney's submission that, the issue of whether or not the second respondent was served with a copy of notice of appeal, does not render the application incompetent, since this not a legal requirement stated under rule 10 of the Rules. Instead, the counsel can raise his concern during the hearing of the intended appeal. Therefore, I proceed to determine the application on merit. It is trite law that an application for extension of time can be granted upon good cause for delay has been established. This is so stipulated under rule 10 of the Rules, 2009. The said provision provides as hereunder: "10. The Court may, upon good cause shown, extend the time limited 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 time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. " Pursuant to the above-cited rule 10 of the Rules, an application of this nature will only be allowed if an applicant has shown good cause to warrant the Court exercise its discretion judiciously to extend time. See the case of Lyamuya Construction v. Board of Registered Trustees of_Young Women's Christian Association of Tanzania, Civil Application 2 of 2010 [2011] TZCA 4 (3 October 2011 TanzLII), Another factor to be considered is whether there is a point oflaw of sufficient importance such as illegality of the decision sought to be challenged. Among the decisions on this point include, Chiku Harid Chonda v. Getrude Nguge Mtinga as Administratratix of the late Yohane Claude Dugu, Civil Application No. 509/01 of 2018 (unreported) and Arunaben Chaggan Mistry v. Naushad Mohamed Hussein & 3 Others, Civil Application No. 6 of 2016 [2016] (20 October 2016TanzLII) to mention but a few. I now turn to the affidavit and follow the sequence chronologically: According to paragraph 1, the applicant's affidavit, the Execution sought to be challenged was delivered on 20th May, 2022 and the applicant was required to lodge an appeal within sixty days from the date when the said Execution was determined. In reckoning the days of delay, the applicant was required to account of the days from 19th July, 2022 which was the last day for filing the intended appeal to 5th May, 2023 when he lodged the instant application. Looking closely, the supporting affidavit, in particularly paragraphs 7 and 8, the applicant stated clearly that, aggrieved by the decision of Mruma, J, he lodged a notice of appeal and applied for leave to appeal vide Misc. Civil Application No. 260 of 2022. In paragraph 9 of the supporting affidavit, he stated that he obtained leave on 22nd March, 2023. According to the supporting affidavit, it is vivid that, the days spent by the applicant in prosecuting Misc. Civil Application No. 260 of 2022 for leave to appeal is the main cause for his delay to lodge an appeal. Therefore, the days of delay 10 from 19th July, 2022 which was the last day of filing the intended appeal to 22nd March, 2023 when leave was granted are accounted for. Again, the applicant was required to account for the days of delay 22nd March, 2023 when leave was granted to 5th May, 2023 he lodged the instant application. According to paragraph 11 of the supporting affidavit, the applicant stated that the period from 22nd March, 2023 to 5th May, 2023, he convened a meeting, prepared requisite documents and lodged the instant application on 5th May, 2023. I find justification in the applicant's affidavit and Mr. Webiro's submission in accounting for the days of delay for the whole period of delay. Regarding the ground of illegality of the decision desired to be impugned. The illegality in paragraph 12 (a) of the supporting affidavit is alleged to reside in the powers exercised by the High Court in hearing Execution No. 63 of 2021. I am mindful that, at this juncture, I am not supposed to dig much and demand the applicant to divulge further on the alleged illegality. The legal position, as it currently obtains, is that where illegality exists and is pleaded as a ground, the same may constitute the basis for an extension of time. This principle was accentuated in the Permanent Secretary Ministry of Defence & National Service v D.P. Valambhia [1992] TLR 185, to be followed by a celebrated decision of Lyamuya Construction Company Limited and Citibank (Tanzania) Limited v. T.C.C.L. & Others, Civil Application No. 97 of 2003 (unreported), the scope of illegality was taken a top-notch when the Court of Appeal of Tanzania propounded asfollows:- "Since every party intending to appeal seeks to challenge a decision either on points ofiaw or facts, it cannot in my view, be said that in Vaiambhia’s case, the Court meant to draw a generai rule that every applicant who demonstrates that his intended appeal raises points o f law should, as o f right, be granted an extension o f time if he applies for one. The Court there emphasized that such a point ofiaw must be of sufficient importance and, I would add that it must a/so be apparent on the face o f the record, such as the question ofjurisdiction; not one that would be discovered by a long drawn argument or process. " [Emphasis added]. Applying the above authorities, it is clear that the ground of illegality in paragraph 12 (i) of the affidavit cited by the applicant touches on jurisdiction. In my considered view, this point of illegality meets the requisite threshold for consideration as the basis for the enlargement. Therefore, I am of the decided opinion that the discretion of the Court in terms of Rule 10 of the Rules can be properly exercised to grant the application. In the upshot, I grant the application. The applicant is given thirty (30) days reckoned from the date of delivery of this ruling within which to lodge the memorandum and record of appeal. I make no order as to the costs. Order accordingly. DATED at DAR ES SALAAM this 1st day of November, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 1st day of November, 2024 in the presence of Mr. Stephen Kimaro, learned State Attorney for the Applicants and Mr. Evodius Rutabingwa, learned counsel holding brief for Kalolo Bundala for the 2nd Respondent is hereby certified as a true copy of the original.