LETICIA VEDASTO NGILILEA T A LETISCO SUPLIES VS EDMUND AARON MWASAGA MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 146 OF 2023 (Arising from Commercial Case No. 51 of 2012) LETICIA VEDASTO NGILILEA T/A LETISCO SUPPLIES.............. 1st APPLICANT GODFREY RUTAIHWA RUTECHURA........................................... 2nd APPLICANT VERSUS EDMUND AARON MWASAGA.................................................. 1st RESPONDENT EXIM BANK (T) LIMITED................................. ...................... 2nd RESPONDENT SHEILA A. SHABAN t/a MULTI-LINK AGENCY AND COURT BROKER............................................................. 3rd RESPONDENT RULING Date of last order: 25/04/2024 Date of Ruling: 30/04/2024 MKEHA, J. In the instant application, the applicants seek the following orders: 1. That, the Honourable Court be pleased to grant the applicants extension of time to file their application to set aside sale of plot no. 1270, CT no. 78611, Mbezi Luis, in Execution of Decree; 2. Costs of this application be provided for; i 3. Any other order(s) or reliefs) as this Honourable Court may deem just to grant. The application is brought under section 14 of the Law of Limitation Act [Cap. 89 R.E. 2019]. The same is by way of Chamber Summons supported with a joint affidavit of both applicants. On the other hand, the application is opposed by all the respondents through their respective counter affidavits. As per the material facts obtainable from the parties' affidavits, the brief history of this application is as follows: The 2nd respondent successfully instituted Commercial Case No. 51 of 2012 in this court and obtained a judgment and decree against the applicants herein. In execution of the said decree, Plot No. 1270, CT No. 78611, Mbezi Luis belonging to the applicants, was sold by the 3rd respondent via an auction conducted on 18/02/2022. The 1st respondent was the purchaser. Dissatisfied with the manner in which their property was sold, the applicants have brought this application with a view of being granted extension of time so that they can file an application for setting aside the said sale. 2 Hearing of the application was conducted by oral submissions. Whereas the applicants were represented by Mr. Walter Shayo learned advocate, the 1st respondent and 2nd respondent were respectively represented by Messrs. Roman Masumbuko and Kyariga N. Kyariga, learned advocates. Submitting for the applicants, Mr. Shayo learned advocate commenced by adopting the contents of the applicants' affidavit. He went on to submit that, the applicants be given extension of time to set aside sale for reasons of illegality of the purported sale. He submitted further that, whereas the forced sale value at the time when the loan was advanced was TZS. 60,000,000/=, the market value of the property was TZS. 90,000,000/= in 2022. However, the same was sold at TZS. 46,000,000/= in the year 2022. According to the learned advocate, the said sale contravened section 133(1) of the Land Act. Mr. Shayo learned advocate continued to submit that; the disputed property was sold to the 1st respondent who was the Bank Officer involved in issuance of loan to the applicants. According to the learned advocate, the same Bank Officer was involved in filing the application for execution. 3 The learned advocate submitted that, the disputed property was auctioned by brokers who were not appointed by the court. In view of the learned advocate, the illegalities suffice to be the basis for extension of time. In support of his submissions, the learned advocate referred this court to the case of THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE V. DEVRAM VALAMBIA [1992] T.L.R. 185, which is an authority to the effect that, when the point at issue is one alleging the illegality of decision being challenged, the court has a duty even if it means extending time for the purpose of ascertaining the point and if the illegality is established, to put the matter and the record right. In reply, Mr. Masumbuko learned advocate was of the view that, the application was brought under a wrong provision of the law in the sense that, there was nothing like section 14 of the Law of Limitation Act. He also adopted the 1st respondent's counter affidavit and supplementary counter affidavit to form part of his submissions. Regarding sale of the disputed property, the learned advocate submitted that, the same was sold almost at 76% of the forced market value. And on the allegation of the disputed property having been purchased by the Bank Officer who was involved in granting the loan, the learned advocate 4 submitted that, the said purchaser was not the decree holder. He further insisted that, the applicants' affidavit did not allege any fraud on part of the purchaser. On the complaint that the brokers who auctioned the disputed property had not been appointed by the court, the learned counsel submitted that, the broker had been appointed by the court. He concluded that, there was no sufficient cause for delay. On his part, Mr. Kyariga learned advocate commenced his submissions by adopting the contents of the 2nd respondent's counter affidavit. He went on to submit that, there was no decision of the court sought to be challenged; That, there was no decision to be rectified; That, the alleged illegalities involved a long process of arguments to be established; That, the Court Broker who auctioned the disputed property was appointed by the court; The learned advocate submitted also that, the property was sold at more than 75% of the forced sale value; That, there was no statutory law barring Bank Officials from bidding at public auctions. In rejoinder, Mr. Shayo learned advocate insisted that, the purchaser was for all intents conflicted as he was an officer of the decree holder. The learned advocate pressed for grant of the application. 5 The present application is for extension of time to file an application for setting aside sale of Plot No. 1270, CT No. 78611, Mbezi Luis which was conducted in execution of this court's decree in Commercial Case No. 51 of 2012. It is trite law that, for an application of this nature to succeed, the applicant must adduce sufficient cause for delay. This position obtains its basis under section 14(1) of the Law of Limitation Act [Cap. 89 R.E. 2019]. Therefore, basing on the position of the law and after paying due consideration to the parties' affidavits and submissions, the issue for determination is whether the Applicants have adduced sufficient cause for extension of time. Careful consideration of the Applicants' submissions and affidavits reveals one ground in common for extension of time. That is, illegalities in respect of sale of Plot No. 1270, CT. No. 78611, Mbezi Luis. According to the applicants' position, the alleged illegalities include; one, the said property was sold at an undervalue, two, the property was sold to the 1st respondent who was at the time of public auction the Principal Officer of the decree holder without the court's permission, three, the Court Broker who conducted the said sale was not appointed by the court. 6 These allegations were vehemently disputed by all the Respondents through their respective affidavits and submissions of the counsel for the 1st and 2nd Respondents. I am mindful that, the term sufficient cause is not statutorily defined. However, there are plenty of precedents setting forth various conditions or guidelines in determining the term sufficient cause. The conditions were stipulated in the case of LYAMUYA CONSTRUCTION COMPANY LIMITED V. BOARD OF REGISTERED TRUSTEES OF YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF TANZANIA, CIVIL APPLICATION NO. 2 OF 2010, COURT APPEAL OF TANZANIA, AT ARUSHA. They include; 1. The applicant must account for all the period of delay. 2. The delay should not be inordinate. 3. The applicant must show diligence, and not apathy, negligence or sleepness in the prosecution of the action. 4. If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. 7 Therefore, guided by the case law cited hereinabove, it is obvious that the scope of interpreting the term sufficient cause for purposes of extension of time is wide. Precisely, even points of law of sufficient importance amount to sufficient cause for extension of time. In other words, it is now settled that, allegations of illegalities amount to sufficient cause for extension of time. It is not disputed that the purchaser of the applicants' property happened to be the decree holder's employee who was the very person who initiated the execution proceedings on behalf of the decree holder. Neither of the respondents submitted that the requisite permission envisaged under Rule 70(1) of Order XXI of the Civil Procedure Code had been sought and obtained. This is a sufficient reason for holding that; the applicants have managed to establish one of the alleged illegalities. I need not deal with the other allegations to be able holding as I do, that, the application is meritorious. The same is granted. Thirty (30) days' time is given to the applicants for them to file the necessary application. I make no order as to costs. DATED at DAR ES SALAAM this 30th day of April, 2024. 8 C.P. MKEHA JUDGE 30/04/2024 Curt: Ruling is delivered in the presence of the first applicant, Mr. Roman Masumbuko learned advocate for the first respondent and Mr. Kyariga learned advocate for the second respondent. 9