CIVIL APPLICATION NO 445 01 OF 2022 NATIONAL BANK OF COMMERCE LIMITED VS BALLAST CONSTRUCTION COMPANY LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 445/01 OF 2022 NATIONAL BANK OF COMMERCE LIMITED............................. ...... APPLICANT VERSUS BALLAST CONSTRUCTION COMPANY LIMITED............................... RESPONDENT (Application for extension of time to file a notice of appeal out of time against the judgment and decree of the High Court of at Tanga) (Msuva, 3.) dated 9th day of September, 2015 in Civil Case No. 10 of 2009 RULING 10th & 17th July, 2024 MGEYEKWA. 3.A.: , The applicant, n a tio n a l bank o f commerce lim ite d is seeking an order of extension of time within which to file a notice of appeal out of time, and the application is brought by way of notice of motion made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit deposed by Desmond Malyi, the applicant's Principal Officer. The second respondent did not file an affidavit in reply to oppose and or support the application. i The first respondent resisted the application and has demonstrated his resistance by filing an affidavit in reply affirmed by Shukuru Khalifa, learned counsel and a supplementary affidavit deponed by Hassan Abdallah Kilule. In essence, the first respondent contends that the application is without merit. In addition, the first respondent's counsel filed a notice of preliminary objections on the following two points of law: 1. That, the application is bad in law as the applicant has occasioned abuse o f the Court process. 2. That, the application is bad in law as the applicant has set a new. case which is not supported by pleadings and available record. The brief background giving rise to the instant application, as per the supporting affidavit is to the effect that, the first respondent sued the applicant and second respondent jointly and severally for breach of duty of secrecy, failure to maintain confidentially and divulgence of financial information furnished in confidence relating to a garnishee order alleged to have been faxed to Dr. Alex Nguluma and Lafka strangers to the same. The High Court rendered a judgment in favour of the first respondent. Aggrieved, the applicant filed a notice of appeal and his appeal was registered as Civil Appeal No. 72 of 2017. Unfortunately, the said appeal ended being struck out for being incompetent Discontented, on 4th November, 2021, the applicant unsuccessfully filed an application for extension of time to file a notice of appeal at the High Court. To remedy the situation, he preferred the instant application. Before the commencement of hearing, the Court granted leave to the applicant to amend the notice of motion and supplementary to include the name of the second respondent. At the hearing of the application, the applicant was represented by Mr. Sabato Ngogo, learned counsel whereas the first respondent was represented by Mr. Kilule, learned counsel. The second respondent was represented by Mr. Bakari Juma, learned counsel. As the practice of the Court demands, we had to determine the preliminary objection first before going into the merits or demerits of the application. As alluded to above, the counsel for the first respondent has raised two points of objection. In support of the first point of preliminary objection, the learned counsel for the first respondent contended that the application is 3 incompetent because it was lodged in contravention with the order of this Court which was delivered on 8th November, 2023 (Ngwembe, JA) which granted leave to the applicant to amend the notice of motion by including the name of Mr. Steven R. K. Shiletiwa. He submitted that rule 45A of the Rules insist on consistence while the application at hand is inconsistence in regard to the parties. Elaborating, he argued that in Civil Case No. 10 of 2009, the applicant and the second respondent were jointly sued by the first respondent. Thus, after being served with a notice of motion, he was surprised to find out that Mr. Steven R. K. Shiletiwa who was dropped in the defunct notice of motion was added as the second respondent in the amended notice of motion and supplementary affidavit instead of being added as co applicant as ordered by the Court. It was Mr. Kilute's argument that, it was inappropriate to join Steven R. K. Shiletiwa as a second respondent in this application. He valiantly argued that, in doing so, the applicant has departed from the High Court's pleadings. To bolster his stance, he cited the cases of Makori Masafa v. Joshua Mwaikambo and Another [1987] T.L.R 88 and Martin Fredrick Rajabu v. Ilemela Municipal Council & Another, Civil Appeal No. 195 of 2019 [2022] TZCA 434 (18 July 2022 TanzLII). Submitting on the second point of objection, the learned counsel insisted that, the applicant has set a new case which is an abuse of court process. He was fortified with the persuasive Nigerian's case of Imaifule & Others v. The State [1998]4 SCNJ 69, the definition was stated in the case of JV Tangim Construction Co. Ltd and Technical Combone Construction Ltd (Joint Venture) v. Tanzania Ports Authority & Another, Commercial Case No. 117 of 2015 which among other things abuse of Court process was defined to mean something geared to harass a party and delay case disposal. In conclusion, the learned counsel beckoned upon me to dismiss the application with costs. In reply, at the outset, Mr. Ngogo distinguished the cases cited by Mr. Kilule and stated that the said cases are related to pleadings. Mr. Ngogo submitted that, the applicant complied with the Court's order by joining Mr. Steven R. K. Shiletiwa as the party to the application. Expounding, he argued that the essence of joining the second respondent is because had taken party in the High Court's proceedings, thus, might be affected by the outcome of the instant application. That, the Court did not order the applicant to join him as the co-applicant. To bolster his stance, he implored this Court to be guided by the cases of TPR Bank PLC (Successor in Title to Tanzania Postal Bank) v. Rehema Alatunyamadza & 2 others, Civil Appeal No. 5 155 of 2017 [2021] TZCA 46 (1 March 2021 TanzLII). He urged the Court to dismiss the preliminary objection with costs. In rejoinder, Mr. Kilule reiterated his submission in chief. He distinguished the cited case of TPB Bank PLC (Successor in Title to Tanzania Postal Bank) (supra) by argued that, the Court order was related to inclusion of a new name while in the instant application, the issue of new name does not arise. I have considered the rival submissions advanced by the learned counsel for the parties for and against the preliminary objection raised by the first respondent. Therefore, the issue for determination is whether the objection is meritorious. I will address the two points of objection conjointly because they are related. The points of objection are in connection to the order of this Court dated 8th November, 2023 before the single Justice who granted leave to the applicant to amend the notice of motion by including the name of Mr. Steven R. K. Shiletiwa and supplementary affidavit. It is evident that the applicant complied with the Court order by filing an amended notice of motion and supplementary affidavit whereas Mr. Steven R. K. Shiletiwa was joined as a party. Corresponding observation were made in the case of Isaack Wilfred 6 Kasanga v. Standard Chartered bank Tanzania Limited, Civil Application No. 453/01 of 2019 [2022] TZCA 222 (22 April 2022Tanzl.il), where the Court was faced with an akin situation, and observed that parties in the proceedings should at any given time appear so that they can be given right to be heard. As rightly submitted by Mr. Ngogo that at the High Court, the applicant and the second respondent were co-applicants because they had common interest to apply for extension of time which was refused. Thereafter, the second respondent herein lost interest to pursue the matter while the applicant resorted to exercise her right by filing the instant application. It is my considered view that since the second respondent had no interest to pursue the matter, therefore, his name cannot be left out and a proper procedure is to join him as a second respondent. All said, I am not at one with Mr. Kilule that joining Steven R. K. Shiletiwa as a second respondent amounts to a new case. It suffices to say that, since Steven R. K. Shiletiwa is joined as a party, the consistence intended under Rule 45A of the Rules is complied with. Thus, the cases of Masaga K. Joshua (supra), Martin Fredrick (supra) and Imaifu (supra) cited by Mr. Kilule are distinguishable from the circumstances of the application at hand. 7 In sum, the preliminary objection has no merit, and it is hereby overruled without costs. The matter to proceed on merit. Reverting back to the application at hand, the learned counsel for the applicant commenced his submission by fully adopting the contents of the notice of motion, the supporting affidavit. The applicant has put forward two major reasons for the delay: one, that the delay involved a technical delay, and two, that there is an apparent illegality in the impugned judgment of the High Court. On the issue regarding accounting for the days of delay, he briefly stated that, the applicant lodged his previous notice of appeal within time but it was struck out. Mr. Ngogo stated that the period when the applicant was in court corridors amounts to technical delay. On the issue of illegality, the learned counsel made reference to the decisions of the Court in Principal Secretary Ministry of Defence and National Services v. Devram Valambia T. L. R (1992) 185 and Ally Salum Said v. Idd Athumani Ndaki, Civil Application 450 of 2021 [2023] TZCA 191 (19 April 2023 TanzLII). Elaborating, Mr. Ngogo submitted that, it settled principle that where illegality exists and is pleaded as a ground, the court will always grant extension of time to for the Court to ascertain the said illegality. He added 8 that such a point of illegality must be sufficiently important and not one of a long-drawn argument To support his submission, he referred me to the case of Lyamuya Construction v. Board of Registered Trustees, Civil Application No. 2 of [2011] TZCA 4 (3 October 2011 TanzLII). He It was the applicant's averments that, the alleged illegality is residing in the jurisdiction of the trial court. To buttress his submission, he referred me to paragraph 17 of the applicant's affidavit supporting the application and argued that, in determining the pecuniary jurisdiction of the High Court what should be considered by the court is the specific claims and not the general damages. To support his submission, he cited the case of Mwanancht Communication Ltd & 2 others v. Joshua K. Kajula & 2 others, Civil Appeal No. 126/01 of 2016, and Justo Ally v. Lukas Komba & another, Civil Application No. 484/17 of 2019. He further clarified that, in the present application, the first respondent claimed for general damage to the tune of Tshs. 500,000,000/= and the trial court awarded general damage to the tune of Tshs. 300,000,000/=. In conclusion, he urged me to grant the application with costs. Mr. Kilule strenuously resisted the application with some force. He argued that the applicant has completely failed to demonstrate good cause for extension of time. He clarified that, reasons for the delay advanced by the applicant in the affidavit in support of the application together with the oral submission by Mr. Ngogo do not constitute good cause for grant of an application of this nature. Relying on the affidavit in reply, he contended that the issue of illegality is an afterthought. Expounding, he submitted that the alleged illegality is not apparent, it requires long drawn reference of the record. He added that the claimed amount of Tshs. 600,000,000/= was pleaded and supported by evidence and throughout the proceedings there was no any objection raised by the applicant. In conclusion, he urged me to dismiss the application with costs. Rejoining, Mr. Ngogo began by a reiteration of what he had submitted in chief and maintained that sufficient cause is evident. Finally, he urged me to grant the applicant's application without costs. I have thoroughly followed up and weighed the rival submissions made by the learned advocates and read through the notice of motion and the affidavit in support of the application. In determining the application, the main issue for my consideration is whether or not the applicant has been able to show good cause to justify his application. For that reason, many and varied circumstances could constitute good cause in any particular case. In Lyamuya Construction v. Board of Registered Trustees, Civil Application No. 2 of 2010, the Court listed some of the factors to be 10 considered which include: (a) account for all the period for the delay, (b) that the delay should not be inordinate, (c) the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) if the Court feels that there are other sufficient reasons such as the illegality of the decision sought to be challenged. Starting with the issue of accounting for each day of delay, I do not think that I need to dwell on the long background of this matter. The applicant claimed that he lodged Civil Appeal No. 72 of 2017 before the Court within time, however, the same was struck out for being incompetent. It is my considered view that, as for the period of delay between the filing of Civil Appeal No. 72 of 2017 and 22nd February, 2019, when it was struck out for being incompetent, that period can conveniently be termed as a technical delay on which the applicants are not to blame for the delay of the period during the pendency of Civil Appeal No. 72 of 2017. There is a plethora of authorities which have subscribed to this position. See for instance the cases of Fortunatus Masha v. William Shija and Another [1997] TLR 1541., Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006 (unreported) and Zahara Kitindi & li Another v. Juma Swalehe & 9 Others, Civil Application No. 4/05 of 2017 [2017] TZCA 196 (3 March 2017 TanzLII). Apart from the technical delay, the applicant was required to account for the period of delay from 18thJuly, 2022 when the applicant was issued a certificate of delay which excluded the delay of 43 days from 2nd day of June,2022 to 15th day of July, 2022. Counting the 14 days from 15th July, 2022 when the applicant was notified that the documents were ready for collection, the final date for her to have filed the instant application was on 29th July, 2022. But the instant application was filed on 1st August, 2022. I have perused the applicant's affidavit and I entirely agree with Mr. Kilule's argument that the applicant has not expressly stated in his affidavit and submission the reason for delaying filing the notice of appeal after obtaining the certificate of delay. Therefore, this reason cannot hold water. With regard to the issue of illegality, Mr. Ngogo submitted that the trial court had no jurisdiction to determine the suit. The applicant's ground of illegality was vehemently opposed by the respondent’s counsel on the ground that the alleged illegality is not apparent and requires long drawn argument. 12 In the present application, the illegality is alleged to reside in the powers exercised by this court in excess of its hearing the Civil Case No. 10 of 2009 of the High Court while it had no jurisdiction to entertain the dispute. 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. It is noteworthy that in paragraph 17 of the affidavit, the applicant complained that the High Court lacked jurisdiction to try the matter between the parties herein on the reason which is apparent on the face of the record that the subject matter of the suit mainly based on general claims only. In our previous decision in the case of VIP Engineering & Marketing Ltd v. City Bank Tanzania Limited, Civil Application 24 of 2019) [2021] TZCA 112 (14 April 2021 TanzLII), the Court had the view that where a point of law at issue is the illegality of the impugned decision that is of sufficient importance, it constitutes good cause for extending time. The same stance was reiterated in Abubakar Ali Himid v. Edward Nyelusye, Civil Application No. 51 of 2007 (unreported) that where a point of law at issue is the question of illegality of the impugned decision, time will always be extended and leave to appeal to the Court must be granted even where there is an inordinate delay. 13 The discussion above culminates into the conclusion that the applicant deserves consideration of the Court on the allegation of illegality. Therefore, I am of the decided opinion that the discretion of the Court in terms of Rule 10 of the Tanzania Court of Appeal Rules, 2009 can be properly exercised to grant the application. Consequently, the applicant is granted extension of time to file a notice of appeal within thirty (30) days from the date of delivery of this ruling. Considering the circumstances of this application, I make no order as to costs Order accordingly. DATED at DAR ES SALAAM this date 17th July, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 17th day of July, 2024 in the presence of Mr. Yusuph Mathias, learned counsel for the Applicant and also holding brief of Mr. Hassan Haule & Bakari Juma, learned counsel for the Respondents, is hereby certified as a true copy of the original.