national bank of commerce ltd vs mahmood salum chibango mhina others 2017 tzca 332 19 july 2017

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 472/17 OF 2016 NATIONAL BANK OF COMMERCE LIMITED......................... .......................APPLICANT VERSUS 1. MAHMOOD SALUM CHIBANGO MHINA 2. CHIBANGO INVESTMENTS COMPANY LIMITED^............RESPONDENTS 3. AISHA SAID MKOMWA J (Arising from the decision of the High Court of Tanzania at Dar es Salaam) (Mggyg,J0[ dated the 23rd day of March, 2016 in Land Case No. 299 of 2009 RULING 27th April & 19thJuly, 2017 MKUYE, J.A.: On the 8th day of June 2017, through the ruling handed down on 5/6/2017, I dismissed the Preliminary Objection which was taken by Mr. Kipeche learned advocate for the respondent, against the application for extension of time to lodge a notice of appeal and to file an application for leave to appeal to the Court of Appeal which was filed by the National Bank of Commerce (the NBC), the applicant. 1 Out of inadvertence, the ruling did not contain deliberations on the application itself though when the matter was called on for hearing on 27/4/2017, both parties made submissions for the preliminary objection as well as the application itself. This ruling is, therefore, intended to deliberate on the application on its merits. In Civil Application No 472/17 of 2016 the applicant had, through the services of IMMA Advocates lodged an application for extension of time to file a notice of appeal; and to file an application for leave to appeal to this Court against the decision and decree in Land Case No 299 of 2009 which was pronounced by Hon F.W. Mgaya, J on 23/3/2016. The grounds for the application can be extracted as follows: 1) The applicant was not notified of the delivery of judgment before and after its delivery. 2) The judgment subject to the intended appeal is tainted with illegality as the court awarded interests of 20% instead of 7% permitted by law. 3) The judgment is invalid for uncertainty as the court left other matters or rights for determination by other third parties or bodies. The applicant also seeks for an order for costs of and Incidental to this application to be in the cause. The application is made under rules 10, 47, 48 (1) and (2) and 49(1) of the Tanzania Court of Appeal Rules 2009, (the Rules) and it is supported by affidavits deponed by Mr. Gaspar Nyika and Ms. Madina Chenge, both learned advocates. The applicant filed a written submission in support of the application on 10/1/2017. On 25/1/2017 the respondents filed their joint affidavit in reply deponed by Mahamood Salum Chibago Mhina and Aisha Said Mkomwa; and they filed their written submission in reply on 13/2/2017. From what can be gleaned from affidivits of Mr. Nyika and Ms. Chenge together with written submission, the facts giving rise to the application can be outlined as follows: In the High Court (Land Division) the 1st respondent had instituted Land Case No 299 of 2009 against the applicant for among other things selling without notice his properties situated on Plots Nos 291 and 293 Block "H" Mbezl Beach within Kinondoni Municipality and the property situated on Plot No 125/1 Block "C" Mtoni Mtongani area in Temeke Municipality. He sought for a declaration that the said sale was procured fraudulently and, therefore, null and void; and also claimed to be awarded a sum of Tshs. 559,570/= as special damages from the loss he had incurred in Plot Nos. 291 and 293 Block "H" Mbezi Area while under the control of the fraudulent buyer. In her written statement of defence, the applicant admitted selling Plots Nos. 291 and 293 Block "H" Mbezi Beach by its statutory power of sale as a mortgagee; but she denied other 1st respondent's claims. She also raised a counter claim against the 1st, 2nd and the 3rd respondents requiring them to repay the overdraft facility which was apparently advanced to the 2nd respondent, by virtue of being guarantors and borrower. After a full hearing of the suit the respondent emerged successful. The applicant was aggrieved with the said decision. Since she was late to lodge a notice of appeal and to file an application for leave to appeal to the Court of Appeal, she filed an application for extension of time in the High Court (Land Division) through Misc. Civil Application No 367 Of 2016 but it was dismissed for want of sufficient reason. Hence, the applicant has brought this application as a second bite. When the application was called on for hearing the applicant entered appearance through Mr. Gaspar Nyika, learned counsel and the respondents were advocated by Mr. Joseph Kipeche also the learned counsel. In an endeavor to adduce the grounds for delay, the applicant, through the affidavits deponed by Mr. Nyika and Ms. Chenge together with a written submission in support of the application, has contended that, though hearing in Land Case No 299 of 2009 was completed on 9/10/2015 and judgment thereof was scheduled on 10/12/2015, the same was not delivered as scheduled and parties were informed that it would be delivered on notice. That, from 10/12/2015 when judgment was not delivered as scheduled, the applicant was neither notified of the date of delivery of the judgment nor was she notified that the judgment had already been delivered on 23/3/2016. It is contended further that the applicant became aware of the trial court's decision against her on 12/5/2016 when she was served with a demand letter dated 11/5/2016 in which the respondents demanded to be paid a sum of Tshs 559,510,000/= and the discharge and return of title deeds of the plots which were sold. This, she contended, amounts to a sufficient cause for extension of time to file of notice of appeal and application for leave to appeal to the Court of Appeal. The cases of VIP Engineering Marketing Ltd and 2 Others Vs Citi Bank Tanzania Ltd, Consolidated Civil Reference No. 6, 7 and 8 of 2006; Shanti Vs Hindoche and Others (1973) 1 EA 207; and Mumello Vs Bank of Tanzania (2006)1 EA 227 CAT were cited to bolster her argument. The other reason, the applicant contended, the judgment sought to be impugned is tainted with illegalities as the trial court awarded interest of 21% instead of 7% as per law; and that the judgment was invalid for being uncertain as the court left some matters to be determined by other third parties or bodies. I was referred to the case of Principal Secretary, Ministry of Defense and National Service Vs Devram Valambhia (1992) TLR 185 CAT in support. In his submission in Court, Mr. Nyika fully adopted and reiterated the contents in the notice of motion, both affidavits and the written submission in support of the application. In reply, the respondents in their joint affidavit and written submission in reply to the application contended that, on 10/12/2015, the date when the judgment was fixed to be delivered on 23/3/2016, Ms. Chenge who represented the applicant was present in court. That, the court clerk who 6 allegedly informed the applicant that the judgment would be delivered on notice was not mentioned and that even his/her affidavit is not attached to the application. They argued further that the claim that Ms. Madina Chenge, on 10/12/2015 was at Commercial Court is not substantiated since there was no summons, proceedings or affidavit attached to the application. They contended further that the applicant has not accounted for 19 days from when the first application was dismissed by the High' Court to the date when this application was filed. For that matter, they are of the view that the delay was out of a sheer negligence or laxity on the part of the applicant. While relying on a number of cases, the respondents contended that the reasons advanced by applicant do not amount to sufficient cause to justify extension of time. In his brief address while adopting the respondents'joint affidavit and written submission in reply, Mr. Kipeche, basically, reiterated what was in the affidavit and written submission and added that the applicant has not accounted for each day of delay. He submitted further that, the cases of VIP Engineering and Marketing Ltd (supra); Principal Secretary Ministry of Defence and National Service (supra); and Seif Store Ltd vs Zulfikar Karim Civil Application No. 181 of 2013, cited by the applicant to support the issue of illegality are distinguishable as they do not relate to breach of natural justice. I have carefully considered the competing arguments by both learned counsel in support of, and against the application. The governing law relating to extension of time or not to do so is rule 10 of the Rules. It empowers the Court to extend time for doing an act upon sufficient ground(s) being advanced. The said rule states as follows: "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or Tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as the reference to that time as so extended". 8 The above position was stated in the case of Kalunga and Company Advocates Ltd Vs National Bank of Commerce Ltd (2006) TLR 235 as follows: "This Court has discretion to extend time but such extension in the words o f rule 8 (now rule 10) can only be done if "sufficient reason" has been shown. (See also the case o f William Shija Vs Fortunatus Masha (1997) TLR 213)." Factors constituting sufficient reasons are not clearly stated as in most cases they depend on the circumstances of the particular case. An attempt was, however, made by Hon. Nsekala JA in the case of Tanga Cement Company Ltd Vs Jumanne D. Massanga and Amos A Mwalwanda Civil Application No 6 of 2011 in which, while quoting with approval the case of Mumello Vs Bank of Tanzania (2006) I E A 227 (CAT) the Hon. Justice of Appeal stated: "...What amounts to sufficient cause has not been defined. From decided cases a number of factors have to be taken into account including whether or not the application has been brought promptly, the absence of any invalid explanation for delay, lack o f diligence on the part of applicant. " But again, Hon. Mulenga, Justice of the Supreme Court (JSC) in an Ugandan case of Boney M Katatuba Vs Waheed Karim Civil Application No 27 of 2007 (unreported ) which was quoted with approval in the case of Prosper Baltazar Kileo and Another Vs Republic Criminal Application No 1 of 2010 stated interlia: "Under rule 5 of the Supreme Court Rules, the Court may for sufficient reason extend the time prescribed by the Rules. What constitutes "sufficient reason"is left for the Court's unfettered discretion. In this context the Court will accept either a reason that prevented an applicant from taking the essential steps In time, or other reason why the intended appeal should be allowed to proceed though out o f time. For example, an application that is brought promptly will be considered more sympathetically than the one that is brought after unexplained delay...But even where the application is unduly delayed the Court may grant extension if shutting out the appeal may appear to cause injustice. "[Emphasis supplied] The issue for determination by the Court is whether the applicant has shown sufficient cause for delay to warrant this Court to exercise its wide discretional powers and extend time. The applicant's main reason is that after the judgment in Land Case No. 299 of 2009 was adjourned on 10/12/2015, she was not notified of the date of its delivery; and also that the judgment was already delivered. The applicant clarified that on 10/12/2015, when the judgment was not delivered as scheduled, the clerk informed Ms. Heriet Kiwia from IMMA Advocates who, apparently represented the applicant, that the judgment would be delivered on the date to be notified. It was argued that, from that date no judgment date was fixed as the applicant was not served with any notice of judgment. On top of that the applicant was not informed that the same was delivered as she became aware of the High Court's judgment on 12/5/2015 when the respondents raised their demand note. The respondents on their part contented that the applicant was aware of the judgment date since Madina ii Chenge, according to the Ruling dated 12/5/2016, was present on 10/12/2015 when the judgment was fixed to be delivered on 23/3/2015. After having given due consideration of the rival submission, I think it may take a long way to be convinced by the applicant's argument. Though the applicant has tried to show through the affidavits that on 10/12/2015 Ms. Kiwia who represented the applicant was told that judgment would be on notice, she has not attached any affidavit of the court clerk who could have proved to have informed the advocate that judgment would be delivered on notice. She has not also attached the affidavit of Heriet Kiwia from IMMA Advocate to prove that it was her who appeared in court on 10/12/2015, instead of Ms. Madina Chenge whom according to the Ruling dated 28/10/2016, she attended in court. Moreover, Ms Chenge who denied to appear at High Court (Land Division) on 10/12/2015 while alleging to have been at High Court (Commercial Division) did not annex any summons, proceedings or cause list to prove that on that date she attended the Court at the High Court (Commercial Division) on particular case. Had the applicant done so, perhaps the information from such persons would have clarified some of the issues or proved her claims. Otherwise, it is my considered view that the applicant has not proved that allegation. 12 Of course, the applicant has not sought to account for each day of delaying but has also predicted her argument on the Illegality of the decision. Indeed, I agree that the High Court as shown at pg 7 of the typed judgment awarded an interest as to commercial rate of 21% from the date of judgment to the date of payment. The applicant argued that the interest allowable by law is 7%. She also argued that the High Court left some issues to be determined by third parties or bodies which made decision uncertain. There was no particular response by the respondents on these issues, except that they contended that the cases cited by the applicant were distinguishable. Much as most of the cases cited by the applicant discussed the illegality based on breach of the right to he heard, I think, there are other illegalities which are based on other issues. What is certain is that, there is unbroken chain of decisions in which this Court held that it is now settled that grounds alleging illegality constitute sufficient cause to warrant the Court to grant extension of time. Among them include Principal Secretary, Ministry of Defence and National Service (supra) which was cited by Mr. Nyika. Also In the case of Patrobert D. Ishengoma Vs Kahama Mining Corporation Ltd (Barrick Tanzania Bulyankulu and 2 Other Civil Application No 2 of 2013 (unreported) this Court stated thus: 13 "... I am of the considered view that even though there is a considerable delay in the application pertinent issues have been raised. Firstly, the applicant is alleging to have been denied the right to be heard by not being a party to Miscellaneous Civil Cause No 97 (supra) though he was affected by the outcome. There is an allegation o f illegality, irregularities and impropriety. There is also the reason of illness advanced by the applicant which cannot be brushed aside" Emphasis added] But again, it is noteworthy that the Court may grant extension of time even if the application is unduly delayed if shutting out the same may appear to cause injustice. (See Prosper Baltazar Kileo & Another (supra). Even in this case, it is undisputed fact that the application was delayed. However, the alleged illegalities seem to cause injustice if not addressed to by the Court. Having so digressed, I find that the applicant has been able to show a good cause to warrant an extension of time. The High Court's award of interest and the uncertain parts of the judgment require this Court's intervention so as to put a proper position of law. In consequence, the applicant is granted extension of time to lodge her notice of appeal and to file the application for leave to appeal to this Court. The applicant is to file both notice of appeal and application for leave within thirty days from the date of this Ruling. Costs are to follow the event. It is so ordered. DATED at DAR ES SALAAM this 14th day of July, 2017. R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true < '" Driginal. DEPUTY REGISTRAR COURT OF APPEAL 15