CIVIL APPLICATION NO 149 02 OF 2024 NSK OIL AND GAS LIMITED 4 OTHERS VS DIAMOND TRUST BANK TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 149/02 OF 2024 NSK OIL AND GAS LIMITED.................................................... 1st APPLICANT MAHESH B. AGGARWAL............ ........................................... 2 nd APPLICANT URMIL DEVI M. AGGARWAL................................................. 3 rd APPLICANT KAMAUET M. AGGARWAL..,................................................... 4™ APPLICANT SUNILKUMAR M. AGGARWAL....... ...................................... 5™ APPLICANT VERSUS DIAMOND TRUST BANK (TANZANIA) LIMITED ....................RESPONDENT (Application for extension of time to serve the respondent with the record and memorandum of appeal, on a decision of the High Court of Tanzania at Arusha) (Magoiga, J .) dated the 17th day of December, 2021 in Commercial Case No. 10 of 2021 RULING 21st August & 4th September, 2024 RUMANYIKA. J.A.: NSK Oil and Gas Limited and four others, the applicants are seeking an extension of time to serve the record and memorandum of appeal on the respondent. The application is supported by an affidavit sworn by Gwakisa Kakusuio Sambo who is the applicants' advocate. It is resisted by an affidavit in reply sworn by Victoria Lupembe who is one of the principal officers of the respondent bank. i In order to appreciate the background and essence of the application, the following background information shall be helpful; the applicant was aggrieved by the decision of the High Court of Tanzania ("the trial court") and sought to assail it. A record of appeal was prepared in that regard, after the applicants had sought and obtained the necessary documents in November, 2023. On 27th December, 2023 they filed the record and memorandum of appeal in the Court. However, before getting the documents back endorsed by the Registrar and serve them to the respondent, on 2nd January, 2024, the applicant's advocate Sambo was reported injured in a motorbike accident. He was admitted and remained bed ridden at Nkoaranga hospital for fourteen days. That after being discharged, still she had to attend the hospital daily as an outpatient until on 4th February, 2024. Further, it is alleged that, as he was the sole practitioner in the firm, he could not be able to collect and serve the said documents until such time when he recovered and have his duties in office resumed and on 6th February, 2024. That he collected the documents and followed up the respective medical chits which took him three days. That he prepared this application and filed it on 13th February, 2024 which was preceded by a Saturday and Sunday. For the respondent, Ms. Victoria Lupembe in her affidavit in reply averred that, the road accident alleged by the applicants' advocate lacks proof. The reasons, she argued, are; one, the appended medical chit did not state the type of medication received by the patient, if at all Mr. Sambo was injured as alleged and prevented from performing his day-to-day activities in office for such a couple of days; tw o, the date of the alleged accident materially varied from the affidavit which consistently stated that the accident occurred on 2nd January, 2024 and the medical chit which reads that, the victim Mr. Sambo was admitted on 1st January, 2024. The application was argued before me on 21st August, 2024. The applicants were represented by Mr. Dominic Mushi, learned counsel holding the briefs of Mr. Gwakisa Sambo, learned counsel without instructions to proceed. The respondent had the services of Mr. Steven Axwesso who joined forces with Mr. Deus Mworia. From the outset, Mr. Mushi prayed for an adjournment of the hearing of the application in terms of rule 38A of the Rules. To justify his prayer, he contended that, Mr. Sambo who had the conduct of the matter is indisposed for ill health being exempted from duty for seven days. He referred to the counsel's notice of absence which had been presented in Court earlier on. Mr. Axwesso sternuousiy opposed Mr. Mushi's prayer. He, interms of rule 106(12) (b) and (13) of the rules, implored the Court to treat the application as argued through Mr. Sambo's written submission earlier on filed. As they the respondent had not been served with that notice and Mr. Axwesso and fellow had travelled all the way from Dar es Salaam which is costly. In reply, Mr. Mushi, in the circumstances prayed for the Court to consider if it could proceed to a hearing of the application relying on Mr. Sambo's written submissions in the circumstances. I found it to be a fit case for hearing and proceeded as such. Mr. Axwesso began by adopting the affidavit in reply contending that, the copy of the appended treatment summary (NSK II) did not correspond well with paragraph 8 of the supporting affidavit for the four reasons; one, it defeated logic and common sense since, Mr. Sambo could not have been admitted in hospital injured on 1st January, 2024 in an accident which occured a day later on 2nd January, 2024. This, in the advocate's view is a material controversy which should not be accepted by the Court in favour of the applicant. To buttress his proposition, he cited Damas Assey & Another v. Raymond Mgunda Paula & 8 Others, Civil Application No. 32/17 of 2018, two, that, if anything, Mr. Sambo had had all the reasons to review the affidavit and rectify it before he filed it, which was not done; three, that, the authenticity of NSK II is questionable since it bore no stamp to show that, really, it originated from the said Nkoaranga hospital; and four, that, the medical chit presented by Mr. Sambo did not disclose kind of the treatment received nor did it show the doctor's recommendation to authenticate the document. Mr. Axwesso cited the Court's decision in Elisha Mang'ehe v. Nyangi Ogigo, Civil Application No. 45/08 of 2018. He stressed that, the applicant's delay was not justified since, he had not accounted for each day of the delay. Mr. Axwesso urged the Court to dismiss the application with costs. Emphasising on Mr. Axwesso's submissions, Mr. Mworia contended that, nothing material has has been presented to sufficiently support Mr. Sambo's allegations that he was injured in an accident and for that reson remained in bed being hospitalized for that while. I have given a careful thought of the arguments advanced by the learned counsel. Under rule 10 of the Rules, the Court has the power to extend time for the doing of an act only where sufficient cause to do is shown by the applicant at the Court's discretion. The issue in the instant application thus, is whether the applicant has met the necessary conditions to warrant the grant of extension of time. I am mindful of a plethora of the Court's decisions where Rule 10 of the Rules has been so tested including in Ngao Godwin Losero v. Julius Mwarabu (Civil Application 10 of 2015) [2016] TZCA 2099 (18 October 2016: TanzLII), Eiiya Anderson vs Republic (Criminal Application 2 of 2013) [2013] TZCA 296 (13 June 2013:TanzLII). 5 Moreover, in Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 we stated some factors amounting to good cause; one, that the applicant must account for each day of the delay; two, the delay should not be inordinate; three, diligence of the applicant and whether there are other reasons such as illegality of the decision sought to be challenged. Moreover, it is trite that illness of a party to case constitutes a sufficient ground. In the present application, the reason given by Mr. Sambo in his written submission for the delay is his illness of health caused by the said motorcycle accident However, the copy of a medical chit presented by him (annexed NSK-2) to the application issued on 15th January, 2024 showed that, Mr. Sambo was admitted on 1st January, 2024 while in fact the accident allegedly occurred on 2nd January, 2024. I agree with Mr. Axwesso's contention that, this averment is untruthful and practically unrealistic. Therefore, it renders the supporting affidavit ineffective thus liable to be expunged as is hereby done. Now that, there is no affidavit to support the notice of motion, the application is worthless for want of evidence. It is so because, in formal applications like this one, evidence is by affidavits and not viva voce. It is very unfortunate that, if accidental, the anomaly was not rectified at the earliest possible opportunity. Instead, Mr. Sambo maintained it in his written submission. It follows that, the alleged accident was not sufficiently established as the cause of the applicant's delay. As such, the applicant has failed to show any sufficient cause for the grant of extension of time. The application is dismissed with costs. DATED at DAR ES SALAAM this 3rd day of September, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 4th day of September, 2024 via video conference in the presence of Mr. Steven Dominic Mushi, learned counsel for the Applicants and Mworia Dennis, learned Counsel for the Respondent, is hereby certified as a true copy of the original. 7