quality group limited v eastern and southern africa trade and development bank ta trade and development bank 2022 tzhccomd 58 11 march 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. CIVIL APPLICATION N0.03 OF 2022 QUALITY GROUP LIMITED................................................APPLICANT VERSUS EASTERN AND SOUTHERN AFRICA TRADE AND DEVELOPMENT BANK t/a TRADE AND DEVELOPMENT BANK.......................... RESPONDENT Date of Last Order: 09/02/2021 Date of Ruling: 11/03/2022 RULING MAGOIGA, J Under certificate of urgency, the APPLICANT herein above preferred this application against the above named respondent by of chamber summons under the provisions of section 14(1) of the Law of Limitation Act, [Cap 89 R.E. 2019] and section 95 of the Civil Procedure Code, [Cap 33 R.E.2019] praying that this court be pleased to grant the following orders, namely: 1. An order extending time for the applicant to file an application to set aside Judgement in Commercial Case No. 174 of 2018; 2. Costs of this application; 3. Any other relief this court will deem just and fit to grant. The chamber summons was as usual accompanied by affidavit deposed by Mr. Eliya Rioba, learned advocate for the applicant stating the reasons why this application should be granted. Upon being served with the chamber summons and accompanied affidavit, the respondent, through Mr. Pladius Mwombeki, learned advocate for the respondent filed a counter affidavit stating the reasons why this application should not be granted. The facts pertaining to the background of this application are simple and straightforward. The applicant under third party mortgage dully registered issued in favour of the respondent created security over plot No 25 Pugu Road Dar es Salaamcity registered under Certificate of Title No.186081/42 for credit facility extended to Quality Extended Enterprise Limited. Quality Extended Enterprises Limited defaulted in repaying the loan as agreed. In the circumstances, the respondent under summary procedure instituted Commercial Case No. 174 of 2018 against the applicant. Efforts by the applicant to obtain leave to defend the summary suit, was in vain. As such the court proceeded to deliver its judgement on 1st August, 2019. 2 Against the above background, the applicant has preferred this application for extension of time to allow the applicant to file an application to set aside Judgement in Commercial Case No.174 of 2018, hence, this ruling. Mr. Rioba main argument is that much as the whole suit was aimed at placing the disputed property to third parties, namely David Tarimo and Nelson Msuya is illegal. According to Mr. Rioba, this being a point of law suffices to grant an extension of time regardless of the time elapsed ever since the decision was given on 1st August 2019. His argument were that by the provisions of Order XXV Rule 1 (c) (ii) of the CPC, the delivery of the mortgaged property, if any, was to be delivered to the mortgagee and not third parties which was the case here and as such concluded that it offended the provision of the said Rule and is good ground for extending time. In support of the his argument where illegality is proved cited the cases of PRINCIPAL SECRETARY OF DEFENCE AND NATIONAL SERVICES vs. DEVRAM VALAMBIA [1992] TLR 185, JEREMIA MUGONYA EYEMBE vs. HAMIS SELEMAN, MISC. CIVIL APPLICATION NO.44 OF 2019 (UNREPORTED). On the other hand of the respondent, Mr. Mwombeki focused and brief to the point argued in rebuttal that no illegality has been established as the third parties were to take possession for and on behalf of the mortgagee who is the plaintiff. According to Mr. Mwombeki, Rule 1 (c) (ii) of Order XXXV of the CPC was not offended nor abrogated by what Mr. Rioba is trying to argue because even parties' relationship emanates from third party mortgage and as such concluded that no illegality in the situation we have here. Mr. Mwombeki pointed out that the cases cited are distinguishable for were dealing with difference circumstances and no illegality was occasioned at all. As to the accounting of each day of delay before grant for extension, Mr. Mwombeki pointed out that up to the time of institution of this application more than 769 days have elapsed and no single paragraph or oral submission was made to account for each day of delay. On that note prayed and urged this court to dismiss this application with costs. The main contention for and against this application, which this court is due to determine upon hearing the rivaling arguments is, 'whether there is illegality in the decision of the court in Commercial Case No. 174 of 2019.' Much as agree with the arguments by Mr. Rioba and the holdings in case laws cited that, once illegality is proved in the decision, the court is enjoined to extend time to correct the illegality despite lapse of time, but with due respect to him, I don't agree with him that placing the mortgaged property by itself to Mr. David Tarimo and Nelson Msuya was illegal at all. The reasons I am taking this stance are abound. One, the mortgagee who, Mr. Rioba argues was the one to take possession was the plaintiff in this case and the two individuals were chosen by the mortgagee of which on daily basis operates through natural persons. I find this not illegality at all. Two, Mr. Rioba apart from the decisions which I have no problem but has utterly failed to cite any provision which was abrogated by the plaintiff/mortgagee asking the court to place the possession of the property under those individuals. Truly, I find Mr. Rioba's arguments are based on technicality rather than on the interest of justice which this court cannot take. Three, the argument and deposition by the applicant at paragraph 8 that she was not aware of the Commercial case No. 174 of 2018 are not true because the applicant made an application for leave to defend main suit vide Misc. Application No. 20 of 2019 which was argued but denied by this court, thus, making his arguments that he was not aware is unfounded and not supported by the record. Much as the applicant was aware and participated in those proceedings it cannot be heard to say now that the applicant was not aware of the existence of the Commercial Case No. 174 of 2018 as A deposed in paragraph 8 in the affidavit. 1 5 In the foregoing and without much ado, I find this application misconceived and is devoid of any useful merits. That said and done, this application must be and is hereby dismissed for the reasons given above with costs. It is so ordered. Dated at Dar es Salaam this 11th day of March, 2022. S. M. MAGOIGA JUDGE 11/03/2022 6