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IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 680 OF 2016 TREASURY REGISTRAR (The Successor of the National Bank of Commerce) ----------------------------------------- APPLICANT VERSUS EPHREM BATEU KAVISHE --------------------------------- RESPONDENT RULING MUTUNGI, J. Basically at the trial Court (Resident Magistrate's Court at Kisutu), the respondent successfully sued the NATIONAL BANK OF COMMERCE (hereunder shall be referred as the bank) which is now under the Treasury Registrar (the applicant), where the bank among other things was ordered to pay the respondent Tshs. 9,000,000/=, the mortgage in dispute was declared a nullity, interest of 5% 1 from 13th December 1994 until the judgment, Tshs. 10,000,000/= as general damages and costs of the suit. This decision was delivered on 30/03/2015. On 7/10/2016 the applicant brought this application in terms of section 14 ( 1) and (2) of the Law of Limitation Act [Cap.· 89 R.E 2002] and section 95 of the Civil Procedure Code Act [Cap. 33 R.E 2002] seeking for the following prayers: (a) That this Honourable Court may be pleased to grant an extension of time within which the Applicant herein can file the notice of appeal and appeal out of time against the judgment and decree of the Resident Magistrate (at Kisutu) in Civil Case No. 42 of 1995 between Ephraim Kavishe and National Bank of Commerce (NBC) dated 30 th March, 2016 (sic). (b) Costs for this application. (c) Any other or further relief that the Court shall deem necessary to grant. 2 J... This application is supported by an affidavit sworn by Mr. David Kakwaya, Principal State Attorney 1n which according to him, in 1988 the bank issued a loan to the respondent of Tshs. 500,000/= whereby the respondent's house located on Plot No. 1 situate at Kimara within Dar es Salaam Region held under a Certificate of Title No. 35725 (hereunder shall be referred as the mortgaged house) was surrendered as collateral to secure the loan. The respondent defaulted to repay the said loan and as a result, the Consolidated Holding Corporation (CHC) established to have the powers of controlling all assets and liabilities of the Bank proceeded to sale the mortgaged house. Mr. David Kakwaya · went further by stating that, the respondent was aggrieved with the conducts of the CHC hence decided to sue the bank, and the matter was determined in the respondent's favour. However Mr. David Kakwaya stated that, at the time when the said suit was determined, all the cases which were under the CHC were transferred to the Attorney General Chambers as per the National Bank of Commerce (Reorganization and Vesting of 3 Asset and Liabilities) Amendment Act No. l O of 2007. On 14/06/20 l 6 the Attorney General, s Office became aware of the judgment by the trial court via a letter received on 09 /06/20 l 6 from the applicant. Mr. David Kakwaya went further by stating that, upon going through the entire supplied records from the applicant, they found that the judgment of the trial court was tainted with illegality on two aspects. One, the mortgaged property was considered as matrimonial assets while there was no proof of a valid marriage. Two, the trial court determined the said suit while the Attorney General was not joined as a necessary party. Thus, the applicant has preferred to file the instant application herein. In reply, the respondent through his counter affidavit strongly objected this application and placed the applicant to strict proof of what were stated in the affidavit. Mr. Mujabuso Luguwa advocating for the respondent insisted that, the application is misconceived since the law does not require the applicant to file o notice of appeal against the decision of the trial court. 4 On 8/6/2017 when this application was called for hearing, Haroun Matagane, Senior State Attorney and Mujabuso appeared for the applicant and respondent respectively. Mr. Haroun Matagane, learned Senior State Attorney submitting in support of this application submitted that, the trial court's judgment was tainted with illegality since there was no proof as to whether there was a valid marriage, but still the court ruled that, the mortgaged property was a matrimonial asset. According to him illegality is a sufficient ground for the court to allow this application. In order to support his averment he cited and supplied the cases of KASHINDE MACHIBYA VERSUS HAFIDHI SAID CIVIL APPLICATION NO. 48 OF 2009 (CAT-DSM) (UNREPORTED) and PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE V. DEVRAM VALAMBIA [1992] T.L.R 182. The Senior State Attorney went further by submitting that, the office of the Attorney General became aware of the disputed decision on 06/06/201 6 via a letter from the applicant. Considering the fact that, the bank had already 5 1 been bankrupt then all of its assets and liabilities were put under the CHC which was established under Cop 404/ 2002. Further, there was no amendment of the pleading to include the· CHC which lotter did not exist ofter the applicant toking over that position. Thus, Mr. Haroun prayed this court to allow this application. Mr. Mujobuso' s submissions in reply argued that, firstly; there is no notice requirement for on appeal from the trial court to this court. The cited provisions of the low do not relate to notice. Thus this court hos no jurisdiction to grant this application. Secondly; the applicant in their affidavit hove referred to the trial court's judgment delivered on 30/03/201 6, while the actual decision was delivered on 30/03/2015, on the some footing, the applicant hos referred to a non-existing decision by the trial court. Despite pointing out the above discrepancies, Mr. Mujobuso hos attacked this application by submitting that, the applicant hos not advanced sufficient grounds in support of this application. It is a naked truth that, at the time when the suit was determined, the applicant was not 6 supposed to be included in the suit. He went further by submitting that, the allegation that there was no proof of a marriage cannot be termed as an illegality instead the court con only determine it upon going through the evidence and proceedings. Thus in general, Mr. Mujombaso prayed this application be dismissed with costs. In his rejoinder Mr. Haroun insisted that, this court hos jurisdiction to entertain this application as per the cited provisions in this application. Regarding the different dates as alleged by Mr. Mujombaso, Mr. Haroun suggested that this was a slip of the pen. Moreover, Mr. Haroun submitted that, this application be allowed in order for the alleged illegalities be cleared and ironed out. At this juncture the issue is whether this application hos merits or not. Basically, in determining this issue, my duty now is to asses on whether the applicant has advanced sufficient reasons or not in supporting this application. See; PARIN JAFFER AND ANOTHER VERSUS ABDULRASUL AHMED JAFFER AND 2 OTHERS [1996] T.L.R 110 and M.A SULEIMAN & SONS LTD AND 2 OTHERS VERSUS THE REGISTERED TRUSTEES OF 7 ANGLICAN CHURCH TANZANIA, CIVIL APPLICATION NO. 93 OF 2016 (CAT-DSM) (UNREPORTED). I hove gone through the entire court record as well as the submissions from both parties, and observed, it is not disputed at all that the applicant who hos stepped in the shoes of the former defendant (in the trial court) is coming before this court hopelessly out of the appeal time. The law requires that, once a party is late to file an appeal is to seek for on extension of time first before going through the window of appeal. The applicant as already stated inter alia in the ruling is relying on the fact that, the trial court had determined the issue of the mortgaged house as a matrimonial property with no proof and the applicant was never made a party in the said suit by being impleaded through on amendment. In principal, the applicant was alleging illegality in the trial court's judgment. In view of the foregoing, it is trite law that where there is on illegality of the decision being challenged, then that amounts to sufficient ground for extension of time. 8 This principle was underscored in one of the most cited case of PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE V. DEVRAM VALAMBIA (supra). Further, if the matter is token up on appeal, things will be put right as to whether in the given circumstances of the case (change of status) which is revealed that, CHC, the applicant and the former NBC hove in one way of the other been parties in this suit and whether a judgment written by Koluyendo, RM on 30/05/2015 is tainted with illegality ofter it was ordered that, the trial court's judgment delivered on 12/11/2007 (Mwondoyo RM) was erroneous by this court (Hon. Mworijo, J as he then was) and whether the parties hod originally beentherespondentve~usNBC. The court is cautious of the fact that, it should restrain itself from considering substantive issues to be dealt with at the appeal stage. It suffices at this point to state that, there is on issue of illegality raised in this application to warrant the court to grant the extension sought. On the some line of reasoning, the court is satisfied that the applicant hos advanced sufficient reasons. Hoving found as 9