NSK Oil & Gas Limited & Others vs Diamond Trust Bank (Tanzania) Limited (Civil Reference No. 17 of 2024) [2025] TZCA 1230 (28 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA, J.A., FIKIRINI. J.A. And MGEYEKWA. J.A.) CIVIL REFERENCE NO. 17 OF 2024 NSK OIL AND GAS LIMITED..................................................isr APPLICANT MAHESH B. AGGARWAL ....................................................... 2N DAPPLICANT UMRIL DEVI M. AGGRAWAL.................................................3 rd APPLICANT KAMALJET M. AGGARWAL....................................................4 th APPLICANT SUNILLKUMAL M. AGGARWAL.............................................5 th APPLICANT VERSUS DIAMOND TRUST BANK (TANZANIA) LIMITED ..................... RESPONDENT (Application for Reference from the Ruling and Order of the Court of Appeal of Tanzania at Arusha) (Rumanyika. J.A) dated the 4thSeptember, 2024 in Civil Application No. 149/02 of 2024 RULING OF THE COURT 10th & 28th November, 2025 MGEYEKWA. J.A.: This is an application for reference against the Ruling of a single Justice, dated 4th September, 2024 in Civil Application No. 149/02 of 2024 in which he declined to grant the applicants' application for extension of time within which to serve the respondent with a memorandum and record i of appeal. The application is initiated by a letter of Mr. Daniel Sambo, learned counsel for the applicants dated 9th September, 2024 as prescribed by rule 62 (1) (b) and (2) of the Tanzania Court of Appeal Rules, 2009, GN No. 368 of 2009 (the Rules). To appreciate the gist of this application, we find it apposite to narrate a brief background leading to it. The applicants unsuccessfully lodged a case before the High Court Commercial Division at Arusha against the respondent. Aggrieved, the appellants appealed to the Court. The applicants duly prepared the record of appeal together with the requisite documents, which were lodged in Court in December 2023. However, before effecting service of the record and memorandum of appeal upon the respondent, it was reported that Mr. Gwakisa Sambo, learned counsel for the applicants, was involved in a motorbike accident on 2n d January 2024. It is further alleged that Mr. Sambo was thereafter admitted at Nkoaranga Hospital for a period of fourteen days and was discharged on 4th February, 2024. Following the said accident, Mr. Sambo avers that he was unable to effect service of the documents upon the respondent until 6th February, 2024 when he resumed his office duties. On 12th February, 2024 he prepared the application for extension of time and filed it on the same day. Before the single Justice, the applicants advanced a single ground in support of their application for extension of time, that their learned counsel had fallen ill following the accident, and a medical chit was attached as evidence. In response to the foregoing, the learned counsel for the respondent opposed the application via an affidavit in reply sworn by Ms. Victoria Lupembe, a Principal Officer of the Bank, averring that the alleged accident lacked proof because the medical chit bears a different date from the date stated in the applicant's supporting affidavit. She averred that the applicants had failed to demonstrate sufficient cause to move the Court to grant extension of time to serve the respondent with a copy of the memorandum of appeal. Having examined the notice of motion and affidavits on record in the light of the contending submissions of the parties, the learned single Justice was satisfied that the application had no merit, hence, he dismissed it with costs. The present application is thus predicated upon the Court's aforesaid decision. As indicated in the Notice of Motion, the application is founded on the following six paraphrased grounds of reference:- i) That, the Honorable single Justice erred in law and in fact by denying the applicants right to be heard and make a rejoinder, and hence arrived at an erroneous and unfounded decision. ii) That, the Honorable single Justice erred in law and in fact by failure to properly construe Rule 106(12) (b) and (13) o f the Court of Appeal Rules, 2009, hence ended in an erroneous and unfounded decision o f allowing the application to proceed. iii) That, the Honorable single Justice o f Appeal erred in law and in fact in expunging from the records the properly and timely filed affidavit in support o f notice o f motion,. iv) That, the Honorable single Justice erred in law and in fact by failure to appreciate topographical error/ key board mistake on the date o f the accident and that o f the medical chit. v) That, the Honorable single Justice erred in law and in fact as he did not at all consider all that was submitted in our written submissions. vi) That, the Honorable single Justice erred in law and in fact by denying the applicants their constitutional right to make a rejoinder. vii) That, the single Justice erred in law and in fact to establish and holding that, the applicants have not advanced sufficient reasons for extension o f time, while the applicants have discharged the said obligations as required by the law. During the hearing of this reference, the applicants were represented by Mr. Gwakisa Sambo, learned counsel while the respondent had the legal services of Mr. Denis Mworia, learned counsel. When Mr. Sambo was given the floor to elaborate on the application, he elected to argue the first and second grounds of the application conjointly. He took issue with the decision of the learned single Justice for declining to afford the applicants the opportunity to file a rejoinder. He submitted that, while he is alive to the provisions of rule 106 (12) of the Rules, 2009, which empowers the Court to proceed on the basis of written submissions where parties fail to appear, the circumstances of the present matter warranted an adjournment, there being a valid reason for doing so. It was his firm contention that the applicants were denied the right to be heard as guaranteed under Article 13 (6), (a) of the Constitution of the United Republic of Tanzania, 1977. In elaboration, the learned counsel submitted that he was indisposed and had duly placed before the Court a medical chit evidencing the said illness. In relation to the third and fourth grounds, Mr. Sambo faulted the learned single Justice for holding that the applicants' supporting affidavit contained falsehood. He argued that what appeared therein was merely a typographical error, not an untruth. The applicants had deponed that he was sick and annexed the relevant medical chit, but through inadvertence, the affidavit reflected the date 1s t January instead of 2n d February. In his view, had the learned single Justice read the affidavit in its entirety, he would have appreciated that the discrepancy was purely clerical. Hence, it was improper to brand the affidavit as untruthful. The learned counsel for the applicants combined and argued the fifth and seventh grounds, wherein the applicant faulted the single Justice for failing to hold that illness constituted a valid ground for extension of time. Mr. Sambo submitted that the delay had been occasioned by the applicants' illness, a fact, he maintained, that was duly supported by the annexed medical chit. He further contended that the days of delay were clearly computed and reflected in the supporting affidavit. In the circumstances, he argued, it was unjust for the learned single Justice to expunge the affidavit from the record. When prompted by the Court to clarify on the circumstances under which an affidavit may be expunged, Mr. Sambo asserted that only a defective affidavit may suffer that fate, not one merely alleged to contain falsehoods. On that basis, he argued that the discretion exercised by the learned single Justice was not judiciously invoked. When further probed on the issue of the denial of a rejoinder, Mr. Sambo explained that his rejoinder was intended to clarify on the alleged errors in the affidavit as well as the matters relating to the medical chit raised in the respondent's submissions. He therefore stressed that he was entitled to be heard in rejoinder. On the adversary side, Mr. Mworia strenuously resisted the application. He elected to combine the first, second, and sixth grounds and argued them jointly. The learned counsel for the respondent acknowledged his awareness of rule 106 (12) of the Rules and pointed out that, in the present matter, both parties had already filed their written submissions on the application before the learned single Justice. He argued that it was therefore proper for the single Justice to consider those submissions and proceed to craft a ruling. Consequently, he maintained that the applicants' grievances were a mere afterthought To fortify his stance, he cited the decisions in Impresa DI Construzioni Ing. E. Mantovani v. D.B. Shapriya & Co. Ltd., Civil Application No. 471/41 of 2022 [2023] TZCA 17750, and Trade Union Congress of Tanzania (TUKTA) v. Engineering System Consultants Ltd. & Others, Civil Appeal No. 51 of 2016 [2020] TZCA 251, submitting that the learned single Justice acted within his powers. With respect to the third and fourth grounds, Mr. Moria contended that the supporting affidavit clearly indicated that the applicants' counsel was hospitalized on 1s t January, whereas the annexed medical chit was dated 1s t February. He therefore contended that the learned single Justice rightly concluded that the affidavit lacked evidentiary support. To reinforce his argument, he cited the case of Ignazio Messina v. Willow Investment SPRL, Civil Application No. 471/01 of 2022 (unreported). Upon being queried by the Court, however, he conceded that while the single Justice may not have been correct to expunge the affidavit, he was nonetheless justified in disregarding its contents as unreliable. Arguing the fifth and seventh grounds, Mr. Moria insisted that, because the supporting affidavit contained falsehood, it was clear that the applicants and their counsel had not demonstrated sufficient cause for an extension of time. He therefore urged that these grounds were entirely without merit and ought to be dismissed as well. In rejoinder, Mr. Sambo reiterated his earlier submissions, arguing that the so-called falsehood in the affidavit was no more than a typographical error. He distinguished the authorities relied upon by the respondent, and contended that the case of Impresa DI Construzioni Ing. E. Mantovani (supra) involved entirely different factual circumstances, and the Trade Union Congress of Tanzania (TUKTA) (supra) concerned deliberate falsehoods, not inadvertent clerical errors as in the present matter. On the strength of the foregoing submissions, the learned counsel for the applicants implored the Court to allow the application. We have considered the rival submissions by the learned counsel for the parties, the record of the proceedings, and the authorities cited. The issues arising for our determination correspond with the seven grounds raised in the reference. However, for convenience, we shall address them in the manner grouped and argued by the respondent's learned counsel. Before considering the matter before us, we find it appropriate to state that the exercise of discretion by a single Justice under rule 10 of the Rules can rarely be interfered with. The Court can only interfere with such exercise where there is a good cause, such as the single Justice taking into account irrelevant factors and matters. The guiding principles for determining whether to interfere with the decision of a single Justice have been clearly articulated by the Court in its prior decisions, notably in Daudi Haga v. Jenitha Abdon Machafu, Civil Reference No. 01 of 2000 [2002] TZCA 56 and Amada Batenga v. Francis Kataya, Civil Reference No. 01 of 2006 (unreported). These same principles were referenced in G.A.B Swale v. Tanzania Zambia Railways Authority, Civil Reference No. 05 of 2011 [2016] TZCA 863. In the latter decision, the Court, having revisited its previous decisions on reference, summarized the principles upon which the Court can interfere with a decision of a single Justice or not in terms of rule 62 (1) (b) of the Rules and restated as follows:- "a) On a reference , the full Court looks at the facts and submissions the basis o f which the single Justice made the decision. b) No new facts or evidence can be given by any party without prior leave o f the Court; and c) The single Justice discretion is wide, unfettered and flexible; it can only be interfered with if there is a misinterpretation o f the law." Beginning with the first, second and sixth grounds, Mr. Sambo has assailed the single Justice's decision that the applicants were not afforded the right to rejoin. It is not in dispute that both parties had duly filed their written submissions in accordance with rule 106 (1) of the Rules. Equally 10 undisputed is that the learned single Justice relied on rule 106 (12) of the Rules, which expressly empowers the Court to determine a matter on the basis of the written submissions filed, notwithstanding the absence of appearance by the parties. It is our view that, once parties have placed before the Court their respective written submissions, the hearing of the application is complete, and there is no automatic right to an oral rejoinder unless the party concerned is present in court at the hearing. The applicants' contention that the learned single Justice ought to have adjourned the matter due to his illness, does not fall within the scope of the rule. The record bears out that Mr. Moria was holding brief for Mr. Sambo, but he had no clear instructions to proceed with the hearing. Since neither the applicants nor their learned counsel appeared, rule 106 (12) of the Rules makes it plain that where a party fails to appear, the party present may proceed, and the absent party forfeits the right of oral argument and rejoinder. In the present application, the single Justice, being satisfied that neither the applicants nor their counsel appeared, but noting that their counsel had filed written submissions in terms of rule 106 (12) of the Rules, proceeded with the hearing in their absence on the basis of those written li submissions. Faced with a similar situation in Union Congress of Tanzania (supra), we held that:- "However, we noted that there were written submissions that had been filed by both sides as per rule 106 (12) of the Rules. Under that rule, where one or both parties do not appear but written submissions have been filed, hearing of an appeal and consideration thereof my proceed on the basis of those written submissions ..." See also Impresa DI Construzioni Ing. E. Mantovani (supra) and Jutoram Kabelle Mahalla v. Vocational Education Training Authority, Civil Appeal No. 63 of 2019 [2022] TZCA 836. In the circumstances, we are of the view that the single Justice was entirely correct to proceed with the hearing on the basis of the applicants' counsel's written submissions. Consequently, these grounds are devoid of merit and are hereby dismissed. Turning to the third and fourth grounds, we have revisited the impugned affidavit and the accompanying medical chit, it is evident that there was indeed a discrepancy between the dates stated therein 1s t January appearing in the affidavit and 1s t February appearing in the annexure. The learned single Justice took this inconsistency as indicative 12 of falsehood. With due respect, we agree with the respondent's counsel that the learned single Justice was justified to doubt the reliability of the affidavit in so far as it bore internal inconsistencies. However, we share the counsel's concession that it was not correct to expunge the affidavit altogether. The proper course should have been to disregard the inconsistent paragraphs and evaluate the remainder for what evidentiary value, if any, it could bear. In Damas Assesy & Another v. Raymond Mgonda Paula & Others, Civil Application No.32/17 of 2018 [2019] TZCA 648, we made corresponding remarks when we affirmed our earlier decision in Ignazio Messina v. Willow Investments SPRL (supra), we held that: "An affidavit which is tainted with untruths is no affidavit at aii and cannot be relied upon to support an application. False evidence cannot be acted upon to resolve any issue." In the premises, while we find that the learned single Justice erred in expunging the affidavit, that misstep does not amount to a miscarriage of justice. The inconsistency on a material fact, namely the date of illness, undermined the veracity of the applicants' explanation for delay. The affidavit could not, therefore, be relied upon to establish sufficient cause 13 under rule 10 of the Rules. Accordingly, the third and fourth grounds fail on substance, though the Court takes note of the procedural error in expunging the affidavit. On the fifth and seventh grounds, the remaining grounds centre on whether the applicants demonstrated sufficient cause for the delay in lodging their application for extension of time. The applicants'justification rested solely on his alleged illness, supported by the impugned affidavit and medical chit. Having already found that the affidavit was unreliable due to the date discrepancy, we are constrained to hold that the applicants failed to establish the factual basis for his illness as the cause of delay. The law is settled that a defective or unreliable affidavit cannot form a valid foundation for judicial discretion to extend time. See Ignazio Messina v. Willow Investment SPRL (supra). Thus, we are satisfied that the applicants did not meet the threshold of sufficient cause as contemplated under rule 10 of the Rules. Consequently, the fifth and seventh grounds are equally without merit. In the final analysis, save for our observation that the learned single Justice erred in expunging rather than disregarding the impugned supporting affidavit, it is our settled view that the single Justice, judiciously 14 exercised his discretion not to grant extension of time. Thus, this application stands dismissed with costs. It is so ordered. DATED at DAR ES SALAAM this 27th day of November, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P . S. FIKIRINI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 28th day of November, 2025 via vitual Court in the presence of Mr. Gwakisa Sambo, learned counsel for the Appellant, Mr. Dennis Mworia, learned Counsel for the Respondent and Janekisa Bukuku, Court Clerk is hereby certified as a true copy of the original.