ECO Bank Tanzania Limited & Another vs Sikudhani Rajabu @ Sikudhani Abdalla Mshana & Others (Civil Application No. 1025 of 2024) [2025] TZCA 1207 (21 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1025 OF 2024 ECO BANK TANZANIA LIMITED ..... . ..................................... 1 st APPLICANT ALBERT GASPER MSANDO ................. . ................................. 2 nd APPLICANT JOSEPH NUWAMANYA......................................................... 3 rd APPLICANT VERSUS SIKUDHANI RAJABU @ SIKUDHANI ABDALLAH MSHANA ................. ......................................... 1 st RESPONDENT SHANA GENERAL STORE LIMITED .................. . ....................2 nd RESPONDENT SIKUDHANI ABDALLAH MSHANA and HUSSEIN ABDALLAH MSHANA (as joint administrators of the estate of the late ABDALLAH IDD MSHANA)................... . ........ 3 rd RESPONDENT (Arising from the Judgment and Decree of the High Court of Tanzania at Moshi) (Mkapa,J.) dated the 18th day of February, 2021 in Land Case No. 07 of 2018 RULING 7th & 21st November, 2025 MLACHA J.A.: The applicants, ECO Bank Tanzania Limited, Albert Gasper Msando And Joseph Nuwamanya (the first, second and third respondents, respectively) filed an application under section 11(1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 (now section 14 of Cap 141 R.E. 2023) and Rules 10 and 45 A (1) (a) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking extension of time within which to lodge a notice of appeal against the decision of the High Court of Tanzania at Moshi (the High i Court) made in Land Case No. 7 of 2018. Tine respondents, Sikudhani Rajabu @ Sikudhani Abdalah Mshana, Shana General Store Limited and Sikudhani Abdallah Mshana and Hussein Abdalah Mshana (Joint administrators of the estate of late Abdallah Idd Mshana) (the first, second and third respondents, respectively) are resisting the application. Briefly stated, the facts leading to the filing of this application can be presented as follows. The first respondent filed Land Case No. 7 of 2018 against the applicants, the second respondent and Abdallah Iddi Mshana (deceased) at the High Court of Tanzania at Moshi. The case was decided in favour of the first respondent. The applicants were aggrieved by the decision and lodged a notice of appeal and a letter to the registrar requesting for certified copies of proceedings. Civil Appeal No. 472 of 2022 was filed later challenging the decision of the High Court. The appeal was struck out on failure to serve appeal documents to the first respondent as per the law. The applicants could not file another appeal because they were already out of time. They filed an application for extension of time to lodge a notice of appeal (the first application) at the High Court. It was struck out. They filed another application (the second application) which was dismissed, hence the application before the Court, (the second bite application). The grounds appearing in the chamber summons can be reduced to two grounds and be paraphrased to read as under: 1 . That, the applicant had litigations in court in the period hence the delay was technical, not real. 2. That, the judgment of the High Court has an apparent illegality. When the application was called for hearing, Mr. Wilbard Masawe, learned advocate, appeared for the applicants, whereas Messrs. Audax Wedasto, Martin Kilasara and Ombeni Kimaro appeared for the first, second and third respondents, respectively. On taking the floor, Mr. Masawe adopted the contents of the affidavit supporting the application and the written submissions and had nothing to add. The submissions have an extensively discussion on technical delay and illegality of the decision of the High Court. It was submitted that, there is a gap of 1,531 days from the time when the notice of appeal was supposed to be lodged to the date when this application was lodged but the applicants were in court fighting for their rights. That, in between there was Civil Appeal No. 472 of 2022 which was struck out and the two applications for extension of time which were lodged at the High Court. That, the applicants did not sit idle at home but were in court, in all the days, fighting for their rights. He cited our decisions in Fortunatus Masha v. William Shija and Another [1997] TZCA 144 and Bharya Engineering & Contracting Co Ltd v. Hamoud Ahmad Nassoro, [2018] TZCA 339 to support the contention that where the applicant was in court fighting for his right genuinely, the time spent must be excluded in calculating the period of delay under the principle of technical delay. On illegality of the decision of the High Court, the Court was invited to took at its decision in Hassan Abdulhamid v. Erasto Eliphase [2020] TZCA 49 where it was stated that, "a claim of illegality o f the challenged decision constitutes sufficient cause for the extension o f time regardless o f whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay, " Further reference was made to our decision in Principal Secretary, Ministry of Defence and National Service v. Devram Valambia [1992] TZCA 91 on the same principle. With this in mind, the Court was invited to examine the trial judge's interpretation of section 118 (1) of the Land Act, R.E. 2023 on spouse consent to mortgages. That, the judgement erroneously limited the requirements to consent forms and documents which constitutes a clear illegality on the face of the judgment. Further, the trial Judge raised the question of forgery, which was not pleaded, and based the judgment on it. Based on those reasons, the Counsel for the applicants urged me to grant an order for extension of time. Making reference to the case of Fortunatus Masha v. William Shija and Another (supra), Mr. Vedasto contended that, for the principle of technical delay to apply two conditions must be met; one, the first appeal must have been filed within time. He contended that the first appeal was not lodged in time. Two, that, the parties in the two cases must be the same. He contended that the third respondents were not parties in the appeal but one Abdallah Iddi Mshana. When probed on the status of Abdallah Iddi Mshana, he admitted that he is dead and is now represented by the third respondents as his legal personal representative but harried to say that, Abdalah died even before the first appeal was filed. He cited our decisions in John M. Litondo, Hanna M. Litondo and Fred P. Salauke (Legal Representatives of the Estate of the late Amina Litondo) v. Fatuma Amri Masika (as Legal Representative of the Estate of the late Zaituni Amri Masike) [2024] 7ZCA 977, Dr. Naomi Vuhavula Mpemba and Filipo Erasto Mpemba (as administrators of the Estate of the late Erasto Bathalomeo Mpemba) and Another v. Halifax Investment (T) Ltd and Seven Others [2024] TZCA 683 and the Registered Trustees of St. Anita's Greenland School (T) and six others v. Azania Bank Limited [2022] TZCA 334 to support his contention that it was not proper to file the first appeal in the name of Abdalah Iddi Mshana white he was already dead at the time when the appeal was lodged. He did not find any illegality in the decision of the High Court. He supported the interpretation of section 118 (1) of the Land Act given by the trial Judge. Mr. Kilasara adopted the contents of the affidavit in reply of the second respondent and had nothing to add. Mr. Kimaro adopted the contents of the affidavit in reply of the third respondents and later associated himself with the submission of Mr. Vedasto on technical delay as a base on which time can be granted. He contended that, since the first appeal was not filed in time, the principle of technical delay cannot apply. On the requirement of parties in the two cases to be the same, he submitted that, the third respondents are parties in this application but they were not parties in the land case and the appeal. He contended that, a wrong interpretation of the law does not amount to an illegality so long as the court had jurisdiction to do what it did. He added that the applicants failed to account for each day of delay making the application incompetent. In rejoinder, while reiterating to his earlier submissions, Mr. Masawe submitted that, the Court has been flexible and very accommodative in applications of this nature. He urged me to exercise the discretion of the Court in favour of the applicants in the great interest of justice. On the inclusion of the third respondents in this appeal he submitted that they had been impleaded after being appointed administrators of the estate of the late Abdallah Iddi Mshana. I have examined the record and considered the submissions made by the parties carefully. The principles upon which time can be extended have been well explained by the parties in their submissions and I need not restate them. They include the existence of technical delay and illegality of the impugned decision upon which this application is based. The issue is whether the applicants have managed to establish the two principles. I will start with technical delay. As intimated by the parties in their respective submissions, technical delay has two conditions; one, the first appeal must be lodged in time and two, the parties in the appeal and the application must be the same. I will start with the contention that the first appeal was not filed out of time. This contention is based on the decision of this Court made in Fortunatus Masha v. Williamu Shija and Another (supra) where it was stated: "... a distinction should be made between cases involving real or actual delays and those, like the present one, which only involves what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted.’' [Emphasis added] It calls for an examination of the record and rule 90 (1) of the Rules which provides as under: "Subject to the provisions ofrule 128\ an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged with - a) A memorandum of appeal in quintuplicate; b)7he record of appeal in quintuplicate; c) Security for the costs of the appeal, Save that where an application for a copy of the proceedings in the High Court has been made within thirty days o f the date of the decision against which it is desired to appeal\ there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant" [Emphasis added] s The record show that the judgment of the High Court was delivered on 18/2/2021. The notice of appeal was lodged on 15/3/2021 meaning that the appeal was supposed to be lodged on or before 15/5/2021. But there is a certificate a delay excluding the dates from 12/3/2021 to 9/5/2022 making the appeal which was lodged on 8/7/2022 to be within the 60 days provided under rule 90 (1) of the Rules. The first appeal was therefore filed within time making the complaint that it was filed out of time baseless. The complaint in the second limb is that, the parties in the present application and the first appeal are not the same. The record reveals that, the third defendant in Land Case No. 7 of 2018 was Abdallah Iddi Mshana. His name is also reflected in Civil Appeal No. 472 of 2022. The name is not seen in the present application. Instead of Abdallah Iddi Mshana, the third respondent is Sikudhani Abdallah Mshana and Hussein Abdallah Mshana (as joint administrators of the estate of the late Abdallah Iddi Mshana). I think that this was necessitated by the fact that Abdallah Iddi Mshana had died at the time when the present application was filed. There was thus no change of names of the parties. This makes the complaint that parties are diferent baseless. It follows that, the applicants are protected under the principle of technical delay which can be used as a base for extending time. That said and done, a discussion on illegality of the decision may not be of any use save for academic purposes which is left for the future. I accordingly, grant the application and give an extension of 60 days within which to file of a notice of appeal against the decision of the High Court made in Land Case No. 7 of 2018. Costs to follow the event. DATED at DODOMA this 20th day of November, 2025. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 21s t day of November, 2025 in the presence of Mr. Wilbard Massawe, learned counsel for the Applicants, Mr. Joseph Rugambwa, learned counsel for the 1s t Respondent, Mr. Martin Kalasara, learned counsel for the 2n d Respondent and Mr. Ombeni Kimaro, learned counsel for the 3r d Respondent via virtual Court and Ms. Glory Masige, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10