NMB Bank PLC vs Nerly Jeremiah Mwaikatale & Others (Civil Appeal No. 741 of 2023) [2025] TZCA 1195 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, J.A., RUMANYIKA. J.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 741 OF 2023 NMB BANK P L C ............................................................ . ...............APPELLANT VERSUS NERLY JEREMIAH MWAIKATALE......................................... 1 st RESPONDENT MWAFRICA GROUP LIMITED............................................ 2 nd RESPONDENT (Appeal from the ruling of the High Court of Tanzania, Land Division at Dar es Salaam) (Luvanda, J.^ dated the 12th day of July, 2023 in Miscellaneous Land Application No. 201 of 2023 JUDGMENT OF THE COURT 7th & 14th November, 2025 ISMAIL, 3.A.: The instant appeal traces its origin from the sale of a landed property (the property), a house standing on Plot No. 99, situated in Mapinga, Bagamoyo, in Coast Region. The property was sold to the 1st respondent, at the behest of the appellant, through a public auction conducted on 2n d July, 2012. The auction was conducted by the 2n d respondent and money that changed hands as the purchase price was TZS. 30,000,000.00. Subsequent thereto, a certificate of sale was issued to the 1st respondent. i For reasons that the 1st respondent considered as negligent conduct on the appellant's part, vacant possession of the said property was not delivered. Perturbed by the procrastination that lasted for six years, the 1st respondent resorted to a legal action that saw him institute Land Application No. 93 of 2019, wherein several reliefs were sought. Of immense interest and what became a singular bone of contention in the subsequent proceedings, the instant appeal inclusive, was the prayer for interest on the purchase price as a result of the continued stranglehold of the property by a stranger whose presence was blamed on the appellant. Such interest, pegged to the commercial rate which was 25% at the time, was to cover the period between the date on which the proceedings were instituted to the date of the decision. The District Land and Housing Tribunal (DLHT) for Coast Region at Kibaha, before which the dispute was preferred, handed victory to the 1st respondent. It ordered, in consequence, that, the sum constituting the purchase price (consideration) be refunded. There was also an order for payment of interest on the principal sum at the rate of 25%. Starkly, the DLHT ordered that such interest should cover the period between 2n d July, 2012, when the sale was carried out, to 13th December, 2022, the date on which the judgment was pronounced. 2 While the DLHT's decision was, at least on the aspect of interest, irksome to the appellant and an appeal was an option on the table, the said appellant dawdled along as time prescription caught up with her, necessitating the filing of an application for extension of time (Miscellaneous Land Application No. 201 of 2023). The main ground on which the application was predicated was that the DLHT's decision was tainted with illegalities in that, it granted a relief which was neither pleaded nor prayed in the pleading. At the conclusion of the hearing of the application, the learned Judge of the High Court was not convinced that a case had been made out to justify granting of extension of time. While discounting illegality as the basis for extension of time in the said application, the learned Judge reasoned as follows: "[In] m y view, not every error committed in the judgm ent [am ounts] to illegality. [In] my opinion, illeg ality is a concept suggesting that something was done contrary to the law or forbidden by the law. Therefore, it is wrong to plead illegalities on pure m atter o f facts. My undertaking is grounded on a fact that, the learned counsel for applicant was suggesting that even misapprehension o f evidence or failure to analyse evidence, can also be termed to fa ll under illegality, which [in ] my opinion is a wrong and m isplaced idea . " 3 Dismissal of the application triggered yet another battlefront, this time in the form of appeal to this Court. Under the cosh, before us, is the decision that refused the extension of time. The memorandum of appeal that instituted the instant appeal raised three grounds of complaint, paraphrased as hereunder: 1. That, the High Court erred in not considering that the impugned decision o f the DLHT was tainted with illegalities apparent on the face o f the record. 2. The High Court wrongly interpreted the doctrine o f illegality as a ground for extension o f time. 3. The High Court erred for not holding that the appellant demonstrated sufficient cause to warrant extension o f time. Note of worth is the fact that, ahead of the hearing before us, both sets of learned counsel preferred written submissions. This was in pursuance of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing of the appeal, the appellant was represented by Mr. Erick Denga, learned counsel, while his counterpart, Mr. Boaz Moses, learned advocate, had his services enlisted by the 1st respondent. The 2n d respondent, whose notice of appearance was served on him through publication in the newspapers, was absent. In view thereof, and pursuant to 4 rule 112 (1) of the Rules, we ordered that hearing of the appeal proceeds in the 2n d respondent's absence. Mr. Denga opted to argue grounds one and two in a combined fashion, and he began his submission by stating that the question of illegality was raised by the appellant in paragraphs 13 and 14 of the affidavit that supported the application for extension of time. A more particularized account, Mr. Denga contended, was pleaded in paragraph 15 of the appellant's reply to the counter affidavit. The learned counsel argued that, by granting a relief of interest that ran from the date on which purchase of the house was done to the date of the judgment, the DLHT granted a relief which was not asked for. Noting that parties and courts are bound by the pleadings, he argued, it was an act of illegality on the part of the DLHT when it granted the relief. The learned counsel referred us to the decisions of the Court in Yara Tanzania Limited v. Ikuwo General Enterprises Limited [2022] TZCA 604; and Attorney General v. Emmanuel Marangakisi (As Attorney of Anastansious Anagnostou) [2023] TZCA 63 wherein such practice was allegedly abhorred. Mr. Denga contended that the illegalities, which were bred out of the DLHT's irregular conduct of the proceedings, were brought to the attention of the learned High Court Judge but given a wide-berth by the latter, were apparent and did not require a long-drawn process for their discovery. In his 5 contention, the infraction by the DLHT touched on its very jurisdiction and that, the High Court Judge ought to have appreciated this fact. The learned counsel argued that, in the trial proceedings, the DLHT did what the law forbids by granting reliefs which were not claimed and that this typified the illegality that justified granting of an extension of time. He bolstered his argument by citing decisions of the Court in Zanzibar Telecom Limited v. Petrofuel Tanzania Limited [2019] TZCA 176; and Abraham Israel Shuma Muro v. National Institute for Medical Research & Another [2021] TZCA 183. Addressing us on ground three of the appeal, Mr. Denga contended that the appellant demonstrated sufficient cause for the grant of extension of time, including the reason for the delay in taking action after the decision of the DLHT. Such reason included failure by the appellant's erstwhile advocate to inform the appellant of the existence of the decision of the DLHT. In his contention, these reasons made a compelling case which justified granting of extension of time. In his rebuttal submission, Mr. Moses scoffed at the arguments raised by his counterpart. Arguing the grounds of appeal in the same sequence and fashion as that of his colleague, the learned counsel contended that, nothing, in the entirety of the appellant's affidavit and submissions, suggests that there was an illegality in the decision of the DLHT. He argued that, for there 6 to be an illegality, the infraction complained of must entail the court or tribunal acting without jurisdiction; denial of the right to be heard; or that the matter is time barred. He leapt to the defence of the learned High Court Judge's position and referred us to an excerpt from Mulla's Code of Civil Procedure in which it was opined that not every error of law is an illegality. Mr. Moses was adamant that the issue of unpleaded interest would, in no way, come anywhere close to being an illegality. He butressed his contention by drawing our attention to the decisions of the Court in Ibrahim Kusundwa & Another v. Epimaki S. Makoi & Another [2022] TZCA 625; and Charles Richard Kombe v. Kinondoni Municipal Council [2023] TZCA 137. Mr. Moses played down the potency of the decisions cited by his counterpart, contending that they were distinguishable from the instant appeal. Regarding ground three, the contention by Mr. Moses was that, grant of extension of time is a discretion which is only exercised where the applicant demonstrates sufficient cause. The learned counsel contended that, the appellant failed to demonstrate sufficient cause and that, her averments in the supporting affidavit revealed nothing but lack of diligence. He further argued that, reasons for the delay were not convincing and that, the days of delay had not been accounted on each 7 day basis. He argued that, the very act of filing the application after the lapse of more than 30 days exhibited nothing but lack of diligence. Mr. Moses contended that, allegations of miscommunication or lack of cooperation by the appellant's erstwhile advocates are never a sufficient ground for granting an extension of time, arguing that, in law, a party has a duty to make a follow-up of his case even where he enjoys a legal representation. He implored us to be guided by the decision in Lim Han Yung & Another v. LucyTreaseas Kristensen [2022] TZCA400. In rejoinder, Mr. Denga contended that illegality was apparent as the parties were not heard on the question of interest rate. He maintained that, what the DLHT did was not a normal error. It was an error of law which amounted to illegality. Mr. Denga's take is that, the appellant suffered prejudice as a result of the alleged infraction. From the counsel's rival submissions, the crucial issue for our determination is whether refusal by the High Court to grant an extension of time was without any plausible ground. We wish to preface our determination of the matter by recapitulating what is otherwise a settled position. This is to the effect that institution of the proceedings in court must be done in conformity with time prescription set out by law. By doing so, a party demonstrates diligence, a key factor in the conduct of the proceedings. 8 This position was expounded by the Court in Luswaki Village Council and Paresui Ole Shuaka v. Shibesh Abebe [1999] TZCA 86 wherein we held as follows: "... those who seek the aid o f the law by instituting proceedings in court o f law m ust file such proceedings within the period prescribed by law... Those who seek the protection o f the law in the court o fju stice m ust dem onstrate diligence." Where, for some reason, a party misses out on the time prescription for instituting proceedings, the law provides a leeway for bringing the action on course through an application for extension of time. The condition precedent, however, is that the reason for such delay must constitute sufficient reason. In some cases, an illegality, once pleaded, may serve as a ground on which extension of time may be premised. So powerful is illegality, that, when invoked as a reason for extending time, the same precedes all other considerations which play second fiddle. In that case, an applicant would not need to account for the days of delay or prove that he was not apathetic - see: The Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185; Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania [2011] TZCA 4; and VIP Engineering and Marketing Limited & 3 Others v. Citibank Tanzania Limited [2007] TZCA 165. The emphasis laid in the cited decisions is that, such illegality must bear the quality of being apparent on the face of the record and of sufficient importance. Instances of such illegality would include: lack of jurisdiction; denial of the right to be heard; and the contention that the suit from which the application arises was time barred. In the instant matter, Mr. Denga has strenuously argued and implored us to hold that the DLHT's 'generosity' was an operation beyond the realm of its jurisdiction and that, this is where illegality resides. The appellant's sworn depositions have covered the aspect of illegality. His counterpart though, is not convinced that this is the case falling under illegality. His contention is that, while there may be a disquiet here or there on the decision to grant what was not prayed in the reliefs, such misstep does not amount to an illegality. We are of the view that Mr. Boaz could not be more right in his contention and we fully subscribe to his reasoning. We say so, consistent with what this Court has firmly held, over time, which is to the effect that, whereas illegality which is of sufficient importance and apparent on the record is a ground for extension of time, not every point of displeasure or restiveness in a decision qualifies to be an illegality on which an extension of time may be predicated. If the consternation is based on nothing graver than a mere error in the decision, then illegality cannot be inferred. It is 10 a gaffe that remains to be a decisional error, of law or fact, whose challenge and correction would, save for correction of the anomalous reasoning, leave the decision intact, without resulting in its nullification or vitiation. Such error can never be said to constitute an illegality. This position was incisively accentuated in Charles Richard Kombe v. Kinondoni Municipal Council (supra). In illustrating this position, the Court extracted the definition from the Black's Law Dictionary, 11th Edition, in which an illegality is defined to mean: "an act that is not authorized by taw " or "the state o f not being legally authorized'. To put more flesh onto the definition extracted from the Black's Law Dictionary, the Court scoured far and wide and picked a persuasion from the reasoning in Keshardeo Chamria v. Radha Kissen Chamria & Others AIR 1953 SC 23, 1953 SCR 136. In that decision, the Supreme Court of India gave a broad definition of the term illegality and material irregularity as follows: "... th e w ord s " ille g a lly " a n d "m a te ria l irre g u la rity " do n o t co v e r e ith e r e rro rs o f fa c t o r law . They do not refer to the decision arrived a t but to the m anner in which it is reached. The errors contem plated relate to m aterial defects li o f procedure and not to errors o f either taw or fact after form alities which the law prescribes have been com plied with. "[Emphasis is added] In the end, we drew a conclusion in Charles Richard Kombe (supra) that, it is not in order, to impute illegality in a decision if the infraction in question is not graver than mere errors or law or fact, otherwise known as decisional errors. This is precisely because such errors are a common feature in court decisions and their correctional mechanism is through appeals to higher courts. In the end, we concluded as follows: "From the above definitions, it is our conclusion that fo r a decision to be attacked on the ground o f illegality, one has to successfully argue that the court acted ille g a lly fo r want o f jurisdiction, o r fo r denial o f righ t to be heard or that the m atter was tim e-barred." Significantly, our reasoning in the just quoted excerpt is in sync with the passage in Mulla (supra), whose attention was drawn to us by Mr. Boaz. The learned author opined at page 1381, as follows: " Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with m aterial irregularity, m erely because it has come to an erroneous decision on a question o f fact or even o f law ." 12 We are not convinced, one bit, that from the nature of the proceedings in the High Court, the learned Judge went astray when he considered the error by the Chairman of the DLHT to be a mere slip up which was not of the nature or quality of an illegality envisioned as the basis for granting extension of time. It cannot be said, either, that since the granted relief was substantially different from what the 1st respondent prayed then jurisdiction of the DLHT was ousted. The DLHT was clothed with powers to determine the dispute and issue orders as it did. This, therefore, brings us to the point of seeing grounds one and two of the appeal as unmeritorious and we dismiss them. The gravamen of the appellant's complaint in ground three is that, the learned High Court Judge erred when he held that the appellant had not demonstrated sufficient cause. The counsel are of the divergent views on this aspect. Mr. Denga is convinced that a case had been made to warrant an extension of time, whilst Mr. Boaz is valiantly unfazed. His take is that factors necessary for such grant were not fulfilled. As both counsel agree, grant of extension of time is, besides on the ground of illegality, predicated on satisfaction of the key considerations which were propounded in Lyamuya Construction Company Limited (supra) and underscored in many a decision that came subsequent thereto. These factors require: 13 (a) Accounting for all period of delay; (b) The delay should not be inordinate; and (c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. See also: Ahmed Mohamed Kidege v. Msichoke Peter Lugome [2023] TZCA 17342. One of the reasons adduced by the appellant for her inaction is that, her erstwhile advocates, Messrs Law Associates (Advocates), did not convey the news of passage of the decision of the DLHT from which the intended appeal would timely emanate. Paragraph 8 of the affidavit informs that, whereas the decision of the DLHT was delivered on 13th December, 2022, the appellant became aware of the existence of the adverse decision on 3rd March, 2023. This obliviousness is what Mr. Denga clings on as the reason and that, steps that followed subsequently depicted diligence in the prosecution of the action the applicant intended to take. Nothing convinces us that what is considered to be a miscommunication or failure by the appellant's counsel to report on what transpired on the date of the judgment at the DLHT is a reason, let alone a good enough, to justify the dilatoriness in taking action. We are mindful of the settled position which is to the effect that, a party is still under obligation 14 to keep track of what is happening to his case even where he has engaged an advocate to represent him in the court proceedings. We underscored this view in Lim Han Yung & Another (supra) wherein we observed that: "We think that a party to a case who engages the services o f an advocate, has a duty to closely follow - up the progress and status o f h is case. A party who dumps h is case to an advocate and does not make any follow ups o f h is case, cannot be heard com plaining that he did not know and was not inform ed by his advocate the progress and status o f h is case. Such a party cannot raise such com plaints as a ground fo r setting aside an ex-parte judgm ent passed against him ." Further emphasis to the matter was made in Abdallah Juma Kambale v. Noradi Tiliko Mongelwa [2023] TZCA 17730 in which we guided as follows: "On the other hand, as [alluded] to above, the party to a case who engages the services o f an advocate, has a reciprocal duty to closely follow up the progress and status o f h is case. See Lim H an Yung & A n o th e r v. L u cy T reaseas K riste n sen, C ivil Appeal No. 219 o f 2019 [2022] TZCA 400 (28 June 2022) TanzLII and E /ias M a sija N ya n g 'o ro & O th ers v. M w an an ch i In su ra n ce C om pany Lim ite d , C ivil Appeal No. 278 o f 15 2019 [2022] TZCA 648 (24 October 2022) TanzLII. However, it is notew orthy that each case is decided on its own facts and circum stances..." We do not find the facts and circumstances of this case as presenting any peculiarity which would justify any departure from this enduring position of the law. We, as such, do not find the advocates' alleged ineptness as sufficient justification for the appellant's dilatory conduct. There is yet another issue with respect to what happened between 3rd March, 2023, when the appellant enlisted services of another firm of advocates, to the date of filing the application that eventually fell through. It is noted that it took a whopping 33 days in between these dates and the explanation given is that the time was spent soliciting and obtaining a legal opinion, actual engagement of the law firm and eventual filing of the application on 6th April, 2013. The question we ask ourselves is whether these actions would require in excess of a month to fulfil. Our hastened answer to this question is that, only a fraction of it would suffice. Nothing would be so engrossing in determining the course of action to be taken against the decision that the appellant was jittery about, and that, the tide of time prescription had turned against her. The elementary action that she ought to have taken was the lodgement of an application for extension of time. That, the determination of this simple action took more than a month 16 is as baffling as it is a manifestation of lack of diligence and a height of an apathetic conduct that the learned High Court Judge rightly abhorred and we find nothing blemished in that decision. Consequently, we find this ground hollow and we dismiss it. In the upshot, we find this appeal barren of fruits and, accordingly, we dismiss it with costs. DATED at DAR ES SALAAM this 13th day of November, 2025. B. M. A. SEHEL JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 14th day of November, 2025 in the presence of Mr. Erick Denga, learned Counsel for the Appellant, Mr. Boaz Moses, learned Counsel for the ^Respondent, Mr. Issa Bakari Issa, Court Clerk and in the absence of the 2n d Respondent; is hereby certified as a true copy of the original.