NCBA Bank (Tanzania) Limited vs Pr. Mary Anprew Mgonja (Civil Application No. 1383 of 2025) [2025] TZCA 1181 (12 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT POPOMA f CORAM: KEREFU, 3.A.. MDEMU, J .A, And MANSOOR, JLA ) CIVIL APPLICATION NO. 1383 OF 2025 NCBA BANK (TANZANIA) LIMITEP .......................................... APPLICANT VERSUS PR. MARY ANPREW MGONJA...............................................RESPONPENT (Application for Amendment of Notice of Appeal in Civil Appeal No 932 of 2025, arising from the Judgment of the High Court (Commercial Pivision) at Par es Salaam) (Maruma. J.) Pated the 5th day of September, 2022 in Commercial Case No. 121 of 2021 RULING OF THE COURT 7th & 12th November 2025 MANSOOR. J.A.: The applicant, NCBA Bank (Tanzania) Limited, being aggrieved by the judgment of the High Court (Commercial Division), in Commercial Case No. 121 of 2021, delivered on 5th September 2022, "the impugned judgment", lodged the notice of appeal on 6th September 2022, consequently Civil Appeal N o,, 932 of 2025 was instituted. However, the notice of appeal and the letter requesting for copies of proceedings, indicated an incorrect case number of the impugned judgment. The applicant also applied for leave to file the supplementary record of appeal in Civil Appeal No. 932 of 2025 to include the amended notice of appeal and the amended letter requesting for copies of proceedings, should the leave to amend the notice of appeal and the letter is granted. It is stated in the affidavit of Mr. Gaspar Nyika, the advocate for the applicant in the appeal as well as in the present application, and who was authorised by the applicant to swear the affidavit in support of the application, that, having noticed the error in the citation of the case by the High Court in the impugned judgment, the applicant filed the present application for amendment of the notice of appeal so as to indicate in it the correct case number. The application was brought to Court under Rules 48 (1), (2), 49 (1), and 111 of the Tanzania Court of Appeal Rules, 2009, (the Rules) and supported by the affidavit of Mr. Nyika. The grounds upon which the application is premised are found in the affidavit of Mr. Nyika, in which he states that, the correct case number in the impugned judgment of the High Court, Commercial Division, is Commercial Case No. 121 of 2021, but the notice of appeal as weil as the letter requesting for proceedings, incorrectly indicated Commercial Case No. 150 of 2021 as the decision of the High Court, Commercial Division they intend to challenge. Mr. Nyika stated that the error was made by the High Court, Commercial Division, when it issued the Judgment and Decree in Commercial Case No. 121 of 2021, and upon discovering the error, the applicant notified the High Court, thereupon the error was rectified. The applicant was then supplied with the copies of the rectified judgment and decree in which the case number was correctly indicated as Commercial Case No. 121 of 2021. At that time, the applicant had already filed the notice of appeal as well as the letter requesting for copies of the High Court's proceedings with the incorrect case number. This is what prompted the applicant to file the current application for amendment of the Notice of Appeal, and consequently to file the supplementary record of appeal, should the order to amend the notice of appeal is granted. At the hearing of the appeal, Mr Edna Mwankenja, learned advocate appeared for the applicant but the respondent did not enter appearance. Ms Mwankenja had satisfied the Court that the copy of the notice of motion and its accompanying affidavit was duly and adequately served upon the respondent in terms of rule 55 (1) of the Rules but the respondent did not file any affidavit in reply as required by rule 56 (1) of the Rules. We were also satisfied that that the notice of hearing was served to the respondent, however, despite the service, the respondent neglected to appear before the Court for hearing, hence the application proceeded exparte in terms of rule 63(2) of the Rules. In support of the application, the applicant filed the written submission which Ms Mwankenja adopted it in full, she also adopted the affidavit of Mr. Nyika to form part of her submissions. In her oral submissions, she amplified on the powers of the Court to order amendment of the notice of appeal or notice of cross appeal or memorandum of appeal or any record of appeal conferred to Court by rule 111 of the Rules. She also made reference to various decisions of the Court, particularly, the case of Julius P.K Nkonya vs William Michael Kudoja (Civil Appeal No. 12 of 2016) [2018] TZCA 286 (17 October 2018), in which we stated "the Court may allow amendments at any time before an objection is raised depending on the circumstances o f each matter . " She also submitted that, in granting the order for amendment of any document in the record of appeal, the Court is guided by factors such as, the need for amendment, the nature and extent of the amendments, the party's conduct, whether the hearing has commenced, the risk of the requested amendment, the prejudice, if any to the other party and the type of the amendment sought, the position which was set by the Court in Dr. Salum AM Chambuso vs Paul Elias Maro (Civil Appeal No. 116 of 2021) [2021] TZCA 666 (5 November 2021). She emphasised that all the factors mentioned in the above cited decisions of the Court have been met by the applicant warranting the granting of the reliefs sought in the notice of motion. Having considered the affidavit of Mr. Nyika, the written submissions as well as the oral submissions of Ms. Mwankenja, and the guidelines and factors for consideration set by the decisions of this Court for granting or refusing to grant the amendment, we shall now determine whether the applicant is in compliance with those factors warranting us to grant the orders sought in the application. We have no doubt that in the matter at hand, there is the need for amendment of the notice of appeal as well as the letter requesting for proceedings to enable the Court to determine the real question of controversy in the appeal. It is as clear as stated in paragraphs five (5) and six (6) of the affidavit in support of the application that, there was an error in the citation of the case number in the impugned judgment and decree of the High Court, which error was rectified after the applicant had already filed the notice of appeal as well as the letter requesting for the High Court's proceedings. The error in the designation of the case number in the notice of appeal and in the letter, inescapably requires the amendment, and resultantly, for an order amending the record of appeal to include the amended notice of appeal and the letter which bear the correct case number. Again, as stated in paragraph 7 of the affidavit in support of the motion, it was the applicant that had discovered the error and promptly notified the High Court for rectification. The rectification of the case number in the impugned judgment as well as the present application was made before the appeal was fixed for hearing. Therefore, the applicant's action of notifying the High Court of the error and the prompt action taken by the applicant to apply for amendment of the notice of appeal and the letter before the appeal was set for hearing shows a high degree of diligence and professionalism on the part of the applicant. Besides, we agree as submitted by Ms. Mwankenja that, the amendment will not prejudice the respondent or cause any injustice to parties but will assist the court to have a complete and correct record for fair and speedy determination of the appeal. Since the application for amendment was lodged before the appeal was cause listed for hearing, the amendment of the notice of appeal and the letter, will not derail the appeal from its ordinary route, rather, the amendment would facilitate expeditious hearing and determination of the appeal when cause listed. Based on the foregoing, and in terms of rule 111 of the Rules, we allow the application. The applicant is granted leave to amend the Notice of Appeal as well as the Letter requesting for copies of proceedings in order to indicate therein the correct case number of the judgment and decree of the High Court appealed against i.e., Commercial Case No. 121 of 2021. 6 Having granted the applicant leave to amend the notice of appeal as well as the letter requesting for proceedings, as a consequential order, we also grant leave to the applicant, in terms of rule 4 (2) (a) and (b) of the Rules to file the supplementary record of appeal so as to file the Amended Notice of Appeal as well as the rectified Letter requesting for the High Court's proceedings. The supplementary record shall be filed within one month from the date of this Ruling. DATED at DODOMA this 12th day of November, 2025. R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU, JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Ruling delivered this 12th day of November, 2025 in the presence of Ms. Edina Mwankenja, learned counsel for the Applicant, Leopard Mabugo, Court Clerk and in absence of Respondent is hereby certified as a true copy of the original. ► /DEPUTY REGISTRAR /J COURT OF APPEAL 7