NCBA Bank (Tanzania) Limited vs Brandt Eckhard & Others (Civil Application No. 261/ 16 of 2024) [2025] TZCA 1163 (23 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 261/ 16 OF 2024 NCBA BANK (TANZANIA) LIMITED...........................................APPLICANT VERSUS BRANDT ECKHARD...........................................................1 st RESPONDENT BENS AGROSTAR COMPANY LIMTED ............................. 2 nd RESPONDENT (Application for Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Aqathp, J.) dated the 6th day of April, 2023 in Commercial Case No. 33 of 2022 RULING 6th & 23rd October, 2025 MURUKE. J.A.: The applicant, the bank, has lodged present application, by way of notice of Motion, seeking extension of time, within which to serve the 1s t respondent, with the copy of the letter requesting for certified copies of the judgment, decree and proceedings in Commercial Case No. 33 of 2022, between Brandt Eckhard vs. NCBA Bank (Tanzania) Limited, Dar es salaam district (Commercial Division) at Dar es salaam dated 6th April, 2023. i

The background of this matter is that, the applicant was aggrieved by the judgment of the Commercial Case No. 33 of 2022, delivered on 6th April, 2023, thus, logged a notice of appeal on 16th April, 2023, to challenge the same to the Court. Equally so, on 17th April, 2023 the applicant counsel served a copy of the notice of Appeal to the first respondent and on 19th April, to the 2n d respondent. While serving the notice of appeal to the 1st respondent, the second respondent was served with the copy of the letter requesting for certified copies of the judgment, decree, proceedings, and certificate of delay. In the cause of preparing the memorandum and record of Appeal, the applicant's counsel discovered that, while serving copy of notice of appeal to the 1s t respondent, erroneously did not effect the service of the copy of the letter requesting for certified copy of the judgment, decree, proceedings and certificate of delay to the 1s t respondent. Following the omission, on 13th March, 2024, the applicant counsel served the 1s t respondent a copy of the letter requesting a certified copy of the judgment, decree, proceedings and a certificate of delay to the 1s t respondent out of time, hence the filing of the present application to remedy the situation. 2

The notice of motion is supported by an affidavit deposed by Mr. Walter Masawe, the applicant's counsel, authorized to swear for and on behalf of the applicant. The two respondents did not file affidavit in reply. It is worth insisting that, the position of the law is well settled and clear that, where the respondent does not lodge an affidavit in reply despite being served, it is taken he does not dispute the contents of the applicant's affidavit. See for instance, Ultimate Security (T) Limited v. Chande Ally Lubugile and OThers, [2023] TZCA 17332 TANZLII, Finn Von Wurden Petersen v. Arusha District Council [2020] TZCA 167 Tanzlii, and Yokobeti Sanga v. Yohana Sanga [2013] TZCA 2176 TANZLII in which the Court held that: "... it is settled that where the respondent does not Lodge an affidavit in reply despite being servedit is taken that he does not dispute the contents o f the applicant's affidavit .................. Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from matters o f fact, but can challenge the application on matters o f law"

At the hearing of the application on 6th October, 2025, Mr. Luka Elingaya assisted by Mr. Alex Mianga, both learned counsels represented the applicant, whereas first and second respondents were represented by Mr. Matojo Mushumba and Mr. Simon Lyimo, respectively. Having adopted the notice of motion and supporting affidavit, Mr. Elinganya submitted that although the letter requesting for judgment, proceeding and decree was filed and served to the 2n d respondent in time, to the first respondent was not served in time. That happened as the person who was sent to serve the same did not do so. After it came to the knowledge of the applicant counsel, the letter was served but it was out of time, he then decided to file the present application to remedy the situation. The applicant counsel intimated to me that it is a mere omission, or inadvertence that can be excused. More, so, there is no injustice to the respondents because: - one, the first respondent has been served with the said letter and he has not disputed. Two, applicant has filed record of appeal and served to all the respondents. Three, the 1st respondent who was delayed to be served with said letter, has filed submission in reply to contest the applicant appeal, yet to be fixed for hearing. Mr. Elingaya, made reference to the case of Zanzibar Telecom Ltd v. The commissioner General (TRA), Civil application No. 222/ 15 of 2021, to

move the Court to grant extension of time retrospectively, from when the 1s t respondent served with the said letter. On the other hand, the first respondent counsel contesting the application, submitted that applicant counsel has failed to account for days of the delay. Judgment was delivered on 6th April, 2023. Applicant was supposed to serve the respondent the copy of the letter within 30 days from the date filed. Mr. Mushumba, insisted that in an application for extension of time, even if it is one day, it has to be a countered for, referring the Court to the case of Bushiri Hassani v. Latifa Lukio Mashayo, (Civil Application No. 3 of 2007) [2008] TZCA 220, where the Court stated that: "...Delay of even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken." (Emphasis added) The first respondent's counsel insisted that, looking at paragraph 9 of affidavit in support of the application, applicant counsel was not prudent enough to serve the 1st respondent, he thus, prayed for dismissal of the application for lack of sufficient cause. In his part, the 2n d

respondent's counsel, not only he did not file affidavit in reply, but also did not contest the prayers sought in the notice of motion, on account of right to be heard. Having heard both sides, the issue for my determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the rules, for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as reference to that time as so extended". It is also important to underscore here that, under the above cited provisions, what the applicant is required to do is, to show good cause for delay to move the Court to grant the application. This stance has been taken in a number of decisions including the case of Kalunga & 6

Company Advocate v. National Bank of Commerce Limited, (2006) T.L.R 235. According to affidavit in support of the notice of motion, the applicant counsel is seeking the Court to grant extension of time to serve letter, requesting for a certified copy of the judgment, proceedings and decree to the 1st respondent. The reason stated is failure by the person sent to serve the letter to the 1s t respondent, despite serving the 2n d respondent. The applicant counsel upon realizing the omission, he mitigated by serving the letter, although out of time. It is not disputed by the first respondent that he has been served with the letter requesting applicant to be supplied with copy of the proceedings, judgment, decree and certificate of delay. Equally so, he has been served with memorandum and record of appeal, and filed submission to contest the grounds of the appeal. More so, applicant's appeal is yet to be fixed for hearing. To this court, applicant counsel efforts is for the applicant right to be head on his appeal on the allegations of fraud as decided by the trial court. The first respondent will not be prejudiced as he will have the right to be heard on appeal. To the contrary, the applicant right to be heard will be prejudiced, which is so fundamental.

In the case of VIP Engineering and Marketing Limited v. Salim Said Bakhressa, Civil Application No. 47 of 1996 (unreported), it was obsen/ed that, not every procedural sins shall result in the death of justice. In particular, the Court observed that: "While the importance o f litigants complying with the rules o f Procedure cannot be overemphasized, it must not be forgotten in the courts if judicial officers are obsessed more with strict compliance with the procedural rules than what the merits o f the disputes before them are. To stray into that, error is to aid the judicatures grave diggers . " The applicant has asked me, extension of time to be retrospective in their nature, as already served the first respondent with the said letter. This is not the first time the Court is being moved to grant orders retrospective, as same was done in the case of Tanzania Harbours Authority v. Mohamed R. Mohamed [2003] T.L.R.76. Equally so, in the case cited by the applicant counsel of Zanzibar Telecom Ltd v. The Commissioner General (supra) single Justice granted extension of time retrospective. Guided by the Court's decision above mentioned, I therefore, grant the extension sought to 13th March, 2024, the date on which the applicant served the 1s t respondent a copy of the letter

requesting for certified copy of the Judgment, Decree, proceedings and certificate of the delay. Cost to be in the appeal. It is so ordered. DATED at DAR ES SALAAM this 23rd day of October, 2025. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 23rd day of October, 2025 in the presence of Mr. Luka Elingaya, learned counsel for the applicant and also hold brief of Amne Suedi, for the 1st respondent and in the absence of the 2n d respondent and Mr. Nelson Novati, Court Clerk; is hereby certified as a true copy of the original. £// COURT OF APPEAL 5\v D. R. LYIMO £lDEPUTY REGISTRAR 9