BAY Investment Limited vs Exim Bank Tanzania Limited & Others (Civil Application No. 1336 of 2024) [2025] TZCA 970 (17 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1336 OF 2024 BAY INVESTMENT LIM ITED ......... . .......... . .................... . ............ . APPLICANT VERSUS EXIM BANK TANZANIA LIMITED ............................................ 1 st RESPONDENT EL NASR EXPORT AND IMPORT CO. LIM ITED ........... . ..... 2 nd RESPONDENT BAY INVESTMENTS LIM ITED .................................................3 rd RESPONDENT ONYX VILLA LIMITED.................................... . ........................ 4 th RESPONDENT LAKE HOLDINGS LIM ITED ............................................ . ..... 5™ RESPONDENT (Application for extension of time to file reference against the decision of the Single Justice of the Court) (Mqonva, J.A) dated the 25th day of June, 2024 in Civil Application No. 258/01 of 2024 RULING 26th August & 17th September, 2025 RUMANYIKA. J.A.: Before the High Court of Tanzania at Dar es Salam ("the trial court") in Civil Case No. 129 of 2019, the 1st respondent then the plaintiff unsuccessfully sued the applicant, 2nd, 3rd, and 4th respondents. She had claimed, inter alia for being declared the rightful recipient of rent arrears amounting USD 640,000.0 collected on Plot No. 747/39 along Samora i

Avenue in Dar es Salaam City ("the suit property"). The applicant won the battle as she was the one entitled to get the rent arrears. Also noteworthy, the 1st respondent had filed Misc. Civil Application No. 414 of 2019 before the trial court and granted interim orders. As such, the parties maintained their status quo. The application was granted upon a condition that the 1st respondent deposit into the Judiciary Account the undisputed rent arrears of USD 600,000.0 within fourteen days of the decision. The 1st respondent accordingly fulfilled that condition. The record also reveals that, upon delivery of the corresponding judgment, the applicant filed Execution Application No. 7118 of 2024 seeking to realize the corresponding decretal sum of USD 3,420,000.0 among others. She thus, asked for a court order to transfer the USD 600,000.0 into her Bank Account which nevertheless was deposited into the Judiciary Account. Consequently, the 1st respondent applied for stay of execution of the impugned decree vide Civil Application No. 258/01 of 2024 before this Court. Upon its satisfaction that the requirements for the grant of the stay order were all met, the single Justice of the Court, in her ruling dated 28th June, 2024 granted it. The stay order was upon a condition that the USD 600,000.00 deposited by the 1st respondent at the Judiciary Account earlier on be considered as security for the due 2

performance of the respective decree. Aggrieved with that decision, the applicant now seeks to have that order ultimately overturned by way of reference in terms of rule 62(1) of the Rules. The application is by notice of motion predicated on rules 45A (1) (a), 10 and 4(2) (b) of the Tanzania Court of Appeal Rules, 2019 ("the Rules"). It is supported by an affidavit deponed by Fouad Mustafa Hamdi Martis, the applicant's Principal Officer. Three grounds are fronted, namely; one, it took her hardly five months to be aware of the impugned single Justice's decision, two, it took her about four days only to hire a new lawyer from the West End Law Group and to file the present application and three, the court order for the USD 600,000.0 deposited by the 1st respondent to be used security constituted an illegality. Notably, in a bid to account for the delay, it is averred under paragraph 8 of the founding affidavit that the applicant was notified belatedly by her advocate on the 22n d November, 2024 of the existence of the impugned single Justices' decision. She also pleaded illegality of the decision as a sufficient ground for the grant of extension of time to file reference in terms of rule 62(1) of the Rules. At the scheduled hearing of the application, Mr, Sylivatus Mayenga, learned counsel appeared for the applicant. Mr. Fraterine Munale, learned

counsel represented the 1st respondent. Messrs. Shehzada Walii and Kiltey Mwitasi, learned counsel appeared for the 2n d and 3rd respondents, whereas the 4th and 5th respondents had the services of Messrs. Shuma Kisenge and Sabas Shayo also learned counsel respectively. Mr. Mayenga adopted the applicant's written submissions filed on 18/12/2024. Clarifying, on the 1st ground he contended that, it took the applicant about five months to be aware of the decision due to the miscommunication with her previous advocate, and hence the delay. As regards illegality, Mr. Mayenga asserted that, the single Justice had no jurisdiction on the USD 600,000.0. It is so, it was argued, that the said sum was nevertheless pleaded and covered previously in separate proceedings vide Misc Civil Application No. 414 of 2019 before the trial court. Mr. Mayenga urged me to grant the application without costs. Mr. Munale opposed the application by adopting an affidavit in reply sworn by Mr. Edmund Aaron Mwasanga, the 1st respondent's Principal Officer. He contended that, even if it is agreed that the delay was caused by inaction or negligence of the applicant's previous advocate, it could not assist one. To him, those assertions did not constitute sufficient cause as the Court pronounced itself in Charles Marko Naibala v. Lilian Marko Naibala (Civil Application No. 119/05 of 2024) [2024] TZCA 468 (14 June 4

2024; TanzLII) which he cited to fortify his proposition. Besides, he argued that, the applicant's assertions came, from the bar not supported by an affidavit sworn by the alleged advocate and thus liable to be disregarded for being hearsay and unauthentic. To buttress his point, Mr. Munale cited Cats Net Ltd. v. Tanzania Communication Regulatory Authority (Civil Application No. 526/01 of 2020) [2022] TZCA 616 (6 October 2022; TanzLII). Further, Mr. Munale contended that, the applicant may have been caught up in the process but he did not account for each day of the delay of about five months as proposed by the Court in Lyamuya Construction Co. Ltd. v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 (3 October 2011; TanzLII). About the alleged illegality of the single Justice's order on the USD 600,000.0, Mr. Munale asserted that, the point raised was not demonstrated as being apparent on the face of the record. He argued that whether the said money could be viable or good security is factual whose proof of its existence needed a long-drawn process. He implored me to discount this complaint while cementing his point by citing the Court's decision in Lyamuya case (supra). He therefore prayed for an order dismissing the application for being meritless. 5

On his part, Mr. Walii also opposed the application despite of his not filing any affidavit in reply or written submission. He contended that, failure of the advocate to inform the applicant that the decision is out until five months later exhibited negligence which constituted no sufficient cause for the grant of extension of time. He implored me to dismiss the application with costs. Mr. Mwitasi also neither filed any affidavit in reply nor written submission. However, he opposed the application asserting that, the applicant did not account for such inordinate delay nor did she demonstrate the alleged illegality sufficiently for the Court to exercise discretion to grant an extension of time. He asked me to find the application unmerited and to dismiss it with costs. Then it was Mr. Kisenge's turn who also informed me that, although he did not file any affidavit in reply or written submission, he opposed the application for the applicant's failure to show sufficient ground for the grant of extension of time. Mr. Shayo opposed the application by adopting the affidavit in reply, the list of authorities and written submission filed on 17/01/2025 for the 5th respondent. It was argued that, the applicant failed to account for each day of the delay of about five months reckoned from the date of deliver/ 6

of the impugned decision, the 28th June, 2024 and the 26th November, 2024 when the instant application was filed. He implored me to dismiss the application. To bolster his proposition, he cited Tanzania Revenue Authority v. Dawson Ishengoma, (Civil Application No. 126 of 2011) [2012] TZCA 254 (29 May 2012; TanzLII). As regards the applicant being aware of the impugned decision belatedly due to inaction of her previous advocate, Mr. Shayo contended that, those assertions came from the bar as the alleged advocate did not take any supporting affidavit. If anything, he added, it was but due to negligence of the advocate which constitutes no sufficient cause. To buttress his argument, Mr. Shayo cited our decision in Jubilee Insurance Company (T) Ltd v. Mohamed Sameer Khan (Civil Application 439 of 2020) [2020] TZCA 623 (12 October 2022; TanzLII). Regarding the alleged illegality of the impugned order of the single Justice on the USD 600,000.0 as security for the due performance of the decree, Mr. Shayo contended that, all was in order as the single Justice exercised her discretion as to what justice of the case reasonably demanded then. While citing Kibo Hotel Kilimanjaro Ltd. v. The Treasury Registrar & Another (As the Legal Successor to PSRC) (Civil Application No. 502/17 of 2020) [2021] TZCA 80 (18 March 2021; 7

TanzLII), Mr. Shayo asserted that, in the instant application no any point of law of sufficient importance for the Court's determination such as illegality of the decision intended to be challenged was demonstrated. He implored me to dismiss the application with costs. In reply, Mr. Mayenga reiterated the applicant's written submission. He urged me to discount all factual assertions made by the learned counsel for the 2nd, 3rd and 4th respondents who did not file affidavits in reply. He also argued that the issue of negligence of the applicant's advocate causing the delay came from the bar and thus, it has to be disregarded. Rather, it was due to miscommunication between the applicant and her previous advocate which may not necessarily constitute negligence, he argued. Finally, Mr. Mayenga urged me to find the application merited and to grant it without costs. I have considered the submissions, the list of authorities and rival arguments of the parties' counsel and also examined the record critically. The pivotal issue therefore is whether the applicant has demonstrated sufficient cause for the grant of extension of time. In terms of rule 62(1) of the Rules, any person aggrieved with a decision of a single Justice of the Court has to lodge reference within seven (7) days after the delivery of that decision. For the present

application, it is apparent that the decision was handed down on 25th June, 2024. Therefore, the application for reference should have been filed as late as on 2n dJuly, 2024. However, it was lodged on 26th day of November, 2024, about four months ahead of the prescribed time. The applicant was therefore duty bound to account for the delay from 3rd July, 2024 to the 26th day of November, 2024 when this application was filed which she did not. It is averred for the applicant that, it was not until the applicant was late in the day on the 22n d November, 2024 informed by her previous advocate (Mr. Mbuga Jonathan of Legis Attorneys) that the decision is out. However, this assertion is hearsay and unauthentic as there is no supporting affidavit taken out by the advocate. In that regard, the position of law is clear that, when an affidavit raises a fact whose existence needs proof by any other independent person, the latter also has to take out such a supporting affidavit. See- Sabena Technics Dar Ltd. v. Michael J. Luwunzu (Civil Application No. 451 of 2020) [2021] TZCA 108 (14 April 2021; TanzLII). Very unfortunately, this was not done. As such, the period of about 120 days reckoned from 2n d July, 2024 when the filling of an application for refence became due to the 26thday November, 2024 when the present application was filed was not accounted for. Therefore, it is 9

bound to fail. To hold so, I am guided by the long-established legal principle that, a delay even of a single day has to be accounted for. I am settled in my mind, therefore, that the instant application has not met the afore stated threshold. The said delay may have been caused by the miscommunication between the applicant and her previous advocate as alleged by Mr. Mayenga or by negligence of the advocate as stressed by the respondents' counsel. All the same, it is all about semantics in my considered view. As such, it could be said equally, that upon the applicant hiring the legal services of advocate she became home and dry for about five good months which constituted negligence of the highest order. In any case it is inexcusable. Next for my consideration is the alleged illegalities of the order of the single Justice. To state the obvious, it is a settled law that, where an illegality is sufficiently demonstrated, it constitutes sufficient ground for the grant of extension of time. For the instant application, therefore, the follow up question lies on what is averred on paragraph 11 of the founding affidavit. It is with respect to the single Justice's order that the USD 600,000.0 made previously in separate proceedings and thus deposited into the Judiciary Bank Account being considered as security in terms of rule 11(5) (b) of the Rules. Now, 10

was the alleged illegality demonstrated as required by law? As such, without running the risks of overstretching my hand, the applicant may have been aggrieved with the said order which may not necessarily constitute an illegality of the decision but rather, in this case, a ground of reference for that matter. Seemingly, the applicant is attempting to challenge what, in her discretion the single Justice considered to be desirable form of security to be furnished. Put in other words, the issues whether or not the order on the USD 600,000.0 was made unsolicited, its equivalence or otherwise with the decree or whether the single Justice had the jurisdiction left a lot to be desired. They are not apparent on the face of record needing very long-drawn arguments and process to be established. After all, it is common ground that, for a point of illegality to stand, at least the applicant has to establish the following; one, that the court acted illegally for want of jurisdiction, two, that there was a denial of right to be heard and three, that the matter was time-barred which is not the case before me. We have taken this stance several times and repeatedly such as in Charles Richard Kombe v. Kinondoni Municipal Council (Civil Reference No. 13 of 2019) [2023] TZCA 137 (23 March 2023; TanzLII). In other words, court users may wish to remember that there is always a distinction between an illegality of a decision constituting sufficient ground for the grant of extension of time li

for the doing of such an act from an erroneous court decision forming a ground of appeal, revision, review or reference as the case may be. As such, this application was filed without justification as no good cause has been shown to warrant an extension of time. Accordingly, the application is unmerited and, on that account, it is hereby dismissed with costs. DATED at DODOMA this 17th day of September, 2025. Ruling delivered this 17th day of September, 2025 in the presence of Mr. Sylvanus Mayenga, learned counsel for the applicant, also holding brief for Mr. Shehzada Walii, learned counsel for the 2n d Respondent, Mr. Shuma Kisenge, learned counsel for the 3rd respondent, also holding brief for Mr. Roman Masumbuko, learned counsel for the 1st respondent and Mr. Sabas Shayo, learned counsel for the 4th respondent and Ms. Oliver Mark, learned counsel for the 5th respondent, both through Virtual Court and Mr. Elias Nkwabi, Court Clerk is hereby certified as a true copy of the original. S. M. RUMANYIKA JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12