Ian A. Moshi & Another vs Jehangir Aziz Abdulrasul & Others (Civil Application No. 1472 of 2024) [2025] TZCA 919 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1472 OF 2024 IAN A. M O SH I............................................................... . 1 st APPLICANT APAISARIA SOFARI@APAISARIA MSURI M OSHI .................2 nd APPLICANT BEN AND COMPANY LIMITED........................................ . 3 rd APPLICANT ALEX S. M O SH I .............................................. . ..................... 4™ APPLICANT BEN IAN MOSHI .................................................................. 5™ APPLICANT APAISARIA SOFARI@APAISARIA MUSURI MOSHI(Adminstratrix of the estate of AWUMSURI B. MOSHI) . .................................. . ........6™ APPLICANT VERSUS JEHANGIR AZIZ ABDULRASUL ................ . .......................... 1 st RESPONDENT MS BENADYS LIMITED .................................................... 2 nd RESPONDENT MARIA A. M OSHI...............................................................3 rd RESPONDENT JOSHUA E. MWAITUKA t/a RHINO AUCTION MART ..... . 4 th RESPONDENT (Application for extension of time to apply for revision against the decision of the High Court of Tanzania, Land Division at Dar es Salaam ) fMsaflri, dated 23r d day of April 2024 in Miscellaneous Land Application No. 747 of 2023 RULING 27th & 29th August 2025 MAIGE, J.A.: The first respondent lodged, at the High Court of Tanzania (Land Division), henceforward "the HC", an application against the second and fourth respondents claiming for the following substantive relief:

"This Honorable Court be pleased to lift the veil o f incorporation (Ms. Benandys Limited) the first respondent herein and hold liable, IAN A, MOSHI, A WAMSURI B. MOSHI, MARIA A. MOSHI, ALEX S. MOSHI, APAISARIA SOFARI and IAN MOSHI, BEN IAN MOSHI, BEN AND COMPANY LIMITED, AND IAN MOSHI being the directors and shareholders for the 1st Respondent, respectively so as to satisfy the decretal sum o f TZS 3,909,318,674. ” As per paragraph 6 of the affidavit in support thereof, the application in question was commenced on the ground that the applicants and third respondent in the current application were " deliberately concealing the properties o f the 1st respondent and personally hide under the veil o f incorporation to escape liability" with a view to preventing their attachments in execution of the decree of the Court of Appeal in Civil Revision No. 6 of 2015, ("the decree") in which the 1s t respondent was a judgment debtor. On 23r d April, 2024, the HC pronounced its decision ("the decision") as a result of which the 2n d respondent's veil of incorporation was lifted. The applicants became aware of the existence of the decision on 20th November, 2024 after the 1s t applicant had been served with a notice to show cause why shouldn't he and his property be attached in execution of the decree. As they were aggrieved by the decision, the applicants

hired an advocate to challenge it to the Court on their behalf but they were already time barred which is why they have resorted to the current application. The grounds for the application are pleaded in the notice of motion and substantiated by an affidavit deposed by the 1s t applicant. It has been opposed by the 1s t respondent's affidavit in reply. Notably, the 2n d and 3r d respondents have not filed any affidavit in reply and, at the hearing, they informed the Court through their learned counsel Mr. Shaaban Marjan that, they were supporting the application. Despite being duly served with the record of application and notice of hearing, the 4th respondent did not appear at the hearing. He had not filed any affidavit in reply too. The matter, therefore, proceeded in his absence. Mr. Lwijito Ndelwa, learned advocate who represented the applicants started his submissions by adopting the notice of motion and the facts in the affidavit in support thereof. He submitted that as per the requirements under rule 10 of the Rules, the applicants have, by an affidavit, established sufficient cause for extension of time based on illegality and time spent in conducting search and preparation of the necessary documentations for the application. On illegality, he submitted, while the decision directly affected the applicants inasmuch as it had lifted the corporate veil of the 2n d respondent and held them responsible to make the decree in question good, neither of them was impleaded in the 3

proceedings of the HC. They were not served with any summons that would enable them to enter appearance and defend the application too. In effect, he submitted, the applicants were denied a right to be heard, an omission which constitutes an element of illegality as per our decision in Antony Tume Makani & Another v. Durice Rwakatare ( Civil Reference No. 33 of 2023) [2025] TZCA 627. In his humble view, in accordance with the principle in Azili Dalili v. Shakur Khalid (Civil Appeal No. 339 of 2020) [2023] TZCA 17943, TANZLII, illegality is a sufficient cause to warrant an extension of time. On the second ground, Mr. Ndelwa submitted, the applicants have by affidavit, accounted for the delay to pursue the intended action. He submitted, while referring to the affidavit that; because they were not parties to the proceedings, the applicants remained unaware of the existence of the decision. It was not until 20th November, 2024 that the 1s t applicant became aware of the same after being served with a notice of execution. The other applicants got the information from the 1s t applicant on 30th November, 2024. He clarified that while the period from 27th November, 2024 to 1s t December, 2024 was utilized for collection of the relevant documents from the office of the Registrar of the Companies and the HC, the period from 1s t December, 2024 to 3rd December, 2024 was spent to study the collected documents. He submitted further that,

the period between 4th December, 2024 to 7th December, 2024 was used to prepare court documents. He concluded, therefore that, applicants acted diligently and without negligence, to take necessary steps in pursuit of the intended application as soon as they became aware of the existence of the decision. In his rebuttal, Mr. Mwang'enza Mapembe, learned advocate for the 1s t respondent, questioned the competence of the application on account that the 3rd respondent who was not a party to the decision has been joined as a party to the application without leave of the court. Relying on our decision in Salim Amour Diwani v. the Vice Chancellor Nelson Mandela African Institute of Science and Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA, TANZLII, Mr. Mapembe urged us to strike out the application for being incompetent. On the merit of the application, while admitting that the applicants have accounted for the delay up to 7th day of December, 2025, Mr. Mapembe was of the contention that the period between 7th day of December, 2025 to 13th day of December, 2024 when the current application was filed has not been accounted for. On illegality, Mr. Mapembe submitted that, as the applicants were not parties to the decision, they cannot complain to have been denied a right of hearing, as such right would be afforded to them during execution. After all, he submitted, since it is the directors who 5

ordinarily run the day to day businesses of a company, and, in view of the fact that the company was duly served with the relevant summons, the applicants cannot be heard complaining that they were denied a hearing. Responding on the preliminary points, Mr. Ndelwa submitted that since the 3r d respondent was, like the applicants, directly affected by the decision, her joinder to the application was, in the nature of the intended application, obvious. He submitted that, much as the applicants could not in law force the 3r d respondent to join in the application as the applicant, the only available option was for her to be joined as the respondent. In his contention, therefore, the decision in Antony Tume Makani v. Rwakatare (supra) is distinguishable and inapplicable in the current matter. With respect, I entirely agree with him. For, as can be noted, in the above decision, the Attorney General who was added as a party without leave of the Court or the trial court, was neither a party nor privy to the decision sought to be faulted. We held that his joinder to the application was contrary to the well-established principle that '"parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that." In this case, though the name of the 3r d respondent appeared not in the heading of the decision, it was, as shown above, expressly 6

pleaded in the chamber summons as one of the persons against whom the relief was sought. Therefore, just as the applicants, the 3r d respondent was privy to the decision in question. As she could in law not be forced to join in the proceedings as the applicant, and, insofar as the issue involved in the intended revision is whether the decision could legally be made without her and the applicants being heard; her joinder as a respondent in the nature of this application is, for the interest of justice, exceptional, as there is, if I can use the principle in Antony Tume Makani v. Rwakatare (supra), "reason for not observing that/' It is on that account that I overrule the preliminary objection. Having resolved the preliminary issue, it is desirable to determine whether the applicants have been able to establish sufficient cause for extension of time as the law requires. For a start, I agree with Mr. Mapembe that the period from 7th December, 2024 to 13th December, 2024 has not, as the law requires, been accounted for in the affidavit or otherwise. On the point of illegality, however, it is without any doubt that the applicants have been successful. In a nature of the decision which lifted the veil of incorporation of the 2n d respondent in order that the applicants and the 3r d respondents would be held liable in their individual capacities in satisfaction of the first respondent's decree against the 2n d respondent, a prima facie case of denial of the right to be heard is

apparent. That, as per the principle in Antony Tume Makani & Another v. Durice .Rwakatare, is in itself an element of illegality. On that account and guided by the well-established principle in the Principal Secretary, Ministry of Defence and National Service v. Devram Valambia [1992] TLR 185, I find that this is a fit case to grant an extension of time solely on the ground of illegality. It is accordingly granted with costs. The application for revision should be filed within 45 days from the day hereof. DATED at DODOMA this 29th day of August, 2025. Ruling delivered this 29th day of August, 2025 in the presence of Mr. Innocent Mwelelwa learned counsel for the applicant, who also took brief of Mr. Shaban Martin for the 2n d and 3rd respondents, Mr. Mwang'enza Mapembe, learned counsel for the 1s t respondent, via virtual Court and Leopard Leopard Mabugo, Court Clerk; is hereby certified a true copy of the orinina| I. J. MAIGE JUSTICE OF APPEAL 8