Mgombaeka Investment Company Limited & Others vs DCB Comercial Bank PLC (Civil Application No 1162 of 2024) [2025] TZCA 921 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO 1162 OF 2024 MGOMBAEKA INVESTMENT COMPANY LIMITED.....................1 st APPLICANT MGOMBAEKA SAIDI MGOMBAEKA ............................... . .......-2 nd APPLICANT NURU SAIDI MGOMBAEKA....................................................... 3R D APPLICANT VERSUS DCB COMERCIAL BANK PLC....................................................... RESPONDENT (Application for an order of extension of time within which the applicant can lodge application for Revision arising from the Ruling and Drawn Order of the High Court of Tanzania/ Commercial Division at Dar es Salaam) fNchimbi 3.^ dated the 10th day of October, 2014 in Misc. Commercial Case No. 179 of 2014 RULING 26th August & 29th August, 2025 MURUKE, J.A.: The present application, is for extension of time within which to file revision of the proceedings, Ruling, drawn Order and Decree of the High Court Commercial Division at Dar es salaam in combined Commercial Case No 83 of 2014 and Misc. Commercial Case No 179 of 2014. The application is supported by an affidavit of Mr. Mgombaeka Said Mgombaeka, Managing Director of the first respondent, and the second applicant, authorized by the third applicant to affirm an affidavit on her behalf. i

There is also an affidavit of Mr. Makarious J. Tairo learned counsel supporting an affidavit affirmed by the second applicant. The respondent filed affidavit in reply sworn by Mr. Alexender Mzikila, principal officer at the capacity of the Legal Manager. Briefly, the first applicant and the respondent entered into a loan agreement in which the latter advanced to the former an overdraft facility in the sum of T7S 130,000,000.00. The facility was secured by a legal Mortgage over landed property described as Plot No 63, Block "W", Ilala, Area Dar es salaam City, held under the Certificate of Tittle No 94181 (the mortgage property) as well as personal guarantees by the second and third applicants. It seems loan was not repaid as agreed, thus, the respondent instituted a summary suit in the High Court Commercial Division against the applicants (commercial case No 83 of 2014) for payments of TZS. 256,453,750.44 being amount due to the respondent from the applicant on account of overdraft facility advanced in 2013. The respondent also prayed for among others, a declaration that it was entitled to sell mortgage property following breach of the contract by the applicants. Upon being served with summary suit, the applicants filed Misc. Commercial Application No. 179 of 2014, seeking leave to appear and

defend the suit Trial Court after hearing both parties, on a ruling dated 10th October 2014, the Court dismissed the application and ordered as follows: It follows that the respondent is entitled to judgment as prayed for in the relief clause." According to the record the trial court did not compose judgment after the ruling though there is decree purported to be extracted from Civil Case No. 83 of 2014 as reflected on annexure msm-17 at page 3 of the proceedings on a Coram dated 18/ 08/2014 as reflected below: Court: See order in Mies. Commercial Case No. 179/ 2014. Sgd. Hon. Nchimbi. Judge. 18/8/2014 From the trial court remarks as above, then, Decree was prepared following application for leave to defend summary suit being refused. The decree without a Judgment in Commercial Case No 83 of 2014 and the ruling in the Misc. Commercial Case No. 179 of 2014 being mixed together is subject of intended revision, upon this Court granting orders sought in the Notice of Motion.

After several applications at different forum and level, the applicants filed Civil Appeal No, 63 of 2017 which on 25th April 2022 was withdrawn on accounts of the applicant's failure to attach copy of judgment in Commercial Case No. 83 of 2014. At the hearing of the application before me, Mr. Makarious 1 Tairo learned counsel appeared for the applicants and Mr. Kennedy G. Mgongolwa, also learned counsel represented the respondent. Upon being called to elaborate on the application, Mr. Tairo adopted the Notice of Motion, the supporting affidavit, together with written submission filed earlier, to form part of his oral argument. He submitted that, the application is predicated under Rule 10 of the Rules which empower the Court upon good cause being shown by the applicant, to extend the time limited by the Rules or by any decision of the High Court or Tribunal, for the doing of any act authorized or required by the Rules, whether before or after the expiration of that time. It is the discretion of the Court to extend the time in which to file an Appeal or Notice of Appeal. Such discretion, however, must be exercised judicially. In the exercise of such discretionary powers, the requisite condition that must be fulfilled by the applicant is that good cause must be given.

Mr. Tairo, further submitted that the affidavit in support of this application, expressly states the sequence of events which prevented/delayed the applicant from lodging a Notice of Appeal within time against the impugned decision. Paragraph 20 to 28 of the affidavit of Mr. Mgombaeka prove that the delay in filing present application is not attributed to by negligence or laxity on the part of the applicant, but was a technical one following withdraw of Civil Appeal no. 63 of 2017, together with the Notice of Appeal. The applicant's counsel submitted further that, in essence, the applicant in the said paragraphs of the affidavit established that a delay occurred when the Court delayed to supply copy of the judgment in Commercial Case No. 83 of 2014, until after two years in terms of the letter of the Deputy Registrar dated 10th October 2024, that there was no Judgment. Such delay falls within the meaning of technical delay as decided in William Shija v. Fortunatus Masha [1997] TLR 213. It was further submitted that deducing from the affidavit in support of the application, the Court will realize that after the Civil Appeal No. 63 of 2017, being withdrawn for lack of Judgment of the trial court, the applicants tirelessly took the necessary steps to be able to appeal, which included a request for documents necessary for the appeal purposes as

reflected from para 27 of affidavit in support of the application. Finally, Deputy Registrar responded that there is no judgment of the trial court sought to be challenged on a letter dated 16 October 2024 being after two years from when Civil Appeal No 63 of 2017 was withdrawn on 25 April 2022 The applicant's counsel insisted that, the sequence of events shows that the applicant was caught in a web of technicalities. The delay falls well within the definition of what amount to a technical delay. And, that Court should not shut the door because doing so will cause injustice, he then argued the Court grant extension for the applicant to file Revision as indicated in the Notice of Motion, On his part, Mr. Mgongolwa, resisted the application for want of good cause. He first adopted affidavit in reply filed on that behalf. In his oral submission, attacked applicants counsel submission for lacking merits. He insisted that as the record will show, the applicant institute Civil Appeal No. 163/2017 having satisfied that, they had the records required for appeal. Same appeal was found incompetent, thus, amended on 2019 to make it concreate. Yet 2022, the applicant withdrew the appeal for being incompetent, that proves lack of diligence on the part of the applicant, or negligence, which same cannot be a ground for extension of time. Given

the time spent as advised by the applicant discloses that, the applicant is making trials in different forums. Mr. Mgongolwa then insisted that the Court should not allow the parties who comes when they want and through the door or forum they wish. The respondent counsel further submitted that Annexure MSM-3 comprises proceedings, ruling and drawn order, while MSM-4 is a decree. The Ruling which is said to be problematic can be challenged by way of Revision. The applicant's counsel has said that they have accoutered days of the delay at paragraph 31 of affidavit in support of the application but failed to account for more than 19 days of the delay. In the end the respondent's counsel urged me to dismiss the application for want of merits. Having heard both counsel submission, issue for determination before me is as whether applicants have adduced sufficient cause to warrant this Court to grant extension of time to file Revision. Going through an affidavit in support of the application from paragraph 11 to 28 sufficient cause has been demonstrated. One; from 7th November, 2014 when lodged Notice of appeal stating the intention to appeal against decree in Commercial Case No. 83 of 2014, to when Civil Appeal No. 163 of 2017

was withdrawn for lack of copy of judgment, the applicants were pursuing their rights at different levels. That period of delay is what case laws describe as an excusable technical delay. See Salvand K. A. Rwegasira v. China Henan International Group Co Ltd, Civil Reference No 18 2006 (unreported), Zahara Kitindi & Another v. Juma Swalehe & Another (Civil Application No 4 of 2017) [2017] TZCA 196, Yara Tanzania Limited v. D. B. Shapriya and Co Limited, Civil Application No 498/16 of 2016, Vodacom Foundation v. Commissioner General ( TRA), Civil Application No 107/20 of 2017 (both unreported), Samweli Kobelo Muhula vs National Housing Corporation (Civil Appeal No302 of 2017) [2018] TZCA 33 to mention few. In Salvand Rwegasira (supra), for instance, the full Court quoted the holding and subscribed to the position taken by a single Justice of the Court that: "A distinction had to be drawn between cases involving reai or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeals were lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to instituted. In the present case, the applicant 8

had acted immediately after the pronouncement of the ruling o f the Court striking out the First appeal. In the circumstances an extension o f time ought to be granted" Similarly, in Mary Mchome Mbwambo and Another v. Mbeya Cement Company Ltd, Civil Application No. 271/01 of 2016. Court of Appeal of Tanzania at Dar es Salaam the Court had this to say at page 12 : "The applicants are, actually, saying that they were late because they spent a lot o f time diligently pursuing their rights in the two Courts. The sequence o f events and prompt steps taken by the applicants till when they lodged the instant application positively accounts for the delay. To shut the door will, in the circumstances, cause injustice." Further, in Emmanuel R. Maira v. The District Executive Director, Bunda District Council, Civil Application No. 66 of 2010, Court of Appeal of Tanzania at Dar es Salaam) the Court had this to say at page 6 of the typed Judgment: "...where a party is shown to have diligently taken steps only to be caught up in web of

technically and even if the error is shown to have been caused by an advocate, a sufficient cause is generally taken to have existed for the delay." Two; in the matter at hand, as said earlier, while the incompetent appeal was withdrawn on 25 April 2022, following applicant's failure to attach copy of the judgment subject of the appeal, applicants' counsel wrote several letters to be supplied with the copy of Judgment as indicated by series of the letters from annexure MSM-12 to annexure MSM -18, a letter dated 2n d May 2024, received by the Court on 3rd May 2024. Three; it was until 16th October, 2024 when the Deputy Registrar replied applicants advocate series of letters informing him that they went through the proceedings in Commercial Case No 83 of 2014 and found that there was no judgment that was written by the High Court. Four; it is from that date 16th October 2024, then applicant filed present application on 23 October 2024, being after 7 days from when replied by the Deputy Registrar on none existence of the trial court Judgment. It is worth noting that supply of the judgment, Decree, Ruling, drawn Order is the business of the Court. It is an internal affair so to speak. Neither the applicants nor the respondent is to blame. Applicants cannot be blamed for period from 25th April 2022 to 16 October 2024, 10

when the applicant replied by the Deputy Registrar that there is no judgment by the trial court. The issue now is, whether filing of the present application after 7 days from the reply by the Deputy Registrar annexure MSM-19, the applicants acted promptly. The test employed in determining promptness in my view is that of reasonableness. That is, whether the time taken by the applicants to file the application for extension of time was reasonable. In my view, this is a question of fact which has to be decided on case to case basis. In Samwell Musa Ng'omango (as legal representative of the Estate of the late Masumbuko Mussa) v. A.I.C (T) Ufundi, Civil Appeal No 26 of 2015 (unreported) a Single Judge of the Court having considered the circumstances of the case observed that: "In my view the applicant acted promptly and diligently having filed the present application in less than 20 days since he obtained the certificate." In the circumstance of the matter at hand and considering the fact that the applicants have tirelessly, prosecuting their case and that issue of none existence of the Judgment the trial court has a hand on it, I think seven days was reasonable for preparation of a meaningful application at hand. To me, the applicants acted promptly to file present application for ii

extension of time to file Revision. Thus, the application is accordingly allowed. Applicant to file intended Revision within 45 days from Monday 1s t of September 2025. In the circumstance of this case, each party to bear own costs. It is so ordered. DATED at DODOMA this 29th day of August, 2025. Z. G. MURUKE. JUSTICE OF APPEAL Ruling delivered this 29th day of August, 2025 in the presence of Mr. Daniel Yona holding brief of Mr. Makarious J. Tairo, learned counsel for the applicants and Mr. Kennedy G. Mgongolwa, learned counsel for the respondent both through Virtual Court; is hereby certified as a true copy of the original. 12