Samson Isucha Ng'walida & Another vs Stanslaus Masunga Nkola & Others (Civil Application No. 596/08 of 2024) [2025] TZCA 929 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT POPOMA CIVIL APPLICATION NO. 596/08 OF 2024 SAMSON ISUCHA NG'WALIDA ...................... . ....................... 1 st APPLICANT BHAWESH CHANOULAL GANPECHA.............. ....................... 2 nd APPLICANT ASHVIN KESHAVBHAI PATEL ............................. ..................3 rd APPLICANT PARUL BHAVESH GANPECHA ............................................ ,.4™ APPLICANT VERSUS STANSLAUS MASUNGA NKOLA ............ . ............................ 1 st RESPONPENT BENJAMIN JOSEPH NCHORE ........................ . ............ . 2 nd RESPONPENT MAPUHU MULOLA NKINPA ............................. . ................ 3 rd RESPONPENT NYARUGUSU MINE LIM ITEP ............................................ 4™ RESPONPENT (Application for Extension of time to file Revision of the Pecree and Settlement Peed of the High Court of Tanzania, at Mwanza) (Ismail, J J dated the 4th day of October, 2021 in Civil Case No. 20 of 2019 RULING 27th& 29th August, 2025 MLACHA, 3.A.: By way of notice of motion made under rule 2 and 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicants, Samson Isucha Ng'walinda, Bhawesh Chandulal Gandecha, Ashvin Keshavbhai Patel and Parul Bhavesh Gandecha (the 1st, 2n d , 3rd and 4th appellants, respectively) are seeking for extension of time to file an application for revision against the decree of the High Court of Tanzania at Mwanza in i

Civil Case No. 20 of 2019 dated 01/11/2021. The notice of motion is supported by affidavits of the applicants and their advocate. The respondents, Stanislaus Masunga Nkola, Benjamin Joseph Nchore, Maduhu Mulola Nkinda and Nyarugusu Mine Limited (the 1st, 2n d , 3rd and 4th respondents respectively) are resisting the application and have filed a joint affidavit in reply. The factual background of the case can be presented briefly as follows: The 4th Respondent sued the 1st, 2n d , and 3rd Respondents at the High Court of Tanzania at Mwanza in Civil Case No. 20 of 2019. It sought for an order to restrain the 1s t, 2n d and 3rd respondents from interfering with the company's mining operations. The suit was referred to mediation where a Deed of Settlement was signed on the 04/10/2021. It was later registered in the High Court where a decree dated 01/11/2021 was drawn. The decree has 4 orders, including an order that the suit was marked withdrawn. Subsequent orders touched the interests of the applicants who were not parties in the suit. The applicants became aware that their rights in the 4th respondent were determined in their absence between 22/06/2022 and 27/06/2022 when they met their counsel who enlightened them of the illegalities in the Deed of Settlement and the decree. They filed Civil Application No. 417/08 of 2022 seeking an extension of time to apply for revision but it was struck out on the 26th 2

day of May, 2023, for lacking a supporting affidavit of the 4th applicant. They thereafter filed Miscellaneous Civil Application No. 431/08 of 2023 which was also struck out on the 26th day of July, 2024, for amending an affidavit without leave of the court. Still undaunted, the applicants have filed this application seeking an extension of time to file an application for revision against the decree of the High Court. The grounds upon which this application is based, as reflected in the notice of motion, can be paraphrased and reduced to three grounds namely; one, that, the decree which was drawn from the Deed of settlement shows that the suit was withdrawn but has other orders in the decree showing that the suit is still pending; two, that, the applicants were not parties in the case which involved the respondents but yet, orders were made against them; and three, that, the applicants were condemned unheard. The applicants were represented by Dr. Rugemeleza Nshala, learned advocate whereas the respondents were represented by Messrs. Kasimu Gila and Akram Adam. Hearing of the application was done online through our virtual court systems. On taking the floor, while adopting the contents of the affidavit supporting the application and written submissions filed in terms of rule

106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), Dr. Nshala contended that the Deed of Settlement and the decree which was drawn there from showed that the suit was withdrawn but has other orders which show that the suit is still pending. He contended that, the existence of orders which followed after the withdrawal of the suit is an illegally which calls the attention of the Court in the revision and can be used as a base upon which time can be extended. He went on to submit that, the applicants were not parties in the case which involved the respondents but yet, orders were made against them. This is the second illegality for which an order for extension of time can be made. He contended further that, looking through the Deed of settlement and the decree one can find that the applicants were condemned unheard constituting a third illegality in the matter. He cited the case of Principal Secretary Ministry of Defence and National Service v. Devram Valambia [1992] TLR 181 to support the contention that where a point of law at issue is the illegality or otherwise of the decision being challenged, that is a sufficient reason within rule 10 of the rules upon which time can be extended. Further reference was made the case of Motor Vessel Sepideh and Pemba Island Tours and Safaris v. Yussuf Mohamed Yussuf and Another [2013] TZCA 2437 and TANESCO and 2 Others V. Salim Kabora [2017] TZCA 387 on the

same principle. Based on this submission, he urged me to grant the application. In response, while adopting the contents of the joint affidavit in reply, Mr. Adam submitted that the dispute in the case before the High Court was on shareholders who needed to prevent the 1st, 2n d and 3r d respondents to control activities of the company. He agreed that it was wrong to insert consequential orders after the withdrawal of the suit but hastened to contend that, the orders were necessary in the circumstance of the case to protect the interests of the parties. He contended further that, the existence of other orders after the withdrawal of the suit do not amount to an illegality because one need a long-drawn argument to establish the illegality. He cited the case of Bharya Engineering and Constracting Co. Ltd v. Hamoud Ahmed Nassor [2018] TZCA 339 and Moto Matiko Mabanga v. Ophir Energy PLC & 2 Others [2019] TZCA 135 to support the contention that the illegality must be seen without a long-drawn argument. He contended further that, the applicants who were directors of the 4th respondent were heard through the 4th respondent and the Board Resolution which they passed. He went on to contend that illegality of the decision was raised as an afterthought after being served with a notice to vacate from the mine site. He urged me to dismiss the application.

In rejoinder, Dr. Nshala contended that, illegality did not arise as an afterthought. It was discovered on 22/07/2022 in the meeting between him and the applicants. He contended further that, the Board resolution was for the purpose of filing the case only. It did not extend to entering to the Deed of Settlement and recording the decree. He submitted that, there was no permission to remove the applicants as shareholders in the company. He reiterated his earlier position that once the suit was withdrawn, there could be no consequential orders. He urged me to grant the application on the grounds stated. I had time to consider the submissions made before me in the light of the record. I am aware of the principles in the cited decisions. The germane issue for decision is whether there is an illegality in the decree of the High Court which can be used as a base upon which an order for extending the time can be made. H ie decree reads in part as under: "THIS COURT DOTH HEREBY ORDER THAT

1. The action Hied by the Plaintiff in the High Court is hereby marked withdrawn.
2. The plaintiff's current shareholders and directors submit to the defendant all the expenses, costs they have incurred in acquiring the shares, Government taxes and levies paid, for discussion by both 6

parties within 30 days from the date o f filing the Deed, the mode of payment to be agreed, and the current shareholders and directors transfer shares back to the defendants and so resign from directorship o f the company, and handing over the mine site to the defendants. 3. That nothing shall be construed as admission, by the company, of claims made by the plaintiff in the said action. 4. The parties record that, the terms and conditions in the deed are confidential and shall not be communicated to any person whatsoever other than the parties themselves and the relevant and necessary bodies or authorities. 5. That, the Deed o f Settlement filed in this court shall constitute a conclusive withdrawal of the action before the Court. My casual look of the decree has shown me that, the decree contains at least four illegalities, worth consideration by the Court in the revision and which can be used as a base upon which an order for extension of time can be granted. One, the suit was withdrawn but have subsequent orders vesting liability to the parties. Two, the orders in the decree vests responsibility to directors (applicants) who were not parties. Three, the applicants were condemned unheard. Fourth, the decree of

Court which is otherwise open to any member of public, is branded to be confidential. I thus agree with Dr. Nshala that, this application has merit and has to be granted. Based on the illegalities of the decree as intimated above, I grant an extension of 60 days within which the applicants can file their application for revision before the Court against the decision of the High Court. The applicants shall have the costs. It is ordered so. DATED at DODOMA this 29th day of August, 2025. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Rugelemeza Nshala, learned advocate for the Applicant also holding brief for Mr. Akram learned counsel for the Respondent via virtual Court and Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. 8