Absa Bank Tanzania Limited and Another vs Hjordis Fammestad (Civil Application No. 262/16 of 2024) [2024] TZCA 1179 (25 November 2024)

AT ARUSHA CIVIL APPLICATION NO. 262/16 OF 2024 ABSA BANK TANZANIA LIM ITED ............................. ............ ± s t APPLICANT JOSEPH JOHN NANYARO ..... ....... 2 nd APPLICANT VERSUS HJORDIS FAMMESTAD . ............. . ...................... . ....................... RESPONDENT (Application for extension of time to lodge a Notice of Appeal against the Judgment and Decree of the High Court of Tanzania Commercial Division at Arusha) (Fikirini. J.^ Dated the 8th day of October, 2019 in Commercial Case No. 6 of 2018 RULING 25th November & 3rd December, 2024 MASOUD, J.A.: There was an application before me lodged by ABSA Bank Tanzania Ltd and Joseph John Nanyaro, hereinafter the first and second applicants respectively, against one, Hjorddis Fammestad, the respondent. In the said application, the applicants sought extension of time within which to file application for extension of time to lodge a notice of appeal out of time against the judgment and decree of the High Court of Tanzania in Commercial Case No. 6 of 2018, dated 8th October 2019.

The application was made by way of a notice of motion pursuant to Rules 10 and 48(1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It was supported by the applicants' affidavits dated 28th March 2024. The application was opposed by the respondent, who lodged an affidavit in reply and a notice of preliminary objection to the effect that, the application is incompetent and legally flawed for violating Rules 45A(l)(a) and (c) and 47 of the Rules. The application had its genesis in the investment in the tourism sector by the respondent who is a dual Norwegian and US citizen. Following that investment, the respondent opened a bank account with the first applicant in due course. It is on the record that she authorized co-signatories, including the second applicant, to manage the account. She limited the second applicant's withdrawal rights to $10,000 per transaction, requiring her authorization for any amount exceeding that limit, which restriction was communicated to the bank (the first applicant). Notwithstanding the restriction, the second applicant withdrew a total of $335,121.59 without the respondent's consent. The bank processed these transactions notwithstanding the restriction and without verifying with the respondent.

The respondent, as a result, initiated legal proceedings against the applicants. The High Court (Commercial Division) resolved the matter against the applicants, having found that they were liable for misappropriation. In addition, it was found that the first applicant was negligent in allowing unauthorized transactions contrary to the restriction which was in place. The trial court decreed that the applicants were jointly and severally liable for the withdrawn amount, awarding the respondent a total of $335,121.59, along with interest and costs. As the applicants were dissatisfied with the judgment, they lodged a notice of appeal, and subsequently, a memorandum of appeal in respect of Civil Appeal No. 30 of 2020, which was, however, struck out for being lodged out of time. The applicants then filed an application for extension of time to file notice of appeal out of time before the High Court (Commercial Division) in Arusha via Misc. Commercial Application No. 11 of 2022 (i.e the first bite application), which was, in the end, struck out on 28th October, 2022 for want of jurisdiction. The said application was so struck out because the High Court was of the considered view that the judgment and decree of the trial court sought to be appealed against by the applicants were already a subject of a pending cross-appeal before the Court of Appeal.

Subsequent to the foregoing, the applicants lodged a second bite application, namely, Civil Application No. 695/16 of 2022, in the Court of Appeal on 11th November 2022, seeking extension of time to lodge a notice of appeal out of time. The respondent successfully raised a preliminary objection to the effect that, the application was untenable as it was not supported by an affidavit of the second applicant. The said application was on 26th March, 2024 struck out for that reason. Consequently, the applicants lodged the instant application seeking extension of time within which to lodge the second bite application for extension of time to lodge notice of appeal out of time. At the hearing, the respondent who was represented by Mr. Salimu Juma Mushi, learned advocate, prayed for leave to withdraw the notice of preliminary objection. The prayer was readily granted as it was not contested by Dr. Onesmo Kyauke, learned advocate who appeared for the second applicant and had also Mr. Mpaya Kamala's brief for the first applicant with instruction to proceed. Accordingly, the notice of preliminary objection was marked withdrawn. After adopting the applicants' affidavits in support, Dr. Kyauke made his oral submission in respect of the merit of the application which was threefold and was, essentially, reiterated in his eventual rejoinder

adding that the claim of existence of illegalities in the impugned judgment was not addressed and therefore not denied by the respondent. Firstly, Dr. Kyauke submitted that the delay was technical, as the first application was lodged timeously only to be struck out on a technical ground, as outlined in paragraph 6 of the first applicant's affidavit and paragraph 7 of the second applicant's affidavit. Secondly, there was, he submitted further, no negligence on the part of the applicants, as after the second bite application was struck out, they took only 23 days to rectify the error and file the current application, referring to paragraphs 5 and 6 of the affidavits of the first and second applicants, respectively. Lastly, the decision sought to be challenged in the intended appeal is, the learned advocate argued, fraught with illegalities that necessitate intervention of the Court to address and resolve them as detailed in paragraphs 8 of the notice of motion, paragraph 5 of the first applicant's affidavit, and paragraph 6 of the second applicant's affidavit. Indeed, in his oral submission, Dr. Kyauke expounded on the details of the ground of illegalities, allegedly, characterizing the decision of the trial court sought to be challenged if the applicants would be

granted the sought extension of time and successfully lodge and prosecute the intended second bite application. Of significance, when probed by me, Dr. Kyauke admitted that the applicant would, if the instant application for extension of time is allowed, raise the ground of illegalities as a reason for seeking extension of time to lodge notice of appeal out of time in the intended second bite application. Dr. Kyauke was of the view that the ground could equally be raised at this stage as a justification warranting me to extend the time. In response, Mr. Mushi attacked the application, saying that the applicants' application in Misc. Application No. 11 of 2022 was struck out on account of their negligence having failed to comply with the proper procedure. He further brought to my attention the delay of 23 days which was not accounted for and hence failure by the applicants to account for the entire period of delay as is required by the law, citing in support the case of Elius A Mwakalinga v. Domina Kagaruki and 5 Others [2024] TZCA 1052 (5 November 2024) and Azania Bank Limited v. Peter Muhalle Lolo & Others [2024] TZCA 856 (4 September 2024). As if that was not enough, it was his submission that the claim of existence of illegalities is misplaced and misconceived as it

has no bearing and relevance in the instant application, but the intended second bite application if the instant application would be granted. The law is now settled that application for extension of time may be granted upon demonstration of good cause for the delay, as stipulated in Rule 10 of the Rules. Hand in hand with that, it is also trite law that for an applicant to succeed in an application for extension of time, he must account for each and every day of the period of delay. See for instance, Azania Bank Limited (supra) and Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported). The issue then is whether the applicants in the instant application accounted for the period of delay and demonstrated sufficient cause for the Court to exercise its discretion in their favour. As to the ground of illegalities in the decision intended to be challenged, it is equally now settled that it would amount to good cause for extension of time if it is shown to be apparent on the face of the record, and it is shown to be of vital importance, and not one that would only make a good ground of appeal. See for instance, Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4 (3 October 2011).

After giving a critical thought to the applicants' averments in their respective affidavits as well as the oral submission by their learned advocate whilst mindful of the respondent's affidavit in reply, oral submission in reply by the respondent's counsel, as well as, the position of the law restated herein above, I am of the finding that the applicants had indeed advanced reasons in their endeavour to convince me to exercise my discretionary powers in extending time in their favour. However, the issue is whether the applicants have, in so doing, accounted for the period of delay and thus shown good cause warranting granting the extension of time. As there is a ground of illegalities raised, the other issue is whether the same is relevant in the circumstances of the application at hand. Regarding the applicants’ assertion of flaws due to illegalities and irregularities in the High Court's decision, I find that it is meritless in this application. Such a claim is, in the instant application, not relevant but in the second bite application if the instant application is granted. The applicants' counsel was indeed in agreement that the applicants would raise the ground in the second bite application should this application be granted. I am, increasingly, of that view because the present application was filed after the striking out of the second bite application in which

the allegation of a ground of illegalities characterizing the decision sought to be challenged ought to be raised. Thus, the allegation of illegality has no bearing on the delay that resulted after that application was struck out on 26th March, 2024 which delay is a subject matter of the instant application. For such reasons, I am inclined not to grant the sought extension based on that allegation which has prematurely been raised in this application. Concerning the applicants' period of delay in lodging the application for extension of time to lodge a notice of appeal out of time, it is evident that the second bite application was struck out on 26th March 2024. Thereafter, the current application was filed on 19th April, 2024 that is 24 days later, and not within the permissible timeframe of 14 days as per Rule 45A of the Rules, if I were to buy the argument by Dr. Kyauke on the technical delay associated with the striking out of the second bite application on 26th March, 2024 after being lodged on 11th November, 2022, following the striking out of the first bite application on 28th October, 2022 as aforesaid. Admittedly, this delay warrants a detailed account of each day of delay, which the applicants failed to furnish in the affidavits in support. Indeed, the learned counsel for the applicants could not pinpoint any paragraphs of the affidavits in support

accounting for the period of the delay when I invited him to do so. In fact, he admitted that, particulars accounting for the said delay were nowhere to be found in the affidavits of the applicants. Although Dr. Kyauke seemed to suggest that the application was lodged immediately after being prepared on 28th March, 2024 as indicated in the notice of motion and not 24 days later, there was, however, nothing shown to persuade me to disregard the record before me indicating that the application was filed on 19th April, 2024 which is 24 days later. It is trite that even a single day of delay must be accounted for, as emphasized in numerous cases. In the case of Azania Bank Limited (supra) relied on by the respondent's counsel which I am herein guided by, the Court cited with approval the case of Bushiri Hassan (supra) where it was emphasized and held that delay of even a day must be accounted for, otherwise there would be no point of having rules prescribing time within which certain steps have to be taken. As already shown, the applicants did not in the instant application comply with that principle, having failed to account for each day of the stated period of delay. This means that the applicants failed to furnish the necessary materials which I could have taken into account in considering exercising my discretion in favour of the extension of time sought. 10

With the foregoing findings and deliberations, the present application is devoid of merit for failure to show good cause warranting granting of the extension of time within which to lodge an application for extension of time to lodge notice of appeal out of time. I am, as a result, constrained to dismiss it with costs. It is so ordered. DATED at ARUSHA this 3rd day of December, 2024. The Ruling delivered this 3rd day of December, 2024 in the presence of Ms. Alfredina Manga, holding brief for Dr. Onesmo Kyauke, learned counsel for the Applicants, also holding brief for Mr. Salimu Mushi, learned counsel for the Respondent, is hereby certified as a true copy of the original. B. S. MASOUD JUSTICE OF APPEAL E. G. MRANGU SENIOR DEPUTY REGISTRAR COURT OF APPEAL