Byblock Contractors Limited vs Salum Said Hamed (Civil Application No. 773/17 of 2024) [2024] TZCA 974 (21 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 773/17 OF 2024 BYBLOCK CONTRACTORS LIMITED ...................................... APPLICANT VERSUS SALUM SAID HAMED .................................................... 1 st RESPONDENT CROWN ACTION MART & COURT BROKER .................. 2 nd RESPONDENT (Application for extension of time to comply with the order of the Court to deposit a bank guarantee at the Court of Appeal, at Dar es Salaam) (Masoud, J.A.) dated the 20th day of August, 2024 in Civil Application No. 773/17 of 2024 RULING 15th & 21st October, 2024 ISSA. J.A.: This is an application made by way of notice of motion under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking extension of time to comply with the Court Order requiring the applicant to deposit a bank guarantee within 30 days. The application is supported by affidavits affirmed by Salih Akgun, the principal officer of the applicant. The application faced resistance from the 1s t and 2n d respondents who filed separate affidavits in reply.

Before getting down to the determination of the matter, I find it appropriate to narrate the factual background to the present application. The factual background goes thus: the dispute between the parties originated from the District Land and Housing Tribunal for Kinondoni (the DLHT) where the 1s t respondent sued the applicant for recovery of arrears of rent and eviction vide Land Application No. 15 of 2023. The applicant and the 1s t respondent signed a five years lease contract starting from 1s t June, 2016 to 31s t May, 2021. The applicant continued to occupy the premises without paying rent even after the lease agreement had expired. Hence, the applicant's claim before the DLHT which in turn ordered the eviction of the applicant and payment of the rent for the period she occupied without the contract. Aggrieved, the applicant filed an appeal at the Land Division of the High Court (the first appellate court) vide Land Appeal No. 234 of 2023. The first appellate court dismissed the appeal on 25th August, 2023. Still aggrieved, the applicant lodged a notice of appeal to the Court on 29th August, 2023 and served the 1s t respondent on 8th September, 2023. The 1s t respondent, on the other hand, filed Execution No. 335 of 2023 to enforce the decree of the DLHT. At the same time she appointed the 2n d respondent to effect the eviction of the applicant.

In response, the applicant filed Civil Application No. 773 of 2024 at the Court for stay of execution, The Court on 20thAugust, 2024 granted the stay of execution subject to the applicant depositing in the Court within thirty days a bank guarantee for the sum of T7S. 191,664,000.00. the order was delivered on 22n d August, 2024. Unfortunately, the applicant did not deposit the bank guarantee on the stipulated time. Hence, on 22n d September, 2024 she electronically lodged the instant application for extension of time to deposit the bank guarantee. The hard copy of the application was lodged in Court on 25th September, 2024. At the hearing of the application, the applicant was represented by Ms. Precious Ahmad Hassan, learned advocate while the respondents had the services of Mr. George Dogani Mwalali, also learned advocate. Having adopted the notice of motion and the supporting affidavits, the applicant urged me to grant the application on the ground that: One, there was good cause for extension of time as the applicant applied for a bank guarantee at the NMB Bank (the bank) on 2n d September, 2024, but until 22n dSeptember, 2024 when the instant application was filed the bank had not supplied her with the requested bank guarantee. She attached to the application a copy of the letter submitted to the bank requesting a

bank guarantee. She, therefore, argued that the matter was not in her control. Two/ that she filed the instant application immediately when she realised that she will not be able to meet the time fixed by the Court to deposit the bank guarantee. Mr. Mwalali, on the other hand, having adopted the two affidavits forcefully opposed the present application. Firstly, he submitted that the applicant has failed to deposit the bank guarantee within time ordered by the Court. On 23rd September, 2024 the respondents made an enquiry to the Registrar of Court of Appeal (Annex SSH5) on whether the applicant had deposited the bank guarantee as ordered by the Court. The Registrar responded on 26th September, 2024 informing them that there was no bank guarantee which was filed in Court. Therefore, the respondents proceeded with the execution on 1s t October, 2024 and informed the DLHT. He added that, the applicant has already been evicted and the properties are in the hands of the respondents. Hence, the present application has been passed by events. Secondly, Mr. Mwalali argued that the applicant had failed to account for the first 10 days after the delivery of the Court order. The applicant wrote to the bank after the lapse of 10 days which has no explanation. To bolster his argument he cited the Court's decision in Lyamuya Construction Company Ltd v. Board of Registered

Trustees of Young Women Christian Association of Tanzania, (Civil Application No. 2 of 2010) [2011] TZCA 4 (3 October 2011, TANZLII) which held that the applicant has to account for each day of the delay. Thirdly, Mr. Mwalali argued that the applicant or her advocate has been negligent in complying with the Court order and that could not be a defence in this application. He buttressed the point by citing the Court's decision in William Shija v. Fortunatus Masha [1997] T.L.R. 213 where the Court held that negligence of an advocate could not constitute sufficient reason for the exercise of the Court's discretion. Lastly, he submitted that the execution has already been done and he urged the Court to dismiss the application. On the rejoinder, Ms. Hassan submitted that on 23rd September, 2024 when the respondents made the enquiry about the presence of the bank guarantee, the instant application was already in Court. Further, when the execution was purported to have been done on 1s t October, 2024 the present application was fixed for hearing, but the Court could not proceed ex parte and it ordered the respondents to be served. The respondents were accordingly served and they appeared on 3rd October, 2024. Ms. Hassan added that, it is not true that the applicant has been evicted, she is still there and she has the key to the building. Lastly, she

submitted that the cited cases are distinguishable and do not apply in the present circumstances. I shall now proceed to determine the matter on the basis of the arguments and legal principles raised. The application was brought under rule 10 of the Rules which empowers the Court to grant extension of time. It has been stated in various decisions of this Court that the power of the Court to extend time under rule 10 of the Rules, is both broad and discretionary. The discretion is judicial and it must be exercised according to the rule of reason and justice and not according to private opinion or arbitrarily. See - Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christians Association of Tanzania (supra). Further, the power under rule 10 is only exercisable if good cause is shown. Whereas there is no universal definition of what constitutes good cause, in exercising its discretion under the said rule, the Court is bound to consider the prevailing circumstances of the particular case and should also be guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. This position of law has

been restated by the Court in a number of cases including; The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R. 387 and Lyamuya Construction Co. Ltd (supra). Glancing at the application at hand, the issue I have been called to determine is whether the applicant has shown good cause for the extension of time. In this matter the order of the Court was very clear that, the applicant was granted a stay of execution subject to depositing a bank guarantee within 30 days. The order goes thus: "... the execution o f the decree o f the High Court dated 2$h August, 2023 in Land Appeal No. 234 is hereby stayed pending hearing and determination o f the intended appeal. The said stay is, however-f subject to the applicant depositing in the Court within thirty days of the delivery o f this ruling a bank guarantee for the sum o f T2S. 191,664,000.00. Accordingly, the said guarantee shall remain in force until full hearing and determination o f the intended appeal by this Court. In default, the order o f stay shall lapse automatically." (Emphasis supplied) The order of the stay of execution was delivered on 22n d August, 2024 which means the 30 days granted expired on 21s t September, 2024.

This is contrary to the averments in the applicant's affidavit that the present application was filed before the order of stay expired. In fact, the instant application was filed electronically on 22n d September, 2024 when the order of stay of execution had already expired. Therefore, there could be no issue of extension of time on something which is no longer there. Accordingly, this application is misconceived and is hereby dismissed with costs. It is so ordered. DATED at DAR ES SALAAM this 21s t day of October, 2024. The Ruling delivered this 21s t day of October, 2024 in the presence of Ms. Precious Ahmad Hassani, learned counsel for the Applicant and Mr. George Dogani Mwalali, learned counsel for the Respondents, is hereby A. A. ISSA JUSTICE OF APPEAL certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL