Malima Manyasi Bundala vs KIUTA (1998) Limited (Civil Application No. 122/17 of 2023) [2024] TZCA 833 (28 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 122/17 OF 2023 DR. MALIMA MANYASI BUNDALA................................................... APPLICANT VERSUS KIUTA (1998) LIMITED................................................................. RESPONDENT (Application for extension of time to deposit security for the due performance of a decree pursuant to the order of the Court) (Muqasha. Galeba and Mashaka. JJA.^ dated the 19th day of August, 2022 in Civil Application No. 44/17 of 2020 RULING 5th & 28th August, 2024 MDEMU. J.A.: This application is for extension of time. On 19th August, 2022, this Court (Mugasha, Galeba and Mashaka, JJA) granted the uncontested application for stay of execution, the consequence of which execution of the decree in Land Case No. 75 of 2014 was stayed. The stay order was subject to the condition that, the applicant should deposit in Court a bank guarantee for Tanzanian Shillings fifty-four million, eight hundred thousand (TZS. 54,800,000.00) only within ninety (90) days of the order. Unfortunately, to the expiry of the prescribed period, no any bank

guarantee was ever deposited by the applicant, hence this application for extension of time on the following prayers as contained in the notice of motion:

1. The Court be pleased to make an order extending tim e fo r 45 days for the applicant to furnish security.
2. The Court be pleased to make an order varying condition in its own Court order dated 19h August■ , 2022 relating to deposit o f security by bank guarantee o f TZS. 54,800,000.00 and instead the Court be pleased to order the applicant to furnish security in the form o f a firm commitment to the Court by providing a Certificate o f Title No. 71022 in the name o f JULIANA RUBARA BUNDALA in respect o f landed property described as Plot No. 80 Block 3 Mivum oni in Kinondoni M unicipality, Dar es Salaam Region as security for the due performance o f the decree o f the High Court (Mgonya J.) dated 2 8 h February, 2019 in Land Case No. 75 o f 2014 and in com pliance with the order o f the Court dated I9 h August, 2022.
3. The Court be pleased to fix a date for hearing o f this civ il application urgently in the circum stances o f this matter. Upon being served with the notice of motion and the supporting affidavit, along with the filing of an affidavit in reply, the respondent also 2

filed a notice of preliminary objection regarding the competence of the application to the effect that: The application is incom petent for com bining two unrelated prayers as, prayer N o .l for extension o f time falls within the jurisdiction o f a single Justice o f Appeal while prayer No.2 fails within the jurisdiction o f the Court For the reasons soon to follow, I had to hear the parties both in the preliminary objection and the substantive prayers in the main application. This was on the 5th August, 2024 in which, the applicant, who also appeared at the hearing, was represented by Dr. Chacha Murungu and the respondent had the services of Mr. William Ogunde, both learned advocates. This ruling therefore is in respect of both the raised preliminary objection and the substantive part of the application for extension of time. Submitting in support of the preliminary objection, Mr. Ogunde stated that, the application sought in the notice of motion is an omnibus one for containing two unrelated prayers. He mentioned those two prayers to comprise of, one, an extension of time which is within the jurisdiction of a single Justice of Appeal and two, an order for variation of conditions of the stay order which, according to the learned counsel, is within the jurisdiction of the Court in terms of rules 28 and 64 (2) of the Tanzania 3

Court of Appeal Rules, 2009 (the Rules). Reference was made to me by the learned counsel in the case of Issa N.S. Marombe v. Adereheman S. Mbwana, Civil Application No. 225/17 of 2023 (unreported) urging that, the application be struck out with costs for being incompetent. Dr. Murungu resisted the preliminary objection on account that, by virtue of rule 11 of the Rules as amended by Government Notice No. 188 of 2024, both prayers in the notice of motion are within the jurisdiction of a single Justice of Appeal. Consistent to that, the complained variation in the order of the Court is in respect of matters relating to stay of execution which again are within the mandate of a single Justice of Appeal. Consequently, he urged me to hold that, the application is not an omnibus one as fronted in the notice of preliminary objection, thus I should overrule the preliminary objection. Alternatively, should I find the application is an omnibus one, the learned counsel urged me to deploy the principles stated in Ally Salim Said (Administrator of the Estate of the Late Antar Said Kleb) v. Idd Athuman Ndaki, Civil Application No. 450/17 of 2021 (unreported) where a single Justice of Appeal was allowed to pick and determine a prayer in the notice of motion which is within his/her jurisdiction. He thus 4

argued that, the prayer regarding the extension of time as contained in the notice of motion should be treated and be determined along that stance. In the premises, the learned counsel urged that, the preliminary objection is devoid of merits hence be liable for dismissal. In a brief rejoinder, Mr. Ogunde reiterated what he submitted in chief and added thereafter that, the argument that I should pick and determine one prayer in the omnibus application should not be pursued because it was not the ratio decidendi in Ally Salim Said (supra) but rather, it was the argument of the parties. He therefore urged me not to rely on it. I have heard and duly considered submission of the learned counsel for and against the preliminary objection raised. It is clear from the record of this application that, on 19th August, 2022, the Court stayed execution of the decree in Land Case No. 75 of 2014 on condition that, the applicant should deposit in Court a bank guarantee for Tanzanian Shillings fifty-four million, eight hundred thousand only (TZS. 54,800,000.00) within ninety (90) days of the order. It is not contested that, to the expiration of the said order, the applicant was yet to deposit the said bank guarantee. Again, in the supplementary affidavit, the applicant deposed to have secured the said bank guarantee and deposited it in Court, lately though. 5

Looking at this state of affairs, two things quickly come to my attention. One relates to the prayer in the notice of motion on variation of the Court order in respect of the bank guarantee, along with the contents of the supplementary affidavit in which the applicant categorically deposes to have had secured the said bank guarantee. Under the circumstances, the prayer in respect of variation of the order of the Court to deposit a certificate of tittle instead of a bank guarantee, in my considered view, ceases to have effects. I am saying so because the variation sought for followed failure of the bank to issue the bank guarantee in compliance with the Court's order. Essentially, given the premises, determining this preliminary objection in the manner Mr. Ogu nde pu rsues, con notes a Iso a determination of the application for extension of time. This is so because, first, failure by the bank to issue a bank guarantee in time as argued, is relied upon by the applicant as a sufficient cause for the delay and second, in terms of rule 10 of the Rules, time may be extended before or after the occurrence of the act. Two, since what was sought for in the prayers for the variation of the stay order was in respect of matters relating to stay of execution, a 6

single Justice of Appeal has the requisite jurisdiction to deal with the matter in terms of the amendment to rule 11 of the Rules I stated above. However, even if it was not, the alternative remedy which Dr. Murungu urged me to accommodate, that is, to pick and determine a prayer which is within my jurisdiction is untannable because, as held in Hamis Mdida and Another v. the Registered Trustees of Islamic Foundation (Civil Application No.330/11 of 2022) [2023] TZCA 17721 (4 October, 2023) TANZLII, it is not the duty of courts to pick grains from the chaff. In that understanding, the case of Issa N.S. Marombe (supra) is distinguishable because, first, it is in respect of an appeal before the Court while the instant matter is an application before a single Justice of Appeal. Second, a single Justice of Appeal cannot entertain an appeal whereas in terms of rule 11 of the rules as amended, a single Justice of Appeal has jurisdiction to determine an application for stay of execution and any matters allied to it. I therefore find nothing omnibus in the notice of motion which Mr. Ogunde tried to impress me to hold so. Having observed so, I find no merit in the preliminary objection, accordingly, it stands to be overruled. 7

Reverting to the substantive part of the application, Dr. Murungu sought reliance to the contents of the supporting affidavit and the subsequent supplementary affidavit of the applicant to form part of his oral submission. He thereafter submitted that; the delay was out of the applicant's control because it is the bank which ultimately delayed in issuing the bank guarantee, thus made the applicant to contravene the order of the Court issued on 19th August, 2022. Regarding accounting for the days of the delay, the learned counsel argued that, the applicant did not sit on his rights as he regularly followed up the matter with the bank before the lapse of the ninety (90) days as ordered by the Court. In the course of that follow ups, the guarantor only made fruitless promises, the learned counsel added. This to him was a sufficient cause thus implored me, while making reliance to the case of Exim Bank (Tanzania) Limited v. Abeed M. Manji, Civil Application No. 677/08 of 2020 (unreported) to grant the prayers sought for in the notice of motion. Mr. Ogunde contested the application. As was to Dr. Murungu, he also pressed reliance on the contents of an affidavit in reply deposed by one Pastory Gabriel Kyombya, the principal officer of the respondent. The

counsel's main thrust in resisting the enlargement of time hinged on failure on the part of the applicant to account for each day of the delay. He submitted that, according to annexture MMB3 annexed to the supplementary affidavit, the applicant informed his banker on his inability to comply with the terms of the guarantee on 15th November, 2022 well before the expiry of the ninety (90) days period so ordered by the Court. He therefore queried as to what was up on the part of the applicant from that date to 3rd March, 2023 when he filed the instant application to have time extended. This, to the learned counsel, was a failure of the applicant to account for what he was doing for almost five (5) months. In it therefore and while making reliance to rule 10 of the Rules and the case of Exim Bank (Tanzania) Limited (supra), the learned counsel urged me to hold that, the applicant failed to indicate sufficient cause, thus the application be dismissed with costs. Fronting a brief rejoinder, Dr. Murungu argued that, as was in Exim Bank (Tanzania) Limited (supra), the respondent did not indicate if he would suffer anything in case time to furnish the bank guarantee is enlarged. He further added that, the extension of time would also be in 9

the interest of the respondent as well for it would have the effect of covering future risks associated in the realization of the said decree. I think the argument of both counsel in support of and resisting the enlargement of time should not detain me longer than necessary. I am saying so because according to the depositions in the supplementary affidavit, specific in paragraph 4, the National Bank of Commerce (NBC) at NBC House issued a bank guarantee of Tanzanian Shillings fifty-four million, eight hundred thousand only to the applicant on 16th June, 2023. The said bank guarantee was deposited by the applicant in Court on 19th June, 2023. These facts stand uncontroverted because the respondent did not counter them for failure to file a reply to the supplementary affidavit. This being the case, I have two observations to make. One, I agree with the applicant's counsel that the delay to issue the bank guarantee was beyond the applicant's control. In that understanding, the applicant has therefore managed to demonstrate good cause for failure to deposit to the Court a bank guarantee within ninety (90) days as ordered. Two, rule 10 of the Rules is loud and clear that a party seeking extension of time on good cause may do so before or after the occurrence or the doing of an act. See in Exim Bank (Tanzania) Limited (supra) 10

at page 10. In the application at hand, the applicant deposed in the supplementary affidavit to have secured the bank guarantee and deposited it in Court. But, as I said above, he made the deposits beyond the dictates of the Court's order. That besides, and guided by rule 10 of the Rules, the applicant has managed to demonstrate good cause, accordingly, this application is allowed. For that matter, time to deposit bank guarantee is extended for a period of forty-five (45) days from the issuance of this decision. Cost of the application to abide the outcome of the appeal. It is so ordered. DATED at DAR ES SALAAM this 27th day of August, 2024. G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 28th day of August, 2024 in the presence of Mr. John Chogoro, holding brief for Dr. Chacha Murungu, learned counsel for the Applicant and Mr. Wison Edward Ogunde, learned counsel for the Respondent, is hereby certified as a true copy of the original.