KCB Bank Tanzania Limited vs VODACOM Tanzania Limited (Misc. Civil Application No.557/16 of 2022) [2023] TZCA 17831 (14 November 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 557/16 OF 2022 KCB BANK TANZANIA LIMITED ..................................................APPLICANT VERSUS VODACOM TANZANIA LIMITED........................................... RESPONDENT (Application for Extension of Time to file Notice of Appeal against the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam) fSonqpro, J ._ ) dated the 31s t day of March, 2017 in Commercial Case No. 43 of 2011 RULING 7th & 14th November, 2023 KEREFU. J.A.: The applicant, KCB Bank Tanzania Limited, has lodged this application seeking orders for extension of time within which to lodge a notice of appeal against the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam, (Songoro, J.) dated 31s t March, 2017 in Commercial Case No. 43 of 2011. The application is brought by way of notice of motion lodged on 19th September, 2022 under Rule 45A (1) (a), (2) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The grounds canvassed in the notice of motion can be conveniently paraphrased as follows, that:

(a) The applicant's application for extension o f time filed in the High Court, Commercial Division via Misc. Commercial Application No. 60 o f 2022 was heard and determined on 29* August, 2022; (b) That, the applicant's failure to file notice o f appeal within the prescribed period o f time was caused by sufficient reasons, as: (i) The notice o f appeal and the letter requesting for certified copies o f the High Court's documents for purposes o f lodging an appeal were lodged within the time prescribed by the law, hence the appeal was registered as Civil Appeal No. 295 o f 2017; (ii) The memorandum o f appeal and the record o f appeal was accompanied with a defective certificate o f delay, hence the applicant had to seek leave to file supplementary record o f appeal to include a valid certificate o f delay; (Hi) That, the said certificate o f delay and the letter notifying the applicant that the documents were ready for collection could not be availed in time to allow the applicant to prepare and lodge supplementary record o f appeal as ordered by the Court on 13th July, 2021; (iv) That, on 2$h April, 2022 when the appeal was called on for hearing, the applicant prayed to withdraw it to restart the process afresh; (v) That, the Order o f the Court to that effect was issued to the applicant on Friday, 29h April, 2022 and thus, 2

lodged the current application on Monday, 2nd Aprii, 2022 ; (vi) That, the applicant has all along been vigilant in prosecuting the matter in court's corridors and never stayed idle. It was the imperfection in the record o f appeal that led to the withdrawal o f the appeal which was partly contributed by the High Court, thus; (vii) That, the delay is technical one as opposed to actual delay which the Court had since considered it to be a sufficient ground for extension o f time. (c) That, there are serious questions o f law and fact to be addressed on appeal. In particular, the failure by the learned trial Judge to appropriately and adequately evaluate credence o f evidence o f DW1, exhibits D l, D2, D3 and D4. Had the learned trial Judge properly evaluated the evidence on record, would have found that the applicant did not act negligently. The Application is supported by an affidavit deposed by Elisa Abel Msuya, learned counsel for the applicant. On the other hand, the respondent has filed affidavit in reply opposing the application. As intimated above, the application traces its origin from the decision of the High Court of Tanzania, Commercial Division, (Songoro, J.) dated 31s t March, 2017 in respect of Commercial Case No. 43 of 2011 which was decided in favour of the respondent. Aggrieved, the applicant, timely lodged a notice of appeal on 10th April, 2017 and also

requested for the certified copies of the High Court's documents which were availed to her on 16th August, 2017. Having perused the said documents, the learned counsel for the applicant discovered that the name of the applicant was inadvertently mis-spelt in the judgment and decree. On 11th September, 2017, when parties appeared before the High Court, the learned counsel for the applicant informed the learned trial Judge of the said error which was outrightly corrected and the applicant was issued with corrected version of the said documents. Unfortunately, it was discovered further that, the judgment and the decree contained yet another discrepancy, i.e the dates indicated were different from the actual date of pronouncement and delivery of the same. Thus, in his letter, dated 29th November, 2017, the learned counsel for the applicant notified the Registrar on the noted discrepancy and requested to be supplied with the corrected version. Upon receipt of the said letter, the said errors were corrected by the trial court on the same date. Subsequently, the Registrar issued a certificate of delay under Rule 90 (1) of the Rules to exclude the days used to prepare the said documents. On 13th July, 2021 when the appeal was called on for hearing, the learned counsel for the applicant discovered that the certificate of delay contained wrong dates of the applicant's letter. He thus prayed for leave, which was outrightly

granted, for him to approach the Registrar to correct the said error and lodge supplementary record to include a proper certificate of delay in the record of appeal. Subsequently, on 15th July, 2021, the said counsel wrote a letter to the Registrar to that effect. The said letter was followed by several reminder letters to the Registrar on the same subject dated 16th August, 2021, 3r d September, 2021, 10th November, 2021 and 8th April, 2022 without any success. As such, on 25th April, 2022 when the appeal was called on for hearing, the applicant was yet to comply with the order of the Court to lodge the supplementary record as the Registrar did not avail the correct version of the certificate of delay. In the circumstances, the learned counsel for the applicant prayed to withdraw the appeal for purposes of re-initiating the appeal process. The order of the Court to that effect was availed to the applicant on Friday, 29th April, 2022 and on Monday, 2n d May, 2022, he filed Misc. Commercial Application No. 60 of 2022 in the High Court seeking extension of time within which to lodge notice of appeal. However, the said application was dismissed for lack of merit on 29th August, 2022. Thereafter, the applicant requested to be supplied with the certified copies of the High Court's document in respect of the said application which were supplied to her on 14th September, 2022. Subsequently, the applicant lodged the current application on 19th September, 2022.

It is the applicant's contention that, the delay constitutes a technical delay as opposed to actual delay. That, the errors in the judgment and decree together with the defects in the certificate of delay were not occasioned by her and all were beyond her control, The applicant stated further that the impugned decision is tainted with serious and apparent errors which is also a sufficient reason warranting granting of extension of time. In her affidavit in reply, the respondent opposed the application by stating that, reasons submitted by the applicant do not constitute sufficient reasons to warrant the Court to grant extension of time. She thus prayed for the application to be dismissed for lack of merit. When the application was placed before me for hearing, the applicant was represented by Mr. Elisa Abel Msuya assisted by Ms. Regina Kiumba, both learned counsel whereas the respondent was represented by Mr. Lulinga Jonathan Lulinga, also learned counsel. It is noteworthy that the learned counsel for the parties had earlier on lodged their respective written submission and reply written submission in support of and in opposition to the application. Submitting in support of the application, Mr. Msuya commenced his submission by adopting the contents of the notice of motion, the 6

supporting affidavit and the written submission. He thereafter, briefly, narrated the historical background to the application as indicated above. He argued that, the applicant's delay to lodge the notice of appeal is in two segments. The first segment covers the period from 31s t March, 2017 when the impugned decision was delivered to 25th April, 2022 when the appeal was withdrawn. He contended that the delay in this segment constitutes a technical delay which is excusable, as opposed to the actual delay. To justify his argument, he referred me to paragraphs 2 to 11 of the affidavit in support of the application where the applicant clearly narrated all the steps taken as indicated above. Reinforcing his proposition, he cited the cases of Fortunatus Masha v. William Shija & Another [1997] T.L.R. 154, Emmanuel Rurihafi & Another v. Janas Mrema, Civil Appeal No. 314 of 2019 [2021] TZCA 332: [28 July 2021: TanzLII] and Philimon Simwandete Mbanga v. The Permanent Secretary Ministry of Defence & Another, Civil Application No. 168/01 of 2018 [2019] TZCA 152: [24 May 2019: TanzLII]. It was his argument that, since, in the instant application, the Civil Appeal No. 295 of 2017 was timely lodged but withdrawn on account of failure by the Registrar to issue proper certificate of delay, the said delay adequately falls within the ambit of technical delay.

Mr. Msuya argued further that, the second segment of delay covers the period from 25th April, 2022 when the appeal was withdrawn to 19th November, 2022 when the applicant lodged the current application. To justify the delay in this segment, he referred me to paragraphs 12 to 14 of the affidavit in support of the application and argued that the said period is adequately accounted for as required by the law. On this, he cited the case of John Hilarius Nyakibari v. Republic, Criminal Appeal No. 125 of 2020 [2022] TZCA 439: [18 July 2022: TanzLII]. He also referred me to the affidavit in reply and argued that the second segment is not contested by the respondent. He thus, finally, prayed for the application to be granted with costs. In his response, Mr. Lulinga also commenced his submission by adopting the contents of the affidavit in reply and readily conceded that the respondent is not disputing the second segment of delay but challenges the delay in the first segment. On that segment, he blamed his learned friend for arguing that the delay falls within the ambit of technical delay. He contended that, since the applicant was in possession of the defective certificate of delay for over three years but failed to detect the said errors, he cannot claim that the delay is technical. He further contended that, even after being afforded an opportunity to approach the Registrar of the High Court to amend the

certificate of delay, the applicant failed to do so and, as a result, she did not comply with the order of the Court requiring her to lodge supplementary record to include the correct certificate of delay in the record of appeal. To support his proposition, he cited the case of Bright Technical Systems & General Supplies Ltd v. Institute of Finance Management (IFM), Civil Appeal No. 12 of 2020 [2022] TZCA 710: [11 November 2022: TanzLII]. Tine learned counsel distinguished the cases of Fortunatus Masha (supra), Emmanuel Rurihafi & Another (supra) and Philimon Simwandete Mbanga (supra) relied upon by Mr. Msuya by arguing that in those cases, the delay was considered technical after the Court struck out the original matter, which was timely filed, for being incompetent but not withdrawn at the option of the applicant. It was his argument that, since in the instant application, the appeal was withdrawn at the applicant's plea, the delay does not fail under the realm of technical delay. According to him, the conduct by the applicant including lodging of this application is a delay tactics which should not be blessed by the Court. Based on his submission, he urged me to dismiss the application with costs.

In his brief rejoinder, Mr. Msuya mainly reiterated what he submitted earlier and, once again, prayed for the application to be granted. Having heard the counsel for the parties, the main issue for my consideration is whether the applicant has submitted good cause for the delay to warrant grant of this application. It is essential to reiterate that the Court's power of extending time under Rule 10 of the Rules is both wide-ranging and discretional but the same is exercisable judiciously upon good cause being shown. It may not be possible to lay down an invariable or constant definition of the phrase "good cause", but the Court consistently considers such factors like, the length of delay involved, the reasons for the delay; the degree of prejudice, if any, that each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal - see; Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd (2006) TLR 235 and Dar es Salaam City Council v. Jayantilal P. Rajani, Civil Application No. 27 of 1987 (unreported). It is also settled law that in applications of this nature, an applicant must show good cause by accounting for each and everyday of the delay. See

for instance the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported). Now, in the application at hand, the learned counsel for the applicant grouped the delay in two segments, one, the delay covering the period from 31s t March, 2017 when the impugned decision was delivered to 25th April, 2022 when the appeal was withdrawn; and two, the delay covering the period from 25th April, 2022 when the appeal was withdrawn to 19th November, 2022 when the applicant lodged the current application. As well conceded by Mr. Lulinga, the applicant has ably accounted for the delay in the second segment under paragraphs 12 to 14 of the affidavit in support of the application. As such, I will only consider the rival arguments of the learned counsel for the parties in the first segment of the delay. I am mindful that, to justify that the delay in the first segment constitute a technical delay, Mr. Msuya referred me to paragraphs 2 to 11 of the affidavit in support of the application. The said argument was strenuously disputed by Mr. Lulinga who argued that the said delay does not qualify to be termed a technical delay. To verify the contended arguments by the parties, I have extracted the relevant contents of the said paragraphs from the affidavit and let them speak for themselves:

"2... That, the applicant and two others namely, Citibank Tanzania Limited and Utuguru Resources Limited were sued by the respondent in Commercial Case No. 43 o f 2011. The case was heard to finality and judgment and decree were delivered on 31st March , 2017 whereby Citibank Tanzania Limited was discharged and the applicant and Utuguru Resources Limited were held liable, jointly and severally; 3. Immediately after delivery o f the judgment and decree, the applicant filed the notice o f appeal and lodged letter to apply for all documents requisite for appeal purposes; 5. Having received the documents, I discovered an anomaly contained in the judgment namely, the judgment and decree mis-spelled the applicant's name leaving out the word Bank...Therefore, I wrote to the Deputy Registrar informing him o f this slip and requested for correction; 7. At the time o f compiling the record o f appeal I discovered yet another slip i.e the date o f the judgment and decree was different from the actual date o f delivery o f the judgment and decree. I immediately wrote to the Registrar o f the High Court to correct the mistake...; 12

8. Sequel to what is stated in para (7) hereinabove, the Deputy Registrar also issued a certificate o f delay under Rule 90 (1) o f the Tanzania Court o f Appeal Rules...;
9. That, when the appeal was cause listed and was to come for hearing on 13th July, 2021,1 noted that the certificate o f delay is inconsistent with the requirements o f the Rules. I therefore prayed to this Court to allow me time to file a supplementary record so that the record become complete. The prayer was granted;
10. Immediately thereafter, on 15th July, 2021, I wrote to the Deputy Registrar o f the High Court requesting to be supplied with the correct certificate o f delay... Similarly, I made several follow ups through various letters addressed to this Court dated 16th August, 2021...Jd September, 2021, lO h November, 2021 and 8thApril, 2022; and
11. AH efforts stated in 10 hereinabove did not bear any fruits until on 2$h April, 2022 when the appeal was scheduled again, for hearing...since I was unable to file supplementary record on reasons beyond control, I personally moved this Court to withdraw the appeal so that I go back to the 13

High Court...and restart the appeal process afresh," It is clear that the facts disclosed in the above paragraphs, they mean nothing less than demonstrating that the applicant lodged the Civil Appeal No. 295 of 2017 timely but finally, opted to withdraw it on account of failure by the Registrar to issue proper certificate of delay, despite his several reminders to that effect. In Fortunatus Masha (supra), the Court observed that: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which dearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement o f the ruling o f the court striking out the first appeal. In these circumstances an extension o f time ought to be granted." [Emphasis added]. Therefore, and being guided by the above authority, I agree with the argument of Mr. Msuya that, for the delay in the first segment, the applicant is entitled to plead technical delay. I am aware that, Mr. Lulinga's main concern on this segment hinges on the fact that the Civil 14

Appeal No. 295 of 2017 was not struck out by the Court but withdrawn at the applicant's own plea. With profound respect, I am unable to agree with him on this point, as it is clear from the above paragraphs that the applicant decided to take that move after she had noted that the appeal was incompetent on account of the failure by the Registrar to issue the correct version of the certificate of delay as ordered by the Court. In the premises, I find merit in the application and it is hereby granted. The applicant should lodge the intended notice of appeal within thirty (30) days from the date of delivery of this ruling. Considering the circumstances of this application, I make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 13th day of November, 2023. The Ruling delivered this 14th day of November, 2023 in the presence of Ms. Irene Mchau, learned advocate for the applicant, and Mr. Peter Clavery, learned advocate for the respondent is hereby / ~ a r + \ f\ a A ac a fri 1 0 m n \ i r if f h o o r i n i n a l R. J. KEREFU JUSTICE OF APPEAL