National Bank of Commerce Ltd vs Humoud Ali Salum (Civil Application No. 268/17 of 2017) [2017] TZCA 1283 (14 November 2017)

• .. IN THE COURT Of APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 268/17 OF 2017 NATIONAL BANK OF COMMERCE l TD .......................................... APPLICANT VERSUS HUMOUD All SALUM ................................................................ ESPONDENT (Application for extension of time within which to file application for stay of execution from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam) 6 th & 15 th November, 2017 MWANGESI, J.A.: (Mg.aya, J.) dated the 30 th day of November, 2016 in

• Land Case No. 92 of 2015 RULING On the 6 th day of June, 2017, the applicant's application for stay of execution of the decree of the High Court of Tanzania Land Division in Lqnd Case No. 92 of 2015.was struck out by the Co_ust, Q0_tbIc:3son tbat,_ it had not been appended with the notice of appeal against the decree sought to be stayed. Subsequent to the order by the Court striking out the application, the applicant did institute the application at hand under the provisions of Rule 10, 48 (1) and (2) and 49 (1) of the Court of Appeal Rules, 2009 (the Rules), seeking for extension of time within which to l

· lodge a fresh application for stay of execution. The application is supported by sworn affidavit of Mr. Gaspar Nyika learned advocate, wherein the reasons as to why extension of time should be granted by the Court, have been given. The application is on the other hand, resisted by the respondent. When the application was called on for hearing on the 6 th day of November 2017, Ms Madina Chenge learned counsel, did enter appearance for the applicant whereas, Mr. Ndanu Emanuel Stephan, also learned counsel, did represent the respondent. In amplification of the application for extension of time, Ms Chenge learned counsel, did adopt the affidavit that was sworn by Mr. Gaspar Nyika in support of the notice of motion, as well as the written submissions, that were lodged on the 18 th August, 2017, as part of her submission, and had nothing to add. The written submtssions,-wh-ich-were lodged in terms of Ru1e·to6-(l} -- of the Rules, is prefaced by a brief timeline of the application that, it was previously filed on the 27 th day of January, 2017, as Civil Application No. 42/17/2017, which was after a notice of intention to appeal had been lodged on the pt December 2016, just a day, from when the decision 2

intended to be impugned was delivery by the High Court that is, on the 3pt November, 2016. The application was however, struck out by the Court suo motu on the 06 th June, 2017, for want of notice of appeal. As the period to lodge a fresh application had by then already elapsed, the applicant did prefer the current application for extension of time. And since extension of time can only be granted by the Court upon good cause being advanced, it is the argument on behalf of the applicant that, there is good cause in that, the delay occasioned was a mere technical one. In support of the averment, the decision in the case of Fortunatus Masha Vs Willian, Shija and Another [1997] TLR 154, was cited in reliance. It was submitted further on behalf of the applicant that, besides the delay being technical, there was yet another good cause attributed by the decision of the High Court, being tainted with illegalities. Three types of illegalities got pointed out namely, first, that the current owner of the disputed house, who did legally purchase it at a public auction, was condemned unheard at the High Court. Secondly, that the Court shifted the· burden of proof to the applicant that, he was the one to establish if the facility which had been advanced to the respondent by the applicant had been fully discharged. And third, that the Court ordered the applicant to 3

• pay the respondent an amount of TZs 500,000,000/=, while such an amount was never asked by the respondent in the suit. In the view of the applicant, such illegalities were subject to being tested and remedied by this Court, which can only be done by way of appeal. In the circumstance, it was argued that, there was strong justificatior:, for the grant of extension of time, did conclude the learned counsel. To buttress the argument, the Court was referred to the decisions in the cases of Principal Secretary, Ministry of Defense and National Services Vs Devran Vallan1bia [1992] TLR 185 and VIP Engineering and Mark.eting and Two Others Vs Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 (unreported). On the other hand, Mr. Ndanu learned counsel on behalf of the respondent, did respond to the written submissions of his learned friend orally on the reason that, he was engaged to represent the respondent just recently, after he parted ways with his previous advocate one Mr. John Kange. Countering the first ground, which was to the effect that, the delay was a technical one, the learned counsel for the respondent did argue that, it was a lame ground which did not constitute a good cause in terms of Rule 10 of the Rules. In his view, the failure by the learned counsel for the 4

applicant to append the notice of appeal to the application for stay of execution was nothing other than sheer negligence. The Court was strongly urged not to accommodate it. As regards the illegality in the judgment of the High Court, which was alleged by his learned friend, in the view of Mr. Ndanu learned counsel, the same, was as well unjustifiable on the reasons that, first, it was the duty of the applicant to involve the third party in his pleadings because, he was the one with knowledge of his existence. Since the applicant failed to discharge such obligation, was yet other negligence _on his part, which cannot entitle him to shift the burden of such blames to the - respondent. And, with regard to the complaint by the applicant that, the respondent was awarded TZs 500 millions, which was never asked for by the respondent in his pleadings, the learned counsel for the respondent did counter it by submitting that, his learned friend did not cite any provision of law, which was contravened by the learned Judge of the High Court in awarding such an amount. The learned counsel did conclude his submission by arguing that, all the efforts that were being made by the applicant and his learned counsel were just aimed at frustrating the process by the respondent, to realize his legal rights as adjudged by the 5

High Court. The Court was U1erefore, strongly urged to strike out the application with the contempt it deserves, and let the respondent to enjoy the fruits of his victory. What stands for determination of the Court in the light of the submissions by either counsel above is whether, the applicant did advance good cause to convince the Court to extent the sought period, within which it can lodge an application for stay of execution. It is common knowledge that, the issue as to whether to grant extension of time or not, solely lies on the discretion of the Court as per the stipulation under the provisions of Rule 10 of the Rules, of which, in its own words reads: "The Court may, upon good cause shown/ extend the time lirnited by these Rules or by any decision of the High Court or tribunal for the doing of any act authorized or required by these Rules/ whether before or _aft:e_r the. f!~piration of the tirne . an_cj . whether before or after the doing of the act.· and any reference in these Rules to any such time shall be construed as a reference to that tirne as so extended. // 6

In the exercise of its discretion however, the Court is guided by some developed principles from the previous decisions. It has been argued by the learned counsel for the applicant that, the delay occasioned by the applicant in lodging his application was a technical one relying on the decision of Fortunatus Masha Vs WiUian1 Shija (supra). Indeed the said case had almost similar circumstances to the one at hand in that, it was also an application for extension of time after the previous application had earlier on been struck out. In its holding the Court did state thus: '~ distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in tirne 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 imrnediately after the ·· pronouncement of the ruling of-the court striking out the first appeal. In these circurnstances an extension of lime ought to be granted. /I' Since it has been established that, the previous application for stay of execution, which was struck out on the 6 th June, 2016 had been lodged within time save for the failure to append the notice of appeal, in my view, 7

· · it falls within the technical delay as discussed in Fortunatus Masha's case above. In that regard, I am inclined to join hands with Ms Madina, learned counsel that, the delay in the application at hand was a technical one. Even though the foregoing position suffices to move the Court to grant the sought extension time, there were yet some legal issues in the case of which its decision is sought to be impugned, which I think, call for deliberation by this Court. These legal issues include, as to whether it was justifiable for the High Court to condemn the current occupier of the disputed property, who did bona fide purchase it without being heard. And · also, if it was legally proper, for the Court to grant the respondent, an amount of TZs 500 million, which he never asked for in the pleadings. In the light of the holding in the Principal Secretary, Ministry of Defense and National Service Vs Devram Vallambhia, [1992] TLR 185, I think the propriety of the decision ought to be tested. In the same it was held that: "Where/ as here/ the point of law at issue is the illegality or otherwise of the decision being challengect that is of sufficient irnportance to constitute 11 sufficient reason" within the rneaning of rule 8 of the Rules for extending time; 8

(ii) When the point at issue is one alleging illegality of the decision being cf1al!enged, the Court has a duty, even if it rneans extending the tirne for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate rneasures to put the rnatter and the record right." In the light of what has been traversed above, it is evident that, the application at hand does fall squarely within both situations and, as such, it is a fit one for grant of the sought extension of time. I would therefore grant the application for extension of time to lodge the application for stay of execution. The costs in this application will fall in ttie main cause. Order accordingly. DATED at DAR ES SALAAM this 14tri day of November, 2017. S. S. MWANGESI JUSTICE OF APPEAL

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I certify that this is a true copy of the original. '\ A.H. MS MI DEPUTY REGISTRAR COURT OF APPEAL 9