IN THE HIGH COURT OF TANZANIACOMMERCIAL DIVISION

AT OAR ES SALAAM

MISC.COMMERCIAL CAUSE NO.70 OF 2013

1. ANDREW WISTON KALELA NDIMBO 1st APPLICANT

2. CHRISTINA ANDREW NDIMBO 2nd APPLICANT

VERSUS

1. SULEMAN MOHAMED KHAMIS 1st RESPONDENT

2. ANTHONY KONDE SAKI 2nd RESPONDENT

3. ERIC AUCTION COURT BROKER 3rd RESPONDENT

Date of hearing: 19/09/2013

Date of the last order: 19/09/2013

Date of ruling: 01/11/2013

This is a ruling on application for extension of time ANDREW

WISTON KALELA NDIMBO and CHRISTINA ANDREW NDIMBO, the

Applicants herein, lodged in this Court on the 2nd August, 2013, for filing an

application to set aside sale in respect of the Applicants' Plot No.241 Block

"G" Tabata Dar es Salaam. The application was preferred under section

14(1) of the Law of Limitation Act; [Cap.89 R.E 2002] and is supported

by the joint affidavit of ANDREW WISTON KALELA NDIMBO and

CHRISTINA ANDREW NDIMBO.

In arguing the application, Mr. Nassoro, Advocate appeared for the

Applicants and Mr. Masaka, Advocate appeared for the Respondent and

they made oral arguments.

The background to this application briefly as could be gathered from

the sworn affidavit of the Applicants and which were amplified by Mr.

Nassoro, learned Counsel for the Applicants is that, the Applicants were

sued by the 1st Respondent for among other things, payment of TZS

60,000,000 1=. The suit ended with a consent settlement and a decree

entered by this Court. The 3rd Respondentfiled application for execution of

the Decree by selling Plot No. 241 Block "G" Tabata, Dar es Salaam. The

Applicants claim that the said plot was fraudulently sold by a purported

public auction to the 2nd Respondent.The Applicants allege in the affidavit

the following particulars of fraud; that, no duly public auction was

conducted for the sale of the said plot; that, no publication of the alleged

public auction was made; that, the purported proclamation of sale did not

state the true amount for the recovery of which the salewas ordered; that,

the alleged public auction was conducted before the expiry of the 30 days

prescribed period from the date of the purported proclamation of sale

issued by the Court and that before the purported sale as there was no

court order for attachment of the said plot. The Applicants contend further

that upon noticing those fraudulent actions, they filed an application in this

Court to set aside the said sale, which was struck out on technicalities on

the 31st July, 2013. The Applicants however, are still aggrieved with the

illegal sale of the plot and since time to challenge the said sale has expired

the Applicants are now seeking extension of time since they are bonafide

prosecuting the former application.

Responding to the submissions of Mr. Nassoro in support of the

Application, Mr. Masaka learned Counselfor the Respondentsargued that,

fraud is not a ground warranting the Court to grant extension of time. The

applicant was supposed to account each day delay from the day when

execution was taken place, Mr. Masaka further submitted. Mr. Masaka

submitted further that since the execution took place on the 30th October,

2011, that is the date in which the Applicants' property was sold by public

auction and therefore the Application to set aside the sale ought to have

been lodged in this Court within 30 days from the date of the sale.

According to Mr. Masaka, there is no explanation in the Applicants' joint

affidavit accounting for the delay. Mr. Masaka referred this Court to the

case of AL-IMRAN INVESTMENT LTD VERSUS PRINTPARK

TANZANIA LIMITED & ANOTHER, Misc. Civil Cause No.128 of 1997

(unreported) in which Nsekela,J., held that:

''In order for the applicant to have benefit of section 14(1) the

Applicant ought to explain the delay of every day that passes beyond

the describedperiod of limitation. Sadly, as stated above there is no

such explanation at all let alone sufficient cause that has been given

by the Applicant There is no material before me on which I can base

my judicial discretion to extend the period of limitation. "

Amplifying on the above legal position, Mr. Masaka referred this

Court to the case of DAUDI HAGA VERSUS JENITHA ABDON

MACHAFU, Civil Reference No.1 of 2000 (unreported) in which it was

held that; ''In order for extension of time to be granted reasons accounting

for the delay have to be advanced. "

Mr. Masaka submitted further that, the Applicants have failed to

account for the delay and as such there is no ground advanced warranting

this Court to grant the application for extension of time and prayed that

the application be dismissedwith costs.

Mr. Nassoro in rejoinder argued that, the reasons for the delay have

been clearly stated under paragraph 6 of the joint affidavit of the

Applicants, that they were bonafide prosecuting the former application

which was struck out by this Court on 31st July, 2013. The application to

set aside the said sale was filed in this Court on the 1ih November, 2011.

Therefore the application was filed immediately after the Applicants

noticing that, the sale was fraudulently conducted. Mr. Nassoro submitted

further that aside from this fact, the explanation of the Applicants in

paragraphs4, 6 and 7 of their sworn affidavit in support of the application

are sufficient.

Mr. Nassoro took issue with the cited cases of AI-Imran

Investment Ltd and Daudi Haga (above) that they are irrelevant. Mr.

Nassoroadded that, the previous application was struck out on 31st July,

2013, and this application was filed on the 2nd August, 2013, which is a

delay of two days. Mr. Nassorosurmised by arguing that, it is well known

that, where fraud is alleged in any proceedings, the Court is always bound

to grant extension of time, but did not cite any case authority for this

disposition.

The present application which is for extension of time has been

brought under section 14(1) of the Law of Limitation Act Cap.89 R.E2002.

Section 14(1) which provides that:

"(1) Notwithstanding the provisions of this Ace the court maYJ.for

any reasonable or sufficient cause, extend the period of

limitation for the institution of an appeal or an application, other

than an application for the execution of a decree, and an application

for such extension may be made either before or after the expiry of

the period of limitation prescribed for such appeal or application."

(the emphasis is of this Court).

The Applicants have advanced the reasons for the delay in applying

for extension of time in paragraph 6 of their joint sworn affidavit in support

of the application. The Applicants state therein that, all the time they were

bonafide prosecuting the application for setting aside sale, which

application this Court struck out on the 31st July 2013. The issue is whether

this reasonconstitutes reasonableor sufficient cause for this Court to grant

extension of time. As per the court record, the "purported" sale of the suit

property on Plot NO.241 Block "G" Tabata Dar es Salaam was made by

public auction on the 30th October, 2011. The Applicants lodged their

application for setting aside the said sale in this Court on the 1ih

November, 2011. This Court pursuant to that application entered its ruling

on the 31st July, 2013 striking it out on the ground that the affidavit in

support of that application was wrongly attested and therefore rendered an

application incompetent.

The pertinent question therefore becomes when does time begins to

run for purpose of application for extension of time. In my considered view

the limitation period started to run from the date in which the purported

sale by public auction took place, which was on 30th October, 2011.

Reckoning from that date, that is, 30th October, 2011, to 2nd August, 2013

when this application was lodged in this Court, it will be delay of more than

a year. However, the law does not provide for a time limit for application

for extension of time to file application to set aside sale. This being the

case therefore resort is to be had to Item 21 of Part III to the Schedule of

the Law of Limitation Act, Cap.89 R.E 2002, which provides for 60 days for

all applications for which no period of limitation is provided for under that

law or in any other written law.

Mr. Nassoro argued that, the limitation period starts to run from the

date in which the former application was struck out. I am of the considered

view and with due respect to Mr. Nassoro that, in the eyes of the law once

an application has been struck out, there is nothing left and it is considered

that that application never existed at all. As Mr. Masaka rightly submitted,

time starts to run from the date in which the purported sale took place, the

very date the purported fraud is alleged to have been committed.

It is without doubt that the Applicants have delayed to lodge their

application for setting aside the purported sale for more than a year. The

pertinent question here is whether the reasons the Applicants advanced to

account for the delay are reasonable or sufficient for this Court to grant

extension of time. The Applicants have advanced as their main reason for

the delay, that they were bonafide prosecuting the application for setting

aside sale, which this Court struck out on technicalities on the 31st July

2013. Indeed the Court record shows that since 30th October, 2011, the

Applicants have been busy trying to set aside the purported sale and they

allege the sale was tainted with fraud. Allegation of fraud is a serious one,

which the Court should not take lightly. This being the case therefore,

considering that the Applicants are alleging the existence of fraud in the

purported sale of the suit property, this constitutes a sufficient ground for

this Court to extend time for the Applicants to bring application for setting

aside the sale of Plot NO.241Block "G" Tabata Dar es Salaam. This will

provide an opportunity to Court to determine whether indeed there was

fraud in the sale of the suit property as the Applicants allege.

It is for the above reasons that the application for extension of time

succeeds. The Applicants are hereby granted extension of time to bring

application to set aside the sale of the suit property Plot No.241 Block "G"

Tabata Dar es Salaamwithin fourteen days of this order. Costs shall follow

the event. Order accordingly.

R.V. MAKARAMBA

JUDGE

01/11/2013

Ruling delivered this 01st day of November 2013 in the presence of

Mr. Andrew Weston Kalela Ndimbo, the 1st Applicant in person and in the

absence of the Respondents.

~ ~r-------L....................~~ .R.V. MAKARAMBA

JUDGE

01/11/2013