Justice Katherine Oriyo ruled in favour of the bank after noting that the application by the trio under which they were seeking for extension of time to lodge a notice of appeal against findings of the High Court’s Commercial Division, with want of merits.“The applicants have failed to advance good cause to justify an extension of time,” she ruled, adding that in an application for extension of time, the position of the Court has consistently been to the effect that the applicant has to account for every day of the delay.
She pointed out that the need to account for each of the days of delay become even more important where matters subject of appeal like the present one which was decided four years ago, on November 6, 2013. The applicants are alleged to have failed to honour the decree of the court, having the parties decide to settle amicably the dispute that had been initiated by the Bank upon default of repayment of a loan facility.
They had entered into a settlement to dispose off the suit and it was agreed that the applicants would clear up the amount due in some installments.
However, the applicants failed to honour the agreement, prompting the court to issue an attachment order of the mortgaged property. In its suit filed by Kesaria and Company Advocates, the Bank had alleged that on May 30, 2012, it availed banking facilities to MPS Oil Tanzania Limited (Company) upon the terms and subject to the conditions specified in a facility letter.
According to the plaint, the facilities comprised of letters of credit and on demand overdraft facility for the aggregate value of 4,500,000 US dollars. It was claimed that the terms and conditions of the facilities were accepted by the Company on June 11, 2012.
The facilities were secured by a debenture (agreement on debt) issued by the Company to the Bank creating a fixed and floating charges over all its assets, a personal guarantee of payment duly executed by Mr Talib, the Company’s Director, in favour of the Bank.
It was claimed further that there was also a third party mortgage dully executed by Ms Mousud, who is Company Secretary, over her immovable property on Plot Number 60 Block A at Kimbiji area in Dar es Salaam with Title Number 59143.
The plaint of the suit further alleged that the Company breached of and in non compliance with the terms and conditions of the facility letter and defaulted in repayment of the facilities by refusing, neglecting and, or otherwise failing to repay the facilities.
It was claimed that the Company’s indebtedness to the Bank as at June 28, 2014, stood at 2,565,150.54 US dollars, which continued to accrue interests at the agreed rate until payment in full.
The bank demanded the said amount being debt outstanding and due from the Company. According to the plaint of the suit, the Company was liable as principal borrower and Talib and Mousud were jointly and severally liable with the Company pursuant to their respective covenants.
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