THE Chairman of the Confederation of Tanzania Industries (CTI), Mr Felix Mosha has gone to the Court of Appeal to challenge the sale of his house scheduled for next Sunday, to satisfy a 371m/- court's decree.
The decree was issued by the High Court's Commercial Division against him, Mrs Anna Mosha and West Kilimanjaro Flower Park Limited, for failure of the company they had guaranteed to repay a loan to Stanbic Bank Tanzania Limited.
In the present move, Mr Mosha and his co-applicants, Mrs Mosha and the company, have lodged two applications, seeking stay of execution of the High Court's decree dated January 24, 2008 and extension of time to lodge a notice of appeal against the decision.
The filing of the two applications comes after the High Court on January 8, this year, issued a proclamation of sale by public auction of the house situated on Plot No. 91, Regent Estate Area, Kinondoni Municipality in Dar es Salaam on January 27.
But in one of his affidavits to support the applications in question, advocate for the applicants, Herbert Nyange, stated that "a notice of appeal was filed by his former law firm of Nyange, Ringia and Co. Advocates on January 24, 2008, in time."
However, he stated, instead of naming the applicants as appellants, they were named as applicants. According to him, the error was negligible but could only be corrected after an application to amend it was made to the court under Court of Appeal Rules.
Mr Nyange explained that, however, no application was made either formally or informally and in the absence of leave to make such amendments, he purported to correct the mistake and filed a corrected version of the notice of appeal on March 18, 2008.
In its ruling that was to be delivered on January 6, 2012, but was not and the next date was not communicated to him, the court found the record of appeal wanting because of the correction made out of time and struck out the appeal in a ruling read in his absence without notice on January 31, 2012.
"On account of the ruling having been delivered in my absence, I was not able immediately to purchase its copy and promptly lodge an application for extension in the Commercial Court until February 24, 2012, only twenty four days thereafter," reads one of his affidavits he has filed.
Facts of the case show that in 2004, the bank issued a loan of 602,500 US dollars to West Kilimanjaro Flower Park Limited, while Mr and Mrs Mosha executed personal guarantee to secure the repayment of the loan by the company. It was alleged that the company failed to repay the loan and as of May 18, 2007, the outstanding debt stood at 51,278.43 US dollars and 165,926,667/40.
The bank had no other option than filing a suit, through Kesaria and Company Advocates, against the trio on May 21, 2007. Particulars of the suit indicate that the company was liable to the bank as principal borrower, while Mr and Mrs Mosha were responsible as guarantors for the company for repayment of the loan.
On January 24, 2008, the High Court issued judgment in favour of the bank, but the defendants appealed the decision to the Court of Appeal. But in December 2011, the appeal was 'struck out.' The trio went back to the High Court, seeking for orders for extension of time to file afresh notice of appeal to oppose the judgment award. However, on November 21, last year, High Court Judge Agnes Bukuku dismissed the request.