By 
THE Bank of India (Tanzania) Limited has lost the appeal challenging the refusal by the High Court’s Commercial Division to order her three clients to pay interests for defaulting to repay a loan of over 600m/-.
This followed the decision of the Court of Appeal to strike out the appeal under which the Bank, the appellant, had lodged against the three clients, Y.P. Road Haulage Limited, Lalit Ratilal Kanabar and Kiran Lalit Kanabar, the respondents, upon failure to serve them a copy of the notice of appeal in time.
Justices Augustine Mwarija, Mary Levira and Abraham Mwampashi ruled against the appellant after allowing one ground of objection raised by the respondents over the competence of the appeal in question, for failure to comply with Rule 84 (1) of the Court of Appeal Rules.
“On the basis of the foregoing, we are of the settled mind that the non-compliance with Rule 84 (1) of the Rules rendered the appeal incompetent. In the event the appeal is hereby struck out with costs,” they ruled.
On the ground of objection, the respondents had contended that the appeal was incompetent and incurably defective for failure to comply with the mandatory provisions of Rule 84 (1) of the Court of Appeal Rules, 2009 regarding service of the notice of appeal.
When determining such a ground of appeal, the justices pointed out that it was clear from the wording of Rule 84 (1) of the Rules that the appellant was required to serve a copy of a notice of appeal on the respondents before or within 14 days of its lodgment.
“Failure to (serve a notice of appeal on the respondent within the prescribed time) amounts to a failure by him to take essential steps in the appeal and thus under Rule 89 (2) of the Rules, such failure warrants a striking out of the notice,” they said.
In the case, the appellant sued the respondent claiming a total amount of 616,479,447/22 and 5,984.83 US dollars. The claim arose from a loan agreement upon which, on several dates between July 4, 2008, and January 23, 2010, Y.P. Road Haulage Limited was advanced overdraft facilities.
The loans in both Tanzania shillings and US dollars were guaranteed by the two other respondents, Kanabar respondents and secured by mortgage of the company’s fleet of motor vehicles, including Scania trucks and trailers.
It was stated that the respondents defaulted to repay the loan and as a result, as of June 15, 2015, the outstanding amount together with interest and penalties was to the tune of 616,479,447/22 and 5,984.83 US dollars. The appellant also claimed damages and costs of the suit.
The claim was disputed by the respondents. They contended that all the amounts of the loans advanced to the company were settled.
Such respondents claimed further that without any colour of right, the appellant forcefully took the company’s trucks and trailers and sold them, thus incapacitating it from generating any income from those motor vehicles.
In its decision, the High Court found that the appellant was entitled to be paid by the respondents 616,479,447/22 and 386,000 US dollars as outstanding amounts of loans. It found further that the appellant was entitled to costs.
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