20181227 TZHC Arusha2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF AR,USHA AT ARUSHA MISC. CIVIL APPLICATION NO 135 OF 2017 ' (C/F Civil Case No 53 of 2015 in the Resident magistrate couFt of Arusha at Arusha) BUSINESS MACHINES (T) LTD ..................................... APPLICANT VERSUS RADIO KILi FM STEEO LTD ...................................... RESPONDENT RULING 24/10/2018,27/12/2018 MWENEMPAZI, l The applicant has filed this application of time to appeal against the decision of Hon. N. A Baro RM in Civil Case No 53 of 2015 dated 24th August 2017. She has brought the application under section 14 (1) of Law limitation Act, Cap 89 R.E the application is supported with an affidavit of one Emmanuel F. Kinabo, the advocate duly instructed to take conduct of the matter. In the affidavit, the deponent has deposed that the improgned judgment was delivered on 24/08/2017 without notice to the application. On several occasions, in the period between 31 st may 2017 - 21 st September, 2017. The learned counsel made follow up when he then was 1 follow up, then he was informed that the judgment was ready for collection so he showed pay fees to be supplied with a copy. The learned counsel complied and paid the same on the 22 nd September, 2017 and obtained a pay in slip No 505282. However, he was not supplied with a copy of judgment until on 13th November, 2017. Both the judgment 1 ' and decree were certified on the 2nd November 20~7. He immediately prepared a memorandum of appeal for filing on 27/11/ 2017 but it was not 1 admitted for being time barred. Hence he prepared this application and I th presented for filing on 4 December 2017. Hearing of the application was conducted by way of ,written submission. Leave of the court was issued to that effect. In the :written submission, i counsel for the applicant has expounded further that, under order XXXIX Rule 1 of the Civil Procedure code, Cap 33 R.E 2002 :it is mandatory that I any appeal be preferred in form of a memorandum of ~ppeal signed by the appellant or his advocate, and accompanied by a copy of the decree I appealed from and a copy of the judgment on which \tis founded. Lack of the copies for attachment prevented the appeal to be filed in time. The respondent is vigorously opposing this application. The argument are that the deponent (Counsel for the applicant) has sta'ted under paragraph 5 of his affidavit that on 22/09/2017 he paid for the judgment a sum of Tshs 10,000/= shown in the NMB slip with number 505282. The slip reveals that the purpose of payment was court fee. Nowhere in the slip is it stated that payment was for judgment in civil case no 53 of 2015. 1 2 '' It is well known at the time, fees were payable for both .the judgment and decree. Upon effecting payment through the bank and presenting the bank slip to the court cashier, one would be issued with an ;exchequer receipt bearing the details of payment. In the instant case, the respondent was issued with exchequer receipt No. 15872550 dated 2/11/2017 for Tshs 15,000 being payment for Decree and judgment in Civil Case No 53 of 2015. The counsel for respondent has submitted that his contention is that the applicant has not adduced evidence in support of his daim that he paid fees for the judgment. Besides he never paid a sum of Tshs 5000, which sum he was duty bound to pay before obtaining the decree. He submits that it is curious that the applicant paid fees for a copy of the judgment before he has seen it and long before the same was certified by the Hon. Trial magistrate. I have made a follow up and read the application and submissions by the parties in this application. The essence of the matter at hand is an application for an order to extend time within which to- file an appeal. The applicant is duty bound to account for delay. He has done so by narrating in the affidavit and expounded the same in the written $Ubmission. In opposition, the respondent has centered the point at the way copies of judgment and decree for the purpose of appeal were obtained. The ' counsel for the applicant in the affidavit at paragraph 4 has deponed that he was informed by court official, that the judgment was ready. In my understanding payment was made pursuant to inform~tion availed to him. 3 ' Presumably by the court officials. I refrain myself from speculating further I than this explanation. As the important message, the ,applicant did not intentionally delay to file an appeal; The date a judgri,ent was certified coincides for both parties. I think what has been said and explained by the applicant, depicts that ' there was a reason for delay apart from sitting idle on the part of the applicant. He has been able to show sufficient reasoQ for the court to ' exercise its discretion and extent time. I therefore allow the application and extend time within which to file an ' appeal. The applicant is to file an appeal within 21 da}{s from the date of I this Ruling and Order. It is ordered accordingly. =---~i• T. M Mwenempazi Judge 27.12.2018 Date: 27/12/2018 Coram: T. M Mwenempazi, J For the Applicant: Applicant: Absent For the respondent: Present in Anna Mosha Representative of Respondent I ' I Respondent ' 4 • ' CC: Beatrice I Court: Ruling delivered in chamber in the presencJ of Anna Mosha, I Representative of the Respondent this 2ih December, 2018 I ~·. T. M Mwenempazi Judge 27.12.2018 I 5