chakoma hanga satara ta ikizu express others vs ecobank t ltd others 2018 tzhclandd 155 8 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 60 OF 2017 CHAKOMA HANGA SATARA t/a IKIZU EXPRESS................ 1st APPLICANT JUHUDI WAMBURA KIGESHO t/a IKIZU EXPRESS...............2 nd APPLICANT SABINI WARIOBA t/a IKIZU EXPRESS.................................. 3 rd APPLICANT VERSUS ECOBANK (T) LIMITED.........................................................1st RESPONDENT NAMIC AUCTION MART................................................... 2 nd RESPONDENT MOHAMED HUSSEIN OTHMAN..........................................3 rd RESPONDENT RULING P.M. Kente, J. By way of Chamber Summons theapplicants applied for extension of time to file an application forleave toappeal to the Court of Appeal out of time. The application is brought under section 11(1) of the Appellate Jurisdiction Act [Cap 141 R.E. 2002], and any other enabling provisions of the law. The respondents’ in opposition filed the affidavit of one Leah Kamanga, learned counsel for the applicants. The application was strongly objected by the counter Affidavit which was deponed to by Mr. Martin Matunda, counsel for the 1st and 3rd respondents. Having considered the submissions for and against this application, the main issue that calls for determination is whether the applicants have given sufficient reasons to account for the delay for i the court to exercise its discretionary powers in granting them an extension of time as prayed. The reason for delay as stated in the applicant’s affidavit under paragraph 7 is that it was, neither caused by the applicants nor their advocate. Rather it was because the court delayed in issuing them with the copies of the decree and judgment to be attached to the application for leave to appeal. Even though, for my part, I am settled in my mind that the reason given by the applicants in their affidavit is not sufficient to explain the delay to file application for leave to appeal to the Court of Appeal within the prescribed time. The applicants in their submission stated that the court delayed to furnish them with the copies of judgment and decree so as to enable them attach the said documents to their application as per the requirement of Rule 49(3) of the Court of Appeal Rules, 2009, which according to them, requires every application for leave to appeal to be accompanied by a copy of the decision which is sought to be challenged on appeal. It is my observation that this provisions Rule 49(3) (supra) only applies where the application for leave is lodged in the Court of Appeal. But in the instant application, since it was filed in the High Court, then there was no need for the applicants to wait for the copies of judgment and decree as alleged because the said documents are not necessary documents to be attached to their application for leave to appeal to the Court of Appeal. It is my 2 settled view that, in the end, the application must be dismissed because, the applicants inordinately delayed to file their application within the prescribed time and they have failed to furnish sufficient reasons for such a delay. In the circumstances, I agree with the authority cited by the learned counsel for the respondents, that is the case of Mohsin Mohamed Taki Abdallah Vs. Tariq Mirza and 4 Others, Civil Application No. 100 of 1999(Unreported) where the Court of Appeal of Tanzania at page 4 held that:- “Application according to High Court practice is by way of Chamber Summons supported by an affidavit, there is no other requirements like annexing the High court’s own order which in any case, would be in the High court record The applicants in their affidavit under paragraph 10 and in their submissions had contended that another reason to justify their prayer for extension of time is that they have discovered some irregularities in the proceedings, the impugned judgment and decree as the court reached the impugned decision upon considering the documentary evidence which was objected to during the hearing while the said document was not admitted in evidence. With respect, I wish to differ with the applicants’ submission on an issue of such irregularity being turned into being turned into a reason for delay. It should be noted that, at this stage, the applicants only needed to furnish sufficient reasons for their delay 3 and not to go further giving reasons as to why they should be granted leave to appeal. In the premises, it occurs to me that there were no sufficient reasons upon which this court can invoke its discretionary powers to grant leave to appeal to the Court of Appeal out. In the case of Godwin Ndewasi Karoli Ishengoma versus Tanzania Audit Corporation (1995) TLR 200 the Court of Appeal held that: “The Rules of Court must prima-facie be obeyed and in order to justify extending time during which some step in the procedure requires to be taken , there must be some material on which the court can exercise its discretion. ” In this case, I venture to say, there is no material upon which this court can exercise its discretion and enlarge time as prayed. In the upshot, it is my finding that the delay was occasioned by the applicants’ ineptitude and negligence. Consequently the application is hereby dismissed with costs. Dated at Dar es salaam this 8th day of June, 2018.