chris mugasha mukaja vs azania bank limited 2018 tzhc 2761 22 may 2018

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 100 OF 2018 CHRIS MUGASHA MUKAJA........................ APPELLANT VERSUS AZANIA BANK LIMITED.......................... RESPONDENT (Originated from Civil Case No. 92 of 2016 at Resident Magistrate Court of Dar es salaam at Kisutu) RULING MURUKE. 3. Upon perusal of the records, court raised suo moto issue of time limitation. This Civil Appeal originates from District Court of Bagamoyo, in its original jurisdiction. Time prescribes by Law of Limitation act, part II Item No. 1 to the first schedule of law of limitation is 90 days. Judgment sought to be challenged was delivered on 22th January, 2018. Current appeal was filed on 23rd April, 2018, vide exchequer receipt No. 18891049. From 22th January, 2018 to 23rd April, 2018 is 91 days. Thus appeal is out of time for 1 day. It is not in dispute that, in terms of section 19 (2) of the Law of Limitation Act Cap. 89, R.E. 2002, the law provides for exclusion of the requisite time used to obtain copies of Judgment and Decree. It reads:- "(2) In computing the period o f limitation prescribed for an appeal, an application for leave to appeal\ or an application for review o f judgment, the day on which the judgment complained o f was delivered, and the period o f time requisite for obtaining a copy o f the decree or order appealed from or sought to be reviewed, shall be excluded " The question to be answered is whether exclusion of period of obtaining the Judgment and Decree can be dealt in the appeal. Section 14(1) of the Law of Limitation Act (Supra) provides:- "(1) Notwithstanding the provisions o f this Act, the court may, for any reasonable or sufficient cause, extend the period o f limitation for the institution o f an appeal or an application, other than an application for the execution o f a decree, and an application for such extension may be made either before or after the expiry o f the period o f limitation prescribed for such appeal or application" Though the law avails discretionary powers to court to enlarge time to appeal either before or after expiry of the period of limitation; enlargement of time can only be sought in a requisite application. In the event law gives room for one to seek enlargement after expiry of limitation period, that accommodates the fate of late appeals where one can lodge an application to seek enlargement and avail reasonable or sufficient cause for the delay. Such extension of time cannot be automatically be assumed by parties unless a requisite application is properly sought through the appropriate forum. In the circumstances, appeal is struck out for being filed out of time. Objection being raised by the court, sou moto, I will not order any costs,' JULHit 22/05/2018 Ruling delivered in the absence of the parties. Z. G. Muruke