20151030 TZHC Dar es Salaam

•·f'-· \I'~ '\ .,... 1 IN, THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO 262 OF 2014 COMMERCIAL BANK OF AFRICA (TANZANIA) LIMITED ....................... APPLICANT V FARAJI HASSAN KIMARO & HASSAN FARAJI HASSAN T / A KIMONGE ELECTRICAL ENTERPRISES .......... RESPONDENTS Date of last Order 28/9/2015 Date of Ruling 30/10/2015 RULING This is an application for enlargement of time within which the Applicant can file an application for leave to appeal to the Court of Appeal of Tanzania. It is supported by the affidavit sworn by Eliaicha A. Ndowo, an Advocate. 2 At paragraphs 2 & 3 of her affidavit, Eliaicha A. Ndowo stated that the time to file an application for leave to appeal to the Court of Appeal against the decision of Madame I.D Aboud, J delivered on 20th September, 2013 in Civil case NO 1 71 of 2008 expired on 4 th October, 2013. At paragraphs 6 & 8 of her affidavit, Eliaicha A. Ndowo stated that copies of judgment and decree were availed to the Applicant on 21 st November, 2013 and· that on 18 th December, 2013 her law firm filed Misc. Civil Application NO 427 of 2013 for leave to appeal to the Court of Appeal but it was struck out on 6 th May, 2014 due to some defects. 3 In her written submissions on behalf of the Applicant, Eliaicha A. Ndowo submitted inter - alia that the Applicant had promptly filed an application for leave to appeal to the Court of Appeal against the decision of this Court given by Madame I. D Aboud, J but that it was struck out. She prayed this Court to grant this application. In their written submissions, Counsel for the Respondents opposed this application. They submitted that according to the Court of Appeal Rules, 2009, the Applicant had to seek leave to appeal to the Court of Appeal within fourteen days of the decision. They stated that this application should not be granted as there is no sufficient reason that has I:''- 4 been given by the Applicant for the delay in filing its application for leave to appeal. They contended that the delay was caused by negligence on the part of the Applicant and that negligence does not constitute sufficient reason for extension of time and that even the application for leave which was struck out for having been made under wrong provisions of law was struck out due to negligence by Applicant of filing it under wrong . provisions of law. They prayed the Court to dismiss this application. In my opinion, this application has merit. I do not agree with counsel for the Respondent that the delay by the Applicant to file its application for leave 5 to appeal to the Court of Appeal was due to negligence. It is common knowledge to counsel for the Respondent that at first the Applicant lodged its application for leave to appeal within time but it was struck out on 6 th May, 2014. In my view, filing an application under wrong provisions of law does not tantamount to negligence. Doing so may be a result . of an oversight or lack of knowledge of a proper provision under which to file it. Again, I do not agree with counsel for the Respondent that no sufficient reason has been advanced by the Applicant for the delay in filing its application within time. Counsel for the Applicant submitted that the Applicant obtained copies of judgment and decree a month after the expiration of 6 the period within which to file its application for leave to appeal and that after obtaining the said copies, the Applicant acted promptly by filing an application for leave to appeal to the Court of Appeal. In my view, as the Applicant obtained copies of judgment and decree a month after the expiration of the period within which to file its application for leave, it cannot affirmatively be said that no sufficient reason has · been given by the Applicant for the delay. For these reasons, I grant this application for enlargement of time within which to file an application for leave to appeal to the Court of Appeal against the decision of this Court Madame I.D. Aboud, J delivered on 20 th September, 2013 in civil case NO 1 71 of 2008. The Applicant should file its 7 application for leave to appeal within fourteen days A.Shangwa JUDGE 30/10/2015 ,·,, \... - , · ~-t~livered in open Court this 30 th day of October, 2015 in the presence of Mrs. Eliaicha A. Ndowo and Mr. Hassan Faraja Principal officer of the · Applicant Company. A.Shangwa JUDGE 30/10/2015