do hye yeon vs lazy lagoon isalnad lodge 2017 tzhc 2210 8 february 2017

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 136 OF 2015 (Originating from High Court Civil Appeal No. 130 of 2013) DO HYE YEON..................................................................APPLICANT VERSU S LAZY LAGOON ISALNAD LODGE..................................RESPONDENT Date of Last Order: 23/11/2016 Date of Ruling: 08/02/2017 RULING FELESHI, J.: This ruling is in respect of an application made by way of Chamber Summons in terms of Order XXXIX Rule 19 of the Civil Procedure Code, [CAP. 33 R.E, 2002], section 14(1) and item 9 of part III of the Law of Limitation Act, [CAP. 89 R.E, 2002] for extension of time to apply for leave to restore a dismissed Civil Appeal No. 130 of 2013. The said appeal was dismissed on 17th day of February, 2015 for want of prosecution. The Chamber Summons was supported by an affidavit and reply to counter affidavit sworn by Stephen Asseri Msuya, advocate. On the other hand, the respondent preferred a counter affidavit affirmed by Gigi Maajar. On his part, the deponent for the applicant averred that, on 03/08/2014 and 18/11/2014, the appeal was scheduled for some orders but the Court file could not be traced. On 20/11/2014, the date when one Theresia held his brief she informed him that the matter had been assigned to Ruhangisa, J. and that they would be informed through summons of hearing. Page 1 of 4 The deponent added that, on 28/02/2015 upon further follow up, he was informed by one Josephine that the appeal had been dismissed for want of prosecution with a copy of the same furnished to him on 25/03/2015, hence, this application as he was already time barred for the purposes of an application for restoration of the dismissed appeal. The hearing of the application was conducted by way of written submissions whereas parties complied with the Court schedule, hence, this Ruling. In this matter, the applicant engaged services of S.A. Msuya & Co. Advocates while the respondent was represented by Hallmark Attorneys. Submitting for the merits of application, the applicant's counsel complimented what is stated in the affidavit that the delay of three days was occasioned by failure to be furnished with the requisite dismissal order. He added that, the delay to be notified was occasioned by transfer of Ruhangisa, J who was assigned the conduct of the appeal for they were informed that summons would be issued after the appeal has been reassigned to another Judge. He thus prays for extension of time. In response, the respondent's counsel submitted in a nutshell that, the applicant has not accounted for the delay per a chain of decisions of the Court of Appeal of Tanzania including though not limited to Regional Manager, Tanroads Kagera vs. Ruaha Concrete Company Limited, Civil Application No. 96/2007, (Dar es Salaam Registry), (Unreported) and Ratma vs. Cumarasamy and Another [1964] 3 All E.R 933. Notably, for undisclosed reasons, the applicant did not prefer a rejoinder. Page 2 of 4 Having considered the Court record and the respective submissions by counsel for the parties, the following are the deliberations of this Court in disposal of the application. From the above submissions, parties have unnecessarily volunteered at length addressing for merits in restoration of the appeal which is not subject of this application as parties were invited to account for merits of the sought extension of time to lodge the intended application for extension of time, that is, the lapsed three days. To this Court, the advanced reason albeit brief is to the effect that the applicant was unable to lodge the application for restoration of the dismissed appeal within the prescribed time limit for 3 days due to failure of the Court to supply the applicant with the requisite dismissal order. That suffices good reason of the delay in the interest of justice. It is from the above this Court grants the sought prayer for extension of time with an order that the same be lodged within fourteen (14) days from date of this ruling. Considering the circumstances of this matter, this Court refrains from awarding costs to either party in the interest of justice. Order accordingly. v COURT: Ruling delivered this 8th day of February, 2017 in presence of in the presence of Mr.Msuya, Advocate for the Applicant and Mr.Marlyn Kitali, Advocate for the Respondent. Page 4 of 4