ephata joshua kitally vs national bank of commerce limited 2022 tzhccomd 30 23 february 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 102 OF 2021 (Arising from Commercial Case No. 190 of 2002) EPHATA JUSHUA KITALLY.................................... APPLICANT VERSUS NATIONAL BANK OF COMMERCE LIMITED.......... RESPONDENT Date of last Order; 28th October, 2021 Date of Ruling: 23rd February, 2022 RULING MKEHA, J; In the present application, the applicant is through Mr. Maeda learned advocate seeking extension of time so as to file notice of appeal and an application for leave to appeal to the Court of Appeal. If successful, the applicant would be challenging this court's decision to the Court of Appeal which was delivered almost two decades ago. The decision sought to be challenged was delivered on 11/09/2002. The application is made under section 11 (1) of the Appellate Jurisdiction Act, 1979. It is supported by a n affidavit of Ephata Joshua Kitally, the applicant. The same is contested by a counter affidavit of Dikson Ikingura. According to the learned advocate for the applicant, the applicant became aware of the decision against him in 2009 and that is when he filed an application for extension of time in view of taking necessary steps to challenge the said decision. The application was dismissed on 23/09/2010. He promptly appealed without leave to the Court of Appeal of Tanzania. An objection was raised by the respondent and sustained by the Court of Appeal that, the appeal was incompetent for want of leave. The same was struck out for a reason of incompetence. The Court of Appeal's decision striking out the said appeal was delivered on 9/03/2017. According to the applicant, the reasons for delay in taking necessary action are contained in paragraphs 9 & 10 of the affidavit supporting the application. In terms of paragraph 9 of the said affidavit, the applicant believed that the High court in hearing Commercial Case No. 190 of 2002 was seating as a court of first instance exercising original jurisdiction, so appeal to the court of Appeal would be without leave, even when challenging this courts decision which denied him extension of time, to file an application to set aside the judgment passed on 12/09/2002 and filing defence. However, in terms of section 5 (1) (c) of the Appellate 2 | Page Jurisdiction Act, that was not the case. The appeal without leave was struck out for a reasons of incompetence. Again, under paragraph 10 of the applicant's affidavit it is indicated that, the application was financially incapable in 2017. Whereas the applicant had earlier alleged not to have been served with notice or summons to appear and apply for making defence, he had no reply to the respondent's counter affidavit. The said counter affidavit indicates in paragraphs 5 & 6 that, there was sufficient evidence of an affidavit sworn by one Mr. Adam who is on record that summons in respect of Commercial Case No. 190 of 2002 which was a summary suit was served to the applicant on 6th July 2002. That, the applicant was aware of Commercial Case No. 190 of 2002 which was instituted by the respondent against him but failed to appear for no apparent reasons. According to Ms. Rashida learned advocate for the respondent, there were no sufficient reasons for the delay. The only issue for determination is whether there are sufficient reasons for the delay. Whereas the Court of Appeal decision striking out the applicant's appeal which had been preferred against the ruling of this court was delivered on 09/03/2017, this application was filed on 23/07/2021. The applicant deposed in his affidavit that he was financially incapable in 2017. He said nothing regarding the time between January 2018 to the 23rd day of July, 2021. In view of the decision in BUSHIRI HASSAN vs LATIFA LUKIO MASHAYO, CIVIL APPLICATION NO. 192 OF 2016, delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. I have indicated herein above that the applicant did not challenge the respondent's counter affidavit regarding the fact that, the applicant had been served with all necessary summonses hence the allegation on illegality remains without supporting evidence from the applicant's affidavit. That leads me into holding that the applicant has failed to bring forward his reasons for the delay. For the foregoing reasons, the application is dismissed for want of merits. The applicant is condemned to pay costs of the application to the respondent. It is so held. Dated at DAR ES SALAAM this 23rd day of February, 2022 C.P MKEHA JUDGE 23/02/2022 Court: Ruling is delivered in the presence of the parties' advocates. 23/02/2022 5 | P a g e