FAZLEHASAN GULAM ABBAS BHIMANI TA VS CANARA BANK T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 186 OF 2023 (Arising from Civil Case No. 82 of2021) FAZLEHASAN GULAM ABBAS BHIMANI T/A THE OFFICE FURNITURE ZONE................................. Ist APPLICANT THE OFFICE FURNITURE ZONE................................. 2nd APPLICANT MRS. FATMA FAZLEHASSAN BHIMANI..................... 3rd APPLICANT VERSUS CANARA BANK TANZANIA LIMITED............................ RESPONDENT RULING Date of last order: 04/04/2024 Date of ruling: 03/05/2024 AGATHO, J.: The ruling emanates from the Applicants' application for extension of time to apply for an order to set aside ex parte judgment and decree. The application was by way of chamber summons supported by an affidavit of Hassan Salum Hassan, advocate for the Applicants. The Respondent resisted the application through the counter affidavit deponed by her General Manager Credit, Kaushalendra Kumar Tiwari. The parties enjoyed the services of learned counsel. While Mr. Hassan Salum Hassan appeared for the Applicants, Mr. Innocent Tairo represented the Respondent. The application was heard by way of written submissions, 1 The law regulates the application for extension of time. Section 14(1) of the Law of Limitation Act [Cap 89 R.E. 2019] provides for the power of the Court extend time for institution of application like the one at hand. Being an application for extension of time the main issue is whether there is sufficient cause to grant the said application, that is to grant extension of time. The law requires the Applicants to show that sufficient cause exist for the court to extend time. The Applicants also have to account for each day of the delay. In this case the Applicants have alleged in paragraph 4 of the affidavit in support of the application that the delay was due to the court's delay in supplying them with the copies of the judgment and proceedings. This has been fiercely disputed by the Respondent. In paragraph 5 of the counter affidavit, it is clearly averred by the Respondent's witness that the judgment and decree were ready for collection on 13th July 2023. In paragraph 6 of the counter affidavit the deponent states that the judgment was delivered on 6th July 2023. In her view, the applicants negligently delayed until 27th November 2023 when they filed the present application. To the Respondent's view there is inordinate delay. We concur with this view. Moreover, it is the court observation that the Applicants have not provided any evidence to confirm that the court delayed supplying them with copies of judgement, and proceedings. They have failed to attach any letter they have written to the Deputy Registrar requesting to be supplied with the certified copies of proceedings, judgment, and decree. The Respondent has argued that it is the Applicants to blame because the copies of judgment, decree and proceedings were ready quite early. She added that the Applicant were obliged to follow up at the court, and there is no evidence that they really made any effort to seek for the proceedings. Moreover, the submission 2 of the Applicants does not state when exactly were the proceeding issued to them. The affidavit in support is silent on this. In my view the claim of delay caused by the court's failure to supply proceedings to the Applicants timely lack merit as there is no evidence given to substantiate the same. Here there is a lack of evidence to prove sufficient cause for the delay. Truly, the grant of extension of time is a discretion of the court which has to be exercised judiciously. In the case at hand the discretion cannot be exercised because the Applicants have failed to prove sufficient cause. Apart from that, the Applicants were duty bound to account for each day of the delay. Looking at the Applicants' application they completely ignored this requirement. The requirement for accounting for each day of the delay has been stated in the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 Court of Appeal of Tanzania at Arusha. In lieu of the foregoing the applicants have failed to convince the court to exercise its discretion to extend time. First, there is no sufficient cause, the claim that the court delayed supplying copies of proceedings, judgment and decree has not been supported with any evidence. In addition, the Applicants have not accounted for each day of the delay. For the above reasons, the application is dismissed for want of merit, As for costs, the Respondent shall have her costs. Order accordingly. DATED at DAR ES SALAAM this 3rd day of May 2024. 3 U. JAGATHO JUDGE 03/05/2024 Date: 03/05/2024 Coram: Hon. U. J. Agatho J. For Applicants: Abdallah Zungiza, Advocate For Respondent: Innocent Tairo, Advocate C/Clerk: E. Mkwizu Court: Ruling delivered today, this 3rd May 2024 in the presence of Abdallah Zungiza, learned counsel for the Applicants, and Innocent Tairo, Advocate for the Respondent. U.J/AGATHO JUDGE 03/05/2024 4