20140905 TZHC Iringa 1

:tN THE HIGH COURT OF TANZANIA AT IRINGA MISCELLANOUS· CIVIL APPLICATION NO. 2 OF 2012 (Originating from Civil Case No. 34 of 2008 of Iringa District Court at Iringa) FIKIRIA MATHIAS NJALIGO ........... : .... APPLICANT VERSUS NATIONAL MICRORINANCE BANK ....... RESPONDENT ~ · 1 : 22/7/2014 .& 5/9/2014 ·, ,.__ ~;~ i.:.,-. '.\._ . i':··>✓ ··"._('..,.;\..,'- ·,-. _ _,..,~.....,.-"---- ~-'•\, ,. __/ __ /. ___ •• _ ... '------ RULING MADAM SHANGALI, J. The applicru;it FIKIRIA MATHIAS NJALIGO has filed this application seeking for leave to appeal out of time against the decision of the District Court of Iringa in Civil Case No. 34 of 2008. The application was filed under Section 14 (1) of the Law of Limitation'Act, Cap. 89. The same was duly supported by the affidavit ·deponed by her advocate Mr. Alfred Thoma'.s . Kingwe. The respondent, the NATIONAL MICROFINANCE BANK was represented by Mr. Binamungu, learned advocate. On the request of parties, the court allowed the 1 ~· - . ~ . • t ~ .•__ ;-:~ ~,): ~,~'f.r{~ •~~~:~~~ application to be heard by way of writte.n submission. • In his written submission Mr. Kingwe--stated that he was the advocate for the applicant/ plaintiff in the main Civil Case· No. 34 of 2008 before Iringa District Court which was dismissed for non-appearance on 21/2/2011. Being aggrieved ~y that dismissal. order they filed an application to. set it aside ., but the same was again dismissed on 15/6/2011. Dissatisfied with that decision the applicant filed a notice of appeal and applied for copies of the Ruling and the record of proceedings in order to prepare grounds of app~_al but the typing of the proceedings took a. long.~·ti:nre~.:.:ana...:·.w<i5r:e:.'.nor·;~::t.:i·.·;- ,. __- certified in time because the learned presiding Magistrate was on maternity leave. . He submitted that. after a follow-up they were supplied with a copy of the record of proceeding;s on 1/2/2012 and the certified ruling wqich was certified by another Magistrate on 2/7/2012. Therefore his main reasons for the delay to file his appeal in time was due to the failure by the trial District Court to supply the requested copies in time as provided under O.XXXIX Rule 1 (1) of the Civil Procedur·e~ . . ~~ Code and the f~t that the. time spent'for obtaining such requested copies must be exc~ude1 in computing the period. of ,_ limitation prescribed by the law. In r~sponse, Prof. Binamungu submitted to the effect that the whole application is short of merit and it appears · ' ; - ,.. ... .• ''1 ·.-. I ·: ;,l ~,--,.-•-.-·f~~~:_:~~~~ ~~~~=-.~i _ ~:-·~~~: . . : - ·--~ - _; l . • ·•. . v~gue in l:nany respects mainly on lack of evidence to support ·several allegations and claims made 9y the applicant's advocate. He stated that even the supporting affidavit is defective for failure to disclose the name and address of the attesting ·officer. Prof. Binamungu submitted that the main Civil Case No. 34 of 2008 was dismissed for want of prosecution on 21s t February, 2011. The applicatior:i to set . ~si~e tpe. dj.s.:missal order was filed on 22 nd March, 2011, after a period of 32 days from the date of dismissal. He contended that, that application was later dismissed again on 15th June, 2011 on the same ground namely for want of prosecution. Prof. Binamungu submitted that, the applicant claimed v ' that on 20 th June, 2011 he lodged a notice of appeal and applied for the copies of the Ruling and record of proceedings, put there is no copy of the alleged notice or letter of request attached or annexed to the affidavit or application to prove that assertion. In addition, the learned advocate argued that the applicant did not even apply for a drawn order as one of the necessary documents in filing an appeal, but yet he expected to file a valid appeal. Prof. Binamungu contented that there is no evidence to disclose as to when the applicant got knowledge that the copies of the requested documents were ,ready for collection because the applicant generally claimed to have been supplied with the documents on 1st February, 2012. ' 3 Prof. Binamungu submitted that assuming that the applicant's claims are correct that he collected the alleged documents on 1st February, 2012 he would .still be in trouble because having received the alleged documents on 1st February, 2012 he stayed put up to 2 nd April, 2012 when he filed his application. In the circumstances the applicant filed··· his application after almost 62 days from the time when he was equipped with the necessary. documents without assigning any reasons for filing it beyond 60 days. The learned advocate • argued that even the application for extension of time was filed out of time . • Finally, Prof. Binamungu submitted' th§'.t:.Jh~·''.a.pplic;a::nt··•"'··:::,:::'.·: ..... ... '•t,· •,l"/•~ ' ~ has failed to show due diligence in prosecuting his case. He cited the case of Dr. Ally Shabhay Vs. Tanga Bohora Jamaat ( 1997) TLR 305 •where the court stated that those who come to court of law must not show unnecessary idelay in doing so; they must show great diligence. He stressed that, the applicant has failed to show any sufficient reason for delay to warrant the extension of time. Having carefully gone through the application and having considered the submission from both sides vis-a-vis the requirement of th~ law, I am certain that this application .... ,, ought to fail for being untenable in law. I agree with the l j lear:i:ied advocate for the respondent that the application was indeed framed in a clumsy way and supported with a defective 4 t affidavit. The law· requires that a jurat of attestation should indicate the name and the signature of the attesting officer and not a mere rubber stamp of an advocate. - See the case of M/S Bulk Distributors Limited Vs. Happyness William :Mollel, AR Civil Application No. 4/2008 CAT (unreported). Reverting to the merits of the application, it is not in dispute that the chamber summons and its affidavit were not supported or annexed with · any document to support the allegation that immediately after .the trial court's decision . \\·-,: . there was any diligent follow-up by the applicant or/ and his ?-dvocate to obtain the required documents for appeal process. The alleged copy of notice of appeal or letter requesting for copies of record of proteedihgs and ruling were not · ~nexed/attached. The. copie~ of the record of proceedings or the ruling obtained on 1/2/2012 were not annexed/attached to the affidavit. The drawn order or decree which is also required under Order XXXIX Rule 1 ( 1) of the Civil Procedure Code was not sought and obtained. It is uppalatable that the decision intended to be challenged on appeal by the applicant has neither been revealed in the chamber summons nor a copy attached thereto. The application was filed recklessly and without due diligence. In his submission, the learned advocate for the applicant capitalized on bare assertion that the preparation of the 5 required documents took a long time and the presiding Magistrate failed to certify the same in time because she was on maternity leave. With due respect to the learned advocate, the law is clear that 'he who alleges must prove'. The learned advocate knows well the importance of attaching . evidence ~ . to ... . . .. . ' . . ,, prove any claim that he want the court to believe. · He could • have attached his application with the affidavits from the trial court's officials who were orally communicating with him. Absence of evidence to substantiate his assertions means absence of sufficient reason to warrant extension of time to appeal out of prescribed time. - See the case of Shanti Vs. Hindocho and Others (1973) 1 EA 207. The applicant have a duty to convince and satisfy this court with persuasive._ reasons as to why he should be given more time to file his appeal. The applicant must show that,, the-- -delay was not caused by his dilatory conducts, inaction, · negligence, or . compliancy. He must convince the court ,that he acted diligently and reasonably in pursuing his appeal process. In this application, the applicant has totally failed to perform that duty and as a result this application is hereby rejected and dismissed with costs. M. S. SHANGALI , ,,t, ,o.--.."'.,'i'• - , •••• ' rY -· ,, 1 ": ... , JUDGE. 5/9/2014 6 ·Ruling delivered todate 5 th September, 2014 1n the · presence of Mr. Kingwe learned advocate for the applicant and Ms. Kitta learned advocate holding brief for Prof. Binamungu learned advocate for the respondent. M. S. SHANGALI JUDGE 5/9/2014 7 ·. /\ :• •,'· ~;fi"'4\~-~t~ -~:;~,::·•.