LEONARD RUSUMBANYA NGWANIJE VS FIRST NATIONAL BANK T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM Misc. Commercial Application No. 66 of 2018 (Arising from Commercial Case No. 125 of 2014) LEONARD RUSUMBANYA NGWANIJE ..................... APPLICANT VERSUS FIRST NATIONAL BANK TANZANIA LIMITED................... RESPONDENT RULING Date of the Last Order: 05/07/2018 Date of the Ruling 09/07/2018 SEHEL, J. This ruling is on application for extension of time within the applicant can lodge its notice of appeal out of time. It is made under Section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 and its supported by an affidavit of Leonard Rusumbanya Ngwanije, the applicant. The application was filed on 28th March, 2018. The main reason advanced for the delay in lodging notice of appeal in time is that the applicant belatedly became aware of the judgment that was delivered in his absence on 22nd November, 2016. He said after i becoming aware of the existence of the said judgment he was advised to write a letter asking for the copy of which he secured the judgment on 30th March, 2017 thus on 11th May, 2017 he filed his first application for extension of time but on 28th February, 2018 it was strike out for being incompetent hence the present application. The respondent on her part filed a counter affidavit objecting for the same to be granted averred that the applicant has no justifiable reason as to why he failed to lodge his notice after he became aware of the existence of the judgment. At the hearing, the applicant appeared in person, unrepresented and the respondent was represented by the learned advocate Innocent Mushi. Being layperson, he had nothing much to add apart from stating that he has explained his reasons in his affidavit and he prayed to adopt it. He further explained that he could lodge the notice of appeal in time after he became aware of the existence of the judgment since he was unaware of what was decided therein. He therefore prayed for his application to be granted. 2 The learned advocate in his reply adopted the arguments advanced in his counter affidavit and added by inviting the Court to take judicial notice on Misc. Commercial Application No. 112 of 2017 wherein the applicant said that he became aware of the outcome of the judgment that it was not in his favour and failed to lodge of appeal. In rejoinder it was insisted that the applicant did not know the outcome of the case thus he could not file the notice in time. As I said the applicant herein is seeking for an extension of time to lodge notice of appeal out of time. The application is made under Section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 which provides: “Subject to subsection (2j, the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the 3 O case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired." It follows from the above provision of the law that the court has a wide discretionary power to extend time for giving notice of intention to appeal, for making an application for leave to appeal and for a certificate that the case is a fit case for appeal. It is settled law that extension of time may only be granted where it has been sufficiently established by an applicant that the delay was with sufficient cause. (See Kalunga and Company Advocates Vs National Bank of Commerce Limited [2006] T.L.R 235). It is repeatedly held by the Court of Appeal of Tanzania that what amounts to sufficient reason or good reason has not been defined but a number of factors have to be taken into account by the Court in exercising its discretionary powers. These factors have been well enumerated in the case of Lyamuya Construction Company Limited Vs Board of Registered Trustees of Young Women’s 4 Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported-CAT) that: "(a)The applicant must account for all the period of delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance/ such as the illegality of the decision sought to be challenged." Let me now apply the above criteria to the matter at hand. We are told that the judgment was delivered on 22nd November, 2017 in absence of the applicant. The applicant having become aware of the existence of the judgment applied in writing to be supplied with the copy of the said judgment which was supplied to him on 30th March, 2017. After securing the copy of the judgment, on 27th April, 2017 the applicant filed his earlier application for extension of time, 5 Misc. Commercial Application No. 112 of 2017 which was struck out 28th February, 2018 for being incompetent. It be noted here that it took the applicant almost one month from the date he secured a copy of the judgment to the filing of application. I find that the time taken to file his earlier application was prudent enough for him. It took another one month for him to file this application which as I said he filed it on 28th March, 2018 which also I take it to be done within the reasonable time. Generally the applicant managed to account for of his delays and the delays taken by the applicant in filing his applications were not inordinate. The applicant further stated in his affidavit that he applied for copy of the decision from the Court which was supplied to him on 30th March, 2017. The delay for being supplied with a copies of proceedings and judgment from the Court is considered to be with sufficient reason as held in the case of Benedict Mumello Vs Bank of Tanzania, Civil Appeal No. 12 of 2002 (Unreported-CAT). This being the case then under the circumstances I am satisfied that the applicant was diligent and he did all that was within his powers, and 6 that the delay was beyond his control. The delay was with sufficient reason. It is upon the above reasons that I allow the application. Extension of time is granted to the applicant within which to file a notice of appeal to the Court of Appeal of Tanzania which notice shall be lodged within 30 days from the date of this ruling. According to the circumstances of the case, that the delay of supplying the copy of judgment was not occasioned by the parties, I make no order for costs. It is so ordered. DATED at Dar es Salaam this 9th day of July, 2018. 9th day of July, 2018. 7