20151218 TZHC Dar es Salaam 1

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 239 OF 2013 LEYLAND DAF (TANZANIA) LIMITED ................... APPLICANT V AZAN INVESTMENT ........................................ RESPONDENT Date of last Order 7/12/2015 Date of Ruling 18/ 12 /2015 RULING A.Shangwa, J Before this Court is a simple application for extension of time for the Applicant to lodge the Notice of Appeal out of time. It was filed by Gerald Shita Nangi, Advocate on behalf of the Applicant LEYLAND DAF (TANZANIA) LTD. It is supported by affidavit of Mr. Shafat Msuya who is the Manager of the \ 2 Applicant. Undisputably, the application arises from civil case NO 2-7 of 1995 in which this Court entered a default judgment against the Applicant for non appearance on the date fixed for mediation i.e 19 th May, 1995. The Applicant's principal claim against the Respondent was for payment of Tshs 81, 339, 250 /=.Allegedly, the Applicant's claim arose from the breach of contract for supply and delivery of a Leyland Bus. C According to the record, . since 1998, the Applicant has been encountering some legal problems in pursuing its appeal to the Court of Appeal against this court's default judgment entered against it on 19 th May, 1995. The first problem which 3 was encountered by the applicant occurred on 15th April, 2013 when the Court of Appeal struck out its appeal NO 97 of 1998 for being defective as the Applicant's Advocate did not sign the notice of Appeal. The second problem which was encountered by the Applicant occurred on 26 th August, 2013 when its application for extension of time i.e Misc. Civil Application NO 126 of 2013 was struck out for being I supported by an affidavit which was not attested by the Commissioner for Oaths in accordance with the decisions of the Court of Appeal in the case of FRANCIS MKOSAMALI V. JAMAL TAMIM, Civil application NO 4 of 2012 and in the case of M/S ...... .. \ 4 BULK DISTRIBUTORS LTD V. HAPPYNESS WILLIAM MOLLEL A.R Civil Application NO 126 of 2013 both unreported. As a matter of fact, Mr. Shafat Msuya's affidavit in support of this application tells it all. In my view, all of these problems which were encountered by the Applicant in pursuing its appeal against the default judgment entered against it in civil case NO 27 of 1995 and its tireless efforts in pursuing its appeal against the said judgment by ' laying its cards on the table through the present application for extension of time to lodge notice of appeal against the said Judgment makes me to disagree with counsel for the Respondent that this application has no merit and sufficient reasons to ' ' 5 grant it. Also, I disagree with Counsel for the Respondent in his argument that the Applicant's notice of appeal having been struck out twice for being incompetent shows lack of seriousness on the part of the Applicant's Advocate to pursue the Appeal. Had the Applicant's counsel not been serious in pursuing the appeal, they would have laid down their tools in pursuant of justice to the Court of Appeal which is the Court of the highest authority to all courts below including this Court. For these reasons, I grant this application. The Applicant should lodge their notice of appeal within seven days as of today:_,:.E;c1..c.h Party to bear its own Costs. (/.,_r._"'i. )'' -- L <"' :.~- ·• .• ' ~' A.Shangwa. ·JUDGE - ;✓-18/ 12/2015 - ~ ,-:· <--~_...,..... _ -,: . ., ' 6 Delivered in open Court this 18 th day of December, 2015 in the presence of Mr. Mangena for Applicant holding