NA TZHC Arusha

' I L" IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA )' ~►' . ' I [IN THE DISTRICT REGIS1"RY] AT, ARUSHA 1 I MISC. - CIVIL APPLICATION . NO.144 OF 2016 I (Originating from Civil Case No.2 of 2016, Resident Magistrate Court of Arusha) I MARY ALEX MALLYA ••••••••••• !• • • • • • • • • • • • • • • • • • • • • • • • • 1 • • • • • • • • • • • • • • • APPLICANT i VERSUS I I KIMANDOLU UTUFAMILI SAV~NG @ CREDI~ I COOPERATIVE SOCIETY ....... J....................... 1. ••••••••••• RESPONDENT ,RULING Date of last Order: 7/2/2017 Date of Ruling: 24/2/2017 BEFORE: S.C. MOSHI, JUDGE~ The applicant named above filed an application made under the provisions I of Section 14(1) of the Law of Limitation Act, Cap.89 R.E. 2002, Section 95 i and Order XLIII Rule 2 of the 1 Civil Procedure Code, Cap.33 R.E. 2002 1 applying for the following ordersi- 1 I I 1. That, the Honourable court may be pleased I to make an order extending the time for the applicant to file appeal in this court vide . i Civil Case No.2/2016 between Kimandolu Utu Family Saving and I I Credit Cooperative Society Versus Mary Al ex Mallya at the Resident 1 Magistrate Court of Arusha' 1 j. 2. That, the Honourable Court grants any other order it deems fir. Before this Court, the applicant was represented by Allen Godian Advocate while the respondent was represented by Mr. Koisenge learned Advocate. This court ordered the hearing of the application to be conducted by way of written submissions whereby the Applicant was ordered to file written submissions by 8/11/2016, the respondent to file reply by 22/11/2016 and rejoinder if any to be filed by 29/11/2016. Both parties filed their submissions accordingly. Arguing the application, the Applicant's counsel submitted that, the Applicant herein, was the defendant in the main Civil Case, No.2/2016, which was heard ex parte in the Resident Magistrate Court at Arusha, and ex parte judgment delivered on 23 rd March, 2016. After the ex parte judgment and decree given, it's when the respondent herein who was the Plaintiff wanted to execute his decree, and the respondent came to realize that his house was on sale by the Court broker. Therefore he had to find ways to defend his rights over the house. She then realized there was an ex parte judgment. Her application was heard by the Resident Magistrates' Court and dismissed for lack of sufficient reason for setting aside ex parte judgment. He further contended that, after the said ruling, he intended to prefer an appeal directly from an ex parte judgment hence this application for extension of time to file her appeal before this Honourable Court and she referred to the case of SIMON RICHEL NNKO VS NYARI LEMBUKYI NNKO, Misc. Land Application No.1 of 2010. She further submitted that, from various decided cases by our Courts, it has been well established that, the Judgment passed ex parte should be challenged by 2 making application to set ex parte judgment first before appealing to the higher court and cited the case of MANAGING DIRECTOR OF NITA CORPORATION VS EMANUEL LT. BISHANGA [2005] TLR 382. She further submitted that, in this situation the applicant herein had to make an application to set aside ex parte judgment before utilizing other remedies including appeal in this Honourable Court. After the option of setting aside ex parte judgment having been dismissed, the only option that the applicant had, is to appeal against the said ex parte decision. He contended that, the Applicant spent her time in the Resident Magistrate Court, making application for setting aside ex-parte judgment which the application was denied and failed to appeal in this Honourable Court on time. In the process of making application to set aside ex parte judgment, time to appeal was elapsing, and when the Applicant wanted to appeal to this Court time had already elapsed and therefore the applicant herein cannot appeal before being given extension of time. He added that, the Applicant was not drowsy and careless on filing the appeal in time, but she spent a lot of time trying to set aside ex parte judgment in the Resident Magistrates' Court. He further contended that, the intended appeal has chances of success, as the Honourable Magistrate erred in law and facts in determine the case at hand, and therefore made a lot of errors. In reply, the respondent's counsel submitted that this application was filed on 25/07/2016 that is, after four months and two days later. He further contended that, the two provisions which moves the Court are superfluous and therefore irrelevant at this stage albeit that there are relevant and specific provision for the Court to be moved. 3 He further added that, there is no sufficient reason that has been advance to move this Court to exercise its discretional power to grant the Application. Extension of time is given if sufficient reasons or reasonable cause for delay has been disclosed and cited the case of MICHAEL K. KWEKA VS JOHN ELIAFYE [1997] TLR 152. He further contended that, in any application for extension of time, the Court will not grant such extension of time where the Applicant fail to disclose when he became aware or get to know the existence of the said order or judgment sought to be appealed against was delivered and he referred the case of COSMAS CONSTRUCTION CO. LTD VS ARROW GARMENTS LTD [1992] TLR 127. It was further submitted that, the Applicant in his Chamber Summons does not disclose the date of judgment subject matter of the intended Appeal. She, however disclosed such date in the supporting Affidavit and proceeds to alleged that she spent most of her time dealing with the Application to set aside ex parte judgment however neither the supporting Affidavit nor the submission in chief which categorically states or plead when that application was filed, when was it dismissed; determined and for how long did it stand pending before the lower court. He contended that, the Applicant in her general assertion and blanket allegations did not disclose the sequence of events to enable this Court to gauge the delay and see whether the time spent worth any exclusion or exemption or whether the Applicant acted diligently. He submitted that, the Applicant did not disclose how she spent days and time from 23/03/2016 to 25/07/2016. 4 In the absence of correct account on how each day was spent, then this Court cannot gauge whether the Applicant had materially acted reasonably, diligently and this is the only way in which one may find sufficient reasons for delay. He therefore submitted that this application is without merits hence worthy to be dismissed. I have considered the submissions of both parties. In this application, the Applicant seeks leave to file appeal out of time under the provisions of Section 14(1) of the Law of Limitation Act, (supra) which provides that; 11 Notwithstanding the provisions of this Act the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application." (emphasis is mine) As indicated above, so as this court to exercise its discretionary powers to extend time to file appeal out of time, the Applicant must give sufficient or reasonable cause for the delay. The reason advanced by the Applicant in his affidavit and submission in support of the application is that he was dealing with an application to set aside the ex parte judgment, and that application having been dismissed he opted to resort on filing an appeal challenging the ex parte judgment but time to file that appeal had already elapsed. The records reveal that the ex parte judgment was 5 • delivered on 23 rd March, 2016 and thereafter she filed an application for extension of time to file application to set aside the ex patte judgment. The Applicant did not state as to when the ruling for extension of time to file an application to set aside the ex patte order was delivered in order this court to determine whether this application was filed promptly after the dismissal to an application for extension of time before the Resident Magistrates' Court. From 23 rd March, 2016 when ex patte judgment was delivered to 25th July, 2016 when this application was filed about four months lapsed. In the case of LYAMUYA CONSTRUCTION COMPANY LTD VS THE BOARD OF REGISTERED TRUSTEES OF YOUNG WOMEN'S CHRISTIAN ASSOCUATION OF TANZANIA, Civil Application NO.2/2010, Court of Appeal of Tanzania at Arusha (unreported) it was stated that; "The Applicant must account for all the period of delar✓ the delay should not be in ordinate. " Considering the above position, the Applicant was required to account for the delay of each day from the time when ex patte judgment was delivered to the time when he filed this application but the Applicant failed to do so. He also did not state the date when the ruling denying an application for extension of time before the Lower Court was delivered. Therefore, basing on that, I find that the Applicant has failed to give reasonable and sufficient reasons for the delay hence this application is dismissed. Order accordingly. 6