20170531 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT"DAR ES SALAAM · CIVIL APPLICATION NO. 25/17OF 2017 NATION.AL.BANK OF COMMERCE.LIMITED ........................... APPLICANT VERSUS ·H·UMO'U:D .AL'I SA L·U.M ,.....•............ :••··································· RESPONDENT 1 (Application for Extension of time to serve the Respondent Notice of Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Mgaya, J.) dated 30 th day of November, 2016 in Land Case No. 92 of 2015 RULING 11 th May & stt1 June, 2017 MMILLA, J. A.: This is a ruling following a preliminary objection taken by Mr. John Nyange, learned advocate, on behalf of the respondent, Humud Ali Salum. They are challenging the competence of the application for extension of time within which to serve the respondent with a notice of intention to appeal filed by the applicant, National Bank of Commerce Limited. The notice of preliminary objection is grounded on two points as follows:: 1 · L That the applicaUon is incompetent for been preferred under the ...... wrong names of the .parties. · 2.. That the c!iPpiication is misconceived as the intended appeal itself is time barred. The preliminary objection is resisted by Mr. Gaspar Nyika, learned advocate for the applicant. At the outset, Mr. Nyange opted to abandon the second ground of the preliminary objection, thus leaving only the first ground to be proceeded with. Mr. Nyange's submission in support of this ground is that the appHcation for extension of time is defective because it mentions only one person as the respondent out of the four original plaintiffs in the case before the trial court. He illustrated that the intended notice of appeal mentions only Humud Ali Salum, but has omitted the names of the Branch Manager - NBC Muhimbili Branch (first defendant), National Bank of Commerce Ltd (second defendant), and Harvest Tanzania Ltd (third defendant). He contended that, since the intended appeal seeks to quash the whole decision as reflected in the notice of appeal; the applicant ought 2 ~· to- have ;included all the other parties because in the event the appeal will -··,'···-·. _.succeed,_the resulting,.:decision.is likely to affect the other _par.ttes too ... t-:te .rielied ..,c)n the cases , . .. '· · .-of Ayoub- ' . . .:-.: Chamsharria .v.. Parastatar Pension - ,· ., , ' . . Fund, CMI Appeal No. 89 of 2008, and Onesmo Nangole v. Dr. Steven Lemomo Kiiruswa, Civil Appeal No. 129 of 2016, CAT (both unreported). For those· reasons, he urged the Court to strike out the application with costs. On his part, Mr. Nyika submitted that it is not a mandatory requirement that aU the parties involved in the proceedings before the ilower court must be included in the notice of appeal. He also contended that the two cases relied upon by his learned friend are not applicable to the circumstances of the present matter because they are not to the effect that inclusion of such persons is mandatory. They are merely to the effect that it may be necessary to include them in certain circumstances, particularly where the principles of natural justice are likely to be affected. He added that because his learned friend failed to show that the circumstances in the present case demand that the rest of the parties should be included, the two cases relied upon by the respondent are distinguishable to the present case. 3 Besides, Mr. Ny:ika submitted that the concern raised by the . respondent is .not .something .to be .determJned by a single judge in an - .· .. appi:icatipn ior extensiqn o.f tlme. If at all, he submitted, it may be a proper complaint to be raised when the appeal may ultimately be placed before the full the full Court. He therefore asked the Court to dismiss the preliminary objection. I have intensely considered the competing arguments of both learned advocates. In the first place, it is important to point out that the application at hand is brought under the provisions of Rule 10 of the Rules. The usual and only concern of the Court in applications of the kind is whether or not a party moving the Court for an order of extension of time has shown sufficient cause as to why he delayed to do what he ought to have done within the time limited by law. As already pointed . out, the concern of the advocate for the respondent in the present matter is. the competence or otherwise of the application on the basis of omission of some of the parties. To start with, Mr. Nyika cannot be validly faulted in saying that it is not a mandatory requirement that all the parties involved in the 4 · .· proceedin.gs before the 1ower court must be included in the notice of . . . . ' the~ Rules which covers·.' matters of service of memorandum and recoid of appeal. That Rule provides that:- 11 (1) The appellant shall before or within seven days after lodging the memorandum of appeal and. record of appeal in the appropriate registf'½ serve copies of them on each respondent who complied with the requirement of Rule 86. (2) The appellant shall also serve copies of the memorandum of appeal and the record of appeal on such other parties to the original proceedings as the Court may at any time on application or of its own motion direct and within such time as the Court may appoint. ("[Emphasis provided]. Rule 86 of the Rules referred to in sub rule (1) of Rule 97 of the Rules above talks about persons on whom a notice of appeal is served. When this is read together with Rule 97 (2) of the Rules reproduced above, it becomes clear that it is not mandatory to include all the parties to the original proceedings. 5 Equally important, I agree with Mr. Nyika that the arguments adv:anoed _by Mr.. Nyange. in. thi.s preliminary objection constit_ute_ n_,atters which .are not-supposed to be dealt with in an application for extension of time. Since they refer to the competence or otherwise of the appeal, ipso facto, they are matters which may properly be raised during the hearing of the appeal if at all the application for extension of time will ultimately be allowed. That said and done, I hold that the preliminary objection lacks merit. It is therefore overruled. Order accordingly. DATED at DAR ER SALAAM this 31 st day of May, 2017. B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original.