20140610 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. CIVIL APPLICATION NJO. 18 OF 2012 NATIONAL BANK OF COMMERCE LTD ........ ......... APPLICANT VERSUS MAZENGO FILING STATION ............................... RESPONDENT RULING 31/3/2014 & 10/6/2014 HON. R. K. MKUYE, J. The applicant, the National Bank of Commerce Ltd (hereinafter to be known as NBC Ltd} has through lshengoma, Karume, Masha and Magai Advocates, filed an application for extension of time to 1: . give notice of intention to appeal to the court of appeal from the ruling and order of this court in Civil Appeal No. 2 of 2011 between NBC Ltd and Mazengo Filing Station; and to file an application for leave to appeal to the court of appeal against the same order and for cots. The application is made under section 11 of the Appellate Jurisdiction Act, Cap 141, RE 2002, Rule 45(a} of the Court of Appeal Rules 2009 and section 95 of the Civil Procedure Code cap 1 33 RE 2002 and it is supported by an affidavit deponed by Mr. Gaspar Nyika, learned advocate for the applicant. According to the averments in the affidavit of Mr. Gaspar Nyika and the submission by Mr. Rwanzo learned advocate both from IMMA CO. Advocates, the reason for failure to file the notice of intention to appeal within time is that they were unaware of the delivery of the ruling sought to be appealed against because Mr. Rwanzo who was assigned to appear could not appear in court on the date (10/4/2012) scheduled for ruling since he had on previous day (9/4/2012) to participate in the baptism service for his new born baby. He contented further that he failed travel to Dodoma on that day because the baptism service were completed late and thus he was not able to catch the bus to Dodoma. He submitted further that none of the other advocates in the firm could appear on his behalf because they were already assigned to attend other matters for hearing in the High Court at Dar es Salaam. The learned advocate continued to assert that, when he made a follow up on Monday, the clerk informed him that the ruling was adjourned to another date to be notified but they did not get any summons or notice until on 18/5/2012 when again upon follow up, one Abdallah Nyembo notified him regarding the delivery of the said ruling on 16/4/2012. He also contented that, he without much delay filed this application to this court and he referred to this court the case of A. C. Gomes 1997 Ltd V Consolidated Holding Corporation Misc. Civil Application 2 No. 135 of 2010 where it cited with approval the case of Tango Transport Ltd Consolidated Civil Application No. 4 of 2009 and No. 9 of 2008 to show the deligency in filing the application. In reply, Mr. Njulumi learned advocate for the respondent, contested the application in that the applicant has shown no good/sufficient cause for the delay. The learned advocate contented that the applicant's advocates' reason of attending baptism services for his new born baby was not a sufficient cause. He argued that, other advocates from his firm could have appeared in court on his behalf. Alternatively, he could have arranged with any advocate in Dodoma to receive the ruling on his behalf on 10/4/2012. It was his view that, that was a mere lack of diligence on his part. The learned counsel argued further that, the claim that the said court clerk informed him about the adjournment of the affidavit the clerk was not mentioned. He was of the view that the applicant did not make any follow up until when Abdallah Nyembo informed him on 18/5/2012 about the same. He referred to this court the case of Umoja Garage V NBC (1997) TLR 109 and Salum Saruru Nabani V Zahoro Abdallah Zahoro (1988) TLR 41 to bolster his argument that no good cause was shown and he prayed for the application to be dismissed with costs. 3 In rejoinder, the learned counsel for the applicant submitted that, under Order XX rule 1 of the Civil Procedure Code the court ought to notify him of the new date after adjournment on 9/4/2012. He stressed that he did everything possible to follow up the case. He also argued that the case of Umoja Garage (supra) and Salum Sururu Nabani (supra) were distinguishable. That they filed this application soon after being informed of the status of the case on 14/5/2012. The issue here to be determined is whether sufficient cause for the delay has been shown. It is trite law that extension of time would be granted when sufficient cause has been shown. See (Enterprise Ltd V East African Development Bank Misc. Civil Application No. 135 of 1995). After having considered the submissions made by both counsel, it is without question that the advocate for applicant one Rwanzo had on 9/4/2012 attended the baptism service for his new born baby at the church which services ended after the possible public transport for Dodoma was not available. However, the fact that he had to attend his new born baby baptism services is not a good cause to warrant the grant of extension of time to file a notice of appeal as he could have arranged for another advocate from his 4 firm (IMMA ADVOCATES) to appear in court on his behalf. Much as the learned counsel said that the other advocates were assigned with other matters for hearing in the High Court at Dar Es Salaam, I don't find it to be a strong evidence in the absence of a copy of a Cause List or summons attached to the affidavit or even the other advocates' affidavit to support assertion. Alternatively, he could have, as rightly said by Mr. Njulumi, arranged with an advocate in Dodoma to hold his brief. Also he would have notified the court about his absence. That he did not do. The Advocate' s claim that he was informed by a court clerk about the adjournment of the ruling to another date is not substantiated by any evidence. The learned advocate did not even mention the name of the said clerk and there is no affidavit from such clerk to support the allegation. After having said that, I also find the allegation that Abdallah Nyembo had informed him that the ruling was already delivered is not sound since Abdallah Nyembo has not filed his affidavit to support it. Lack of such evidence puts the court into speculation as to whether the application at hand was filed soon after discovery or not. The application cannot rely on Order XX rule 2 that the court ought to have notified him of the change of date of the ruling where the first ruling date was fixed in his presence. He ought to make a follow up of his case. 5 Having said that, I agree with the counsel for the respondent submission that in fact no good reason/ cause has been shown to warrant the grant extension of time to file a notice of appeal to the court of appeal and an application for leave to appeal to the same court of appeal. In the event the application is hereby dismissed with costs. flyuC:j -5<_. (R. K. MKUYE) JUDGE 10/6/2014 Delivered on the 30 th day of June, 2014 in the presence of Mr. Ng'wigulu holding for Mr. Njulumi for the respondent and in the absence of the applicant. 6