Standard Chartered Bank T Ltd vs Bata Shoe Company T Ltd Civil Application No

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM Cl IVIL APPLICATION N 0.101 O f 2005 STANDARD CHARTERED BANK (TANZANIA) LTD ......... APPLICANT VERSUS • BATA SHOE COMPANY (T) LIMITED...................................... RESPONDENT (Application for extension of time to serve record from the Judgment of the High Court of Tanzania at Dar es Salaam) (Kim arO/J.) Dated 13 day cf December, 2005 in Commercial Case No. 3 of 2005 RULING 11th & 18th October, 2005 MSQFFE, 3 . A: This is an application for extension of tim e to serve the respondent with the m em orandum of appeal and the record of appeal in respect of Civil Appeal No. 62/2006 which was lodged in this court on 21/7/2006. The application which is m ade under Rule 8 of the Court Ruies, 1979 is supported by the affidavits of Aloysius S.K In order to appreciate the essence of the application the following background information is helpful. As already stated, the m em orandum and record of appeal in respect of Civil Appeal i'o. 62/20C6 were filed on 21/ 7/ 2006. Under Rule 90 (1) of the Court Rules the applicant w as supposed to serve these docum ents to the respondent before or within seven days after lodging them. To be specific, he was required to do so on or before 23/7/2005. Unfortunately he did not do so, hence this application for enlargem ent of tim e to effect the service. It is discerned from the affidavits in support of the application that Paul Kibuuka, an intern from the University of Dar es Salaam w orking in the law firm of Ishengoma, Masha, Mujulizi and Magai (Advocates), inadvertently overlooked to do so. The omission or failure was brought to the attention of Mr. Aloysius S. K. Mujulizi on M onday 31/ 7/ 2006. Three days later, that is on 3 / 8 / 2.006, this application was filed. Messrs. Mujulizi and Julius Kalolo - Bundala learned advocates for the applicant and the respondent, respectively, addressed me at length on the merits or otherwise of the application. In brief, Mr. Mujulizi w as of the view that what happened in the matter at hand was very unfortunate. However, he went oh to say, the omission did not occasion any injustice to the respondent. He accordingly prayed for the Court's indulgence and thereby grant the application. On his part, and again in a nutshell, Mr. Julius Kalolo - Bundala submitted that this was a case of gross negligence and inaction which should not be entertained by the Court. I have given careful thought to the argum ents advanced by learned counsel. Under Rule 8 the Court has power to extend time if sufficient cause is shown. T h e power is at the discretion of the Court. I agree with Mr. Julius Kalolo - Bundala that generally speaking inadvertence is not a sufficient cause for enlargem ent of time under Rule 8. However, in appropriate cases extension of tim e may be granted whoro n pnrty puis fnrwrwrl such pltsi. IO i rx,imp!<', in M ichscl Lcssani Kvveka versus John Ellafye (1997) T L R 152 at page 153 this Court (Kisanga, J. A.) stated thus: - " ............Although generally speaking a plea of inadvertence is not sufficient, nevertheless I think that extension of tim e may be granted upon such plea in certain cases, for example, w here the party putting forward such plea is shown to have acted reasonably diligently to discover the omission and upon such discovery, he acted promptly to seek remedy for it." In the instant case, Paul Kibuuka is shown to have overlooked serving the respondent's advocate with the docum ents on or before Friday 28/ 7/ 2006. Instead, an attem pt was made to serve the docum ents on 31/ 7/ 2006, three days beyond the prescribed time. Mr. Mujulizi s a y s in his affidavit that he discovered this omission on Monday 31/ 7/ 2006. W ithout wasting time, he drew and filed this application on 3/ 8/ 2006, as already stated. He did so before Civil Appeal No. 62/ 2006 w as set down for hearing. In my view, Mr. Mujulizi acted with reasonable prom ptness and diligence. In other words, the way he conducted himself in handling the matter after discovering the omission would warrant consideration of the discretionary power under Rule 8 in favour of the applicant. I accordingly grant the application with no order as to costs. A copy of the m em orandum of appeal and the record of appeal are to be served on the respondent within a period of three days from the date of delivery of this Ruling. DATED at DAR E5 SALAAM this 18th day of October, 2006. J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.