CIVIL APPLICATIONNO 101 16 OF 2023 THE REGISTERED TRUSTEES OF CROWN EDUCTION TRUST VS AKIBA COMMERCIAL BANK

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 101/16 OF 2023 THE REGISTERED TRUSTEES OF CROWN EDUCATION TRUST......... .................. ............. ....... ....... APPLICANT VERSUS AKIBA COMMERCIAL BANK........................... ..................... RESPONDENT (Application for an Extension of time to lodge a notice of address for service in respect of the intended appeal against the decision of the High Court, Commercial Division, at Dar es Salaam) fMaruma, 3.^ dated the 11th day of November, 2022 in Commercial Case No. 97 of 2022 RULING 2 Jd April & 7th August, 2024 KAIRO. J.A.: Before me is an application for extension of time to lodge a notice of address for service in respect of the intended appeal against the decision of the High Court, Commercial Division, at Dar es Salaam. The application has been preferred under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by two affidavits sworn by Frumence Joachim Shirima, the applicant's registered trustee and Bertha Seleman Nanyaro, the applicant's advocate. The applicant has further filed a written submission in support of the application on 26th April, 2023 and sought to adopt it as part of his oral submission. On the other hand, the respondent did not file any affidavit in reply. At the hearing of this application the applicant was represented by Mr. Norbert Mlwale, learned advocate, while Mr. Nsajigwa Bukuku, learned advocate, appeared for respondent and intimated to the Court that the respondent does not intend to oppose the application. Briefly, the background of this dispute gathered from the record as deponed in affidavits are that, the applicant had instituted Commercial Case No. 97 of 2021 against the respondent at the High Court of Tanzania, Commercia Division. After hearing the parties, the trial court delivered the judgment in favour of the applicant. The outcome did not amuse the respondent, and thus, decided to initiate appeal process by lodging the notice of appeal and served a copy on the applicant through his advocate on 15th November, 2022. That the advocate accordingly informed the principal officer of the applicant, Mr. Shirima and enquired from him if his firm would continue defending the intended appeal on the applicant's behalf, but due to inadvertence, no confirmation was received until February, 2023. By that time, the fourteen days within which to lodge the notice of address for service had expired. According to Mr. Mlwale, the delay by the applicant to confirm the instructions constitutes good cause to warrant the extension of time sought. He referred the Court to its previous decision in the case of Bulyanhulu Gold Mine vs George Allen Gwabo, Civil Application No. 23 of 2015 and Jums Shomari vs Kabwere Mambo, Civil Application No. 330/17 of 2020 (both unreported) to back up his argument. He went on to submit that, immediately after getting the confirmation and realizing that the time within which to lodge the address for service had long lapsed, the applicant through his advocate filed this application promptly which he argued, shows diligence on her part. To bolster his argument, the learned advocate cited the case of Kambona Charles (as an Administrator of the Estate of the late Charles Pangani) vs Elizabeth Charles, Civil Application No. 529/17 of 2019 (unreported). He also added that, failure by the applicant to file an affidavit in reply depicts that, the application stands unopposed, citing the cases of Life Promoters Society Tanzania vs Hippolitus Pamphil Njau, Civil Application No. 269/05 of 2019 and William Getari Katege vs Equity Bank and Another, Civil Application No. 24/08 of 2019 (both unreported) to fortify his submission. Mr. Mlwale concluded that, since the applicant cannot be represented unless the notice of address for service has been lodged, it was imperative to file this application, so that the applicant can be granted the extension of time sought and have legal representation, thereby guaranteeing her right to be heard. He therefore prayed the Court to grant the applicant's prayer. As alluded to earlier, the respondent did not object to the application and prayed costs to be in the cause. I have given careful thought to unopposed arguments advanced by Mr. Mlwaie. Indeed, it is a long-settled position of law that, the Court has the power to extend time under rule 10 of the Rules where the applicant has exhibited sufficient cause. It is noteworthy that, the said power is at the discretion of the Court. However, what exactly constitutes good cause was not codified although this Court has, in various instances, stated a number of factors to be considered. These includes; whether or not the application has been brought promptly; an existence of valid explanation for the delay and whether there was diligence on the part of the applicant. [See: Tanga Cement Company Limited vs Jumanne D. Masangwa & Another, Civil Application No. 6 of 2001 and Tauka Theodory Ferdinand vs Eva Zakayo Mwita (Administratix of the estate of the late Albanus Mwita), Civil Application No. 300/17 of 2016] (both unreported). In the instant matter, the cause of delay was associated with the inadvertence on the part of applicant for his failure to confirm to his advocate that he should further represent the applicant in the intended appeal to Court after being served with the notice of appeal. I am fully aware that, generally, inadvertence is not a sufficient cause for enlargement of time under rule 10 of the Rules. However, in appropriate cases, the Court can exercise its discretion and grant the extension of time sought despite such finding. [See: Michael Lesani Kweka vs John Eliafye (1977) T.L.R 152 and Standard Chartered Bank (Tanzania) LTD vs Bata Shoe Company (T) Limited, Civil Application No. 101 of 2006 (unreported). In Michael Lesani Kweka (supra), the Court, in a similar scenario observed as follows before granting the extension of time sought: " ... Although generally speaking a plea o f inadvertence is not sufficient, nevertheless I think that extension o f time may be granted upon such piea in certain cases, for example, where the party putting forward such piea is shown to have acted reasonably diligently to discover the omission and upon such discovery, he acted promptly to seek remedy for it. [Emphasis added] It is on record that, the advocate did not receive further instructions from the applicant that he should proceed to represent them in the intended appeal until February, 2023. Though he did not state the exact date, this application was filed on the same month on 21st February, 2023. Thus, even if it is assumed that the confirmation was given on the very first day of February, the rest of the days, in my view, were used for research and paperwork preparation before the filing of the application. As such, I am convinced that, the learned advocate's action to promptly file this application after getting the confirmation, displayed diligence in taking the appropriate remedy om behalf of the applicant. The Court in Bulyankulu Gold Mine (supra) observed as follows when faced with similar circumstances: "For the reasons stated herein above by the learned advocate for the applicant, I entirely agree with him that as they were prompt and diligent that is sufficient/good cause to use my discretion to extend time" [emphasis added]. In the same vein, the promptness and diligence exhibited by the advocate for the applicant, coupled with the fact that the application stands uncontested, which shows that the averments therein are undisputed, in my view warrants the grant of the prayer to extent time to file notice for address of service as prayed. Consequently, I hereby grant the same and further order the applicant to file the said notice within fourteen days from the date of this ruling. Costs to be in the cause. It is so ordered. DATED at DAR ES SALAAM this 5th day of August, 2024. L. G. KAIRO JUSTICE OF APPEAL The Ruling delivered this 7th day of August, 2024 in the presence of Ms. Bertha Nanyaro, learned counsel for the applicant and Mr. Msajigwa Bukuku, learned counsel for the respondent, is hereby certified