tina co limited others vs eurafican bank t ltd 2016 tzca 744 29 january 2016

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 86 OF 2015 1. TINA & CO. LIMITED 2. WOLFGANG SPENGLER .APPLICANTS 3. MRS. CHRISTINE VtKSUS EURAFRICAN BANK (T) LTD NOW KNOWN AS BOA BANK (T) LTD.........................................RESPONDENT (Application for extension of time to file an application for stay of execution against the judgment and decreeof theHigh Court of Tanzania (Commercial Division)at Dar es Salaam) fwerema, J.) Dated the 24thApril, 2009 in Commercial Case No. 80 of 2006 RULING 8th December,2015 & 29th January, 2016 MWARIJA, J.A.: By notice of motion filed on 27/04/2015, the applicants brought this application seeking for the following: " (i) the applicants may be granted extension o f time to file a notice o f motion for stay o f execution against the decree passed by the High Court o f Tanzania (Commercial Division) in Commercial case No. 80 of 2006. (ii) That; this Honorable Court be pleased to grant the applicants extension o f time to serve the respondent with a Notice o f Motion for stay o f execution out o f time. i (iii) Any other relief the Honorable court will deem just and tit to grant." The application which has been brought under rules 10 and 48 (1) and (2) of the Court of Appeal Rules, 2009 (the Rules) is supported by fhp of CZrarp Nskahi inn AHy/nr^f~Q When the application was called on for hearing on 8/12/2015, it transpired that the respondent had not been served with a notice of motion thereof under rule 55 (1) of the Rules. Under that rule, the notice of motion and the supporting affidavit ought to have been served to the respondent not less than two clear days before the date of hearing. As a result, Mr. Audax Vedasto, learned counsel who appeared for the applicants, made an informal application under rule 48(3) of the Rules praying to be granted extension of time to serve the notice to the respondent. Advancing the reason for the delay, the learned counsel contended that the delay was caused by the applicants' act of engaging him late. He said that he was engaged on 7/12/2015, a day before the hearing date and could not therefore, act within time. Mr. Dilip Kesaria, learned counsel appeared for the respondent. He opposed the prayer for extension of time to serve the respondent with a notice of motion. He argued firstly, that rule 48(3) of the Rules relied 2 upon by the counsel for the applicant is not applicable because hearing of the application has not taken place. Secondly, Mr. Kesaria argued that in order to be granted extension of time under rule 10 of the Rules, the applicant must show a good cause for the delay. For this reason, he argued that the applicants ought to have filed a formal application supported by an affidavit. He stressed that in the absence of such an application, evidence proving existence of sufficient cause for the delay is lacking because the same cannot be adduced by an advocate from the bar. He prayed therefore that the application be dismissed for want of prosecution. In rejoinder, Mr. Vedasto reiterated his argument that the delay in serving the respondent was due to the fact that the applicants, who had been previously represented by another advocate, engaged him within a short period from the date of hearing. On the effect of non-compliance with rule 55(1) of the Rules, the learned counsel argued that the effect is not to dismiss the matter for want of prosecution. The effect, according to his argument, is to strike out the application. Citing the case of Temende Butolela & Another v. Attorney General, Civil Application No. 4 of 2010 Mr. Vedasto argued further that the time of serving the respondent with a notice of motion may still be dispensed with. I will not be detained by the issue whether or not the learned counsel for the applicants has properly invoked rule 48(3) of Rules in making his informal application for extension of time. According to rule 48(1), every application to the Court shall be made by way of notice of motion supported by an affidavit. However sub-rule (3) (a) of rule 48 provides for an exception to the applications made in the course of hearing. It states as follows: "(3) The provisions o f this rule shall not apply - (a) To applications made in the course o f hearing." According to Oxford Advanced Learner's Dictionary, 7th Edition, the meaning of the words "in the course of" is: "going through a particular process." In this case, the application had been called for hearing when the learned counsel for the applicants made his informal application for extension of time. The hearing process had therefore commenced. In that context, it is my considered view that an application under rule 48(3) of the Rules may be made at any time after the case has been called for hearing, not necessarily at the stage where actual hearing has taken place. With regard to the application for extension of time, the position as stated by Mr. Kesaria is that, in order to be granted extension of time under rule 10 of the Rules the applicant must establish that a sufficient cause exists for the delay in serving the notice of motion and supporting affidavit to the respondent within the prescribed time. Mr. Vedasto has attributed the delay to the fact that he was belatedly engaged by the applicants. He did not state, and could not indeed, be competent to account for the delay by the applicants as regards the period before they engaged him. The application was filed on 27/04/2015 but until the date of hearing, the applicants had not complied with the requirement of serving the respondent as provided by rule 55(1) of the Rules. To be granted extension of time therefore, they had the duty of establishing a sufficient cause for the delay. As argued by Mr. Kesaria, that should have been done through a formal application because it is necessary to establish by evidence the factors underlying the delay. This cannot be done through arguments by an advocate because arguments and submissions by an advocate in court cannot be a substitute of evidence. The principle is clearly stated in the case of Trasafrica Assurance Co. Ltd v. Cimbria (E.A.) Ltd (2002) E.A. 627. In that case, the Court of Appeal of Uganda stated as follows: "As is well known a statement o f fact by counsel from the bar is not evidence and therefore, court cannot act on. " On the basis of the above stated reasons, the informal application by the counsel for the applicants is not tenable. As a result since the applicants have failed to comply with rule 55(1) of the Rules, their application has been rendered incompetent. In the case of Ally Moshi Lubangula v Zulfa Heri, Civil Application No. 56 of 2015, this Court, Dr. Bwana J.A.(as he then was) stated as follows: "I consider non-compliance with Rule 55 to be a fatal omission to this application" The effect of an incompetent application is obviously to be stuck out. The same is therefore hereby struck out with costs. DATED at DAR ES SALAAM this day 26th of January, 2016. A.G.MWARIJA JUSTICE OF APPEAL I certify that this is a true copw of the original. .-Vv ■ \ eTf J FQISS^ I DEPUTY REGISTRAR ( C O U R T lUF APPEAL 6