YEMEN ENTERPRISES VS EXIM BANK T LTD MISC

Page 1 o f 8 IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION DARES SALAAM MISC COMMERCIAL CASE NO 142 OF 2015 (Arising from Original Commercial Case 195 of 2009) BETWEEN YEMEN ENTERPRISES AND 2 OTHERS------------------------------------------------------------ APPLICANTS VERSUS EXIM BANK TANZANIA LIMITED-------------------------RESPONDENT RULING Date of the Last Order. 7/9/2015 Date of the Ruling: 13/10/2015 SONGORO, J On the 10th June, 2015, Yemen Enterprises and other instituted the instant application, applying for enlargement of time, to file a Notice of Appeal, to appeal to the Court of Appeal. The Applicants application was made under Section 11(1) of the Appellate Jurisdiction Act Caol41 [R.E 2002], and is supported by an affidavit affirmed by Agil Islam the Applicant. In the application, Applicants insisted that, they want to appeal to the Court of Appeal, and they are applying for an extension of time. Page 2 of 8 Respondent in the application is Exim Bank Tanzania Limited who also has opposed the application by filing a counter affidavit sworn by Sandeep Kumar Sinha who is the Principal Officer of the Respondent Bank. Thus on the 7/9/2015 when the application was called for hearing, Mr. Ukongwa, Learned Advocate appeared for Applicant, and Respondent bank was represented by Ms. Jackline Mwingwa who was holding a brief of Mr Mnyele, Learned Advocate for 2nd Respondent. Then Mr. Ukongwa, Learned Advocate for the Applicant requested the court to allow the parties to pursue the application by a way of written submission a prayer which was supported by Ms. Jackline Mwingwa. So both parties were allowed to file Written Submission by the court. But for reasons which are unknown to this court Applicants up to the moment I am compiling this Ruling, they did not file any submissions to support the application. Like wise, the Respondent also did not file any submissions Due to none filing of submissions from either side, the court decided to entertain and determine the Application on the basis of the Affidavit of the Applicant in support of the Application and counter affidavit of the Respondent opposing the Application which were filed to this court. Page 3 of 8 The Applicants in his affidavit affirmed by Agil Islam in support of the application informed the court that, Applicants were parties in Commercial Case No 105 of 2009 and the Judgment was delivered against them while they were absent. Applicants then told the court that, they checked the court record, and find a copy of a decree bears a date of 27/3/2013, and believed it, as a date which the Judgment was delivered. Having being satisfied that, the Judgment is proper; Applicants said they applied for a copy of the Decree, and Judgment and then applied for record of appeal. Applicants then stated that, when they were intending to process their appeal, they discovered that, the date of Judgment was not 27/3/ 2013, instead they found it was on the 21/3/2013. So they failed to institute an appeal and requested for the supply of the Judgment and Decree which bears the corrects dates To support his arguments, that, they were issued with Judgment and Decree which bears different date, the Applicant annexed to the Application photocopies of the Judgment and Decree which were marked as Annexure "A", "B ", and "C". Further, Mr. Ukongwa submitted that, since they were issued with the defective Judgement and Decree it was difficult for Applicants to Page 4 o f 8 lodge a proper appeal before the court of appeal, and Applicants may not be blamed for being served with defective Judgment and Decree. It was the view of the Applicants in their affidavit that, since the error was detected after the requisite time of filing an appeal has elapsed, then it will be fair and just if the court may exercise its discretion and enlarge the time of filing a notice of appeal because the delay was not caused by applicant's negligence. For the above stated reasons they prayed that, the application be granted with costs. In response, to the Applicant application, Respondent relying on the counter- affidavit of Sandeep Kumar Sinha, he stated that, there was no genuine reasons as to why the Applicants did not issue a proper notice of appeal in advanced. He also countered the Applicants' application by saying that, there are no genuine reasons to warrant the court to extend the time of issuing a notice of appeal to the Court of Appeal. On Applicants' assertion that, they were served with Judgment which bears a different date than the date which the Judgment was delivered, Respondent stated that, the confusion on the date of Judgment and Decree, alone is not sufficient cause for an extension of time. Finally, the respondent stated that, the applicant has not explained sufficient reasons to warrant the court to exercise its Page 5 o f 8 discretion to grant an extension of time. He prayed for dismissal of the application for lack of merit. The Court has carefully considered the Applicants statements in the affidavit is support of the application, Respondents' counter affidavit, find in essence, the Applicants are applying for a court order to extend the time of filing a notice of appeal. Furthermore, the court find as Applicant stated that, under Section 11(1) of the Appellate Jurisdiction Act Cap 141, [RE, 2002] the court has a discretion to extend the time of filing a notice of appeal, not withstanding that, the time for issuing a notice of appeal has expired. Indeed the section provides as follows; Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice o f intention to appeal from a judgment o f the High Court or o f the subordinate court concerned, for making an application for leave to appeal or for a certificate that, the case is a fit case for appeal, notwithstanding that, the time for giving the notice or making the application has already expired. Guided by Section 11(1) of Appellate Jurisdiction Act, I revisited the application and find the Applicants have annexed photocopies of the Decree which bears different dates. The first Court Decree is dated 27 /3/2013, and it was extracted on the 27/3/2013 and it was issued on the 9/1/2015. The second Court Page 6 of 8 Decree shows was issued on the 21/2/2013, Extracted on the 21st February, 2013, and issued on the 2/3/2015. Going by both Photocopies of the two Decree's it appears that, they bear different dates and were issued on 2/3/2015. The court has duly considered the reasons for the delay and finds the applicant key complaint is that, he was issued with the court decree and judgment which was defective. But honestly, the court find that, even if the Applicant was issued with a Judgment which bears wrong dates and was compelled to seek another correct Judgment and Decree under normal circumstances and diligent he could not have take the time from March, 2013 to June, 2015 to find a correct copy. One may wonder if Applicants were interested in filing appeal why they took about 2 years to file the application for an extension. Also, in the two cited cases, Applicants did not explain how they spent their time. It seems to me if it is true they had an interest of pursuing the appeal prudently they court utilised shorter period to file an application for extension of time rather than using more than 2 years just to file an application for extension of time. The court was expecting the Applicant to state in his affidavit sufficient reasons as Page 7 o f 8 why they took more than 2 years to file an application for extension of time. Thus the court find since the decision sought to be challenged was made on the in March 2013 , and the instant application for extension of time was filed on the 10th June, 2015 then there is inordinate delay of more than 2 years, which the Applicants have not assigned in their affidavit any reason for inordinate delay which may enable and convince the court to exercise it discretion vested under Section 11 of the Appellate Jurisdiction Act, Cap 141 [R,E 2002] and grant an extension of time to issue notice of appeal, and the appeal. In the absence of reasonable cause for the long delay, the court find, it has no convincing reason which it may rely upon in granting the application. For the above stated reasons, I decline to grant the application, and dismiss it with costs. Each party to bears his own costs. The right of appeal is fully explained to the parties. Dated at Dar es Salaam on the 13th October, 2015 H.T.SONGORO JUDGE Delivered at Dar es Salaam on the 13th October, 2015 & H.T.SONGORO l& JUDGE * Ruling was delivered in the presence of Ukongwa Advocate for the Applicant and absence of Respondent.