| dc.description | IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
CIVIL APPEAL No. 266 OF 2019
METHUSELA ENOKA..................................................................................APPELLANT
VERSUS
NATIONAL MICROFINANCE BANK LTD....................................….... RESPONDENT
(Appeal arising from the decision of the High Court of Tanzania, a.t Mwanza)
Appeals - Whether the appellants appeal was time barred.
Civil procedure and practice - Exclusion of limitation of time to lodge an appeal - whether the time for lodging an application to be supplied with the copy records of appeal was excluded.
This appeal arisesfrom the judgment of the High Courtat Mwanza (Maige J. as he then was) in which he dismissed the appellant’s appealagainst the National Microfinance Bank Ltd (NMB), the respondent, on 29.02.2016 for being time barred. Feeling that justice was not rendered, and in the further quest for justice, the appellant now appeals to this Court.Before trial, the trial court framed a number of issues for determination and in particularthe central issues were,whether the appellant’s lost his money at the tuneof TZS. 3,783,000.00 and whether the loss of the said money was occasioned due to the defendant's negligence.The trial court ruled out that the appellant did not prove his case to the hilt and therefore dismissed the suit with costs.The appellant knocked the doors of the High Court seeking to challenge the decision of the trial court. On 17.02.2016the matter was fixed forhearing, but before hearing of the appeal could commence in earnest, the learned High Court Judge Invited the counsel for the parties to address him on the propriety of the appeal considering that, the judgment of the trial court was pronounced on 21.04.2015 but the appeal was lodged on 22.09.2015.
The counsel dutifully complied whereby, Mr. Kisigiro, learned counsel for the appellant, addressed the court to the effect that, the impugned judgment was pronounced on 21.04.2015 and on the same day the counsel for the appellant applied to be supplied with a copy of judgment and decree. On 30.04.2015 the appellant lodged a notice ofappeal and since then, the appellant was making close follow up of the said documents but in vain. Mr. Kisigiro went on to state that, it was on 11.09.2015 when the appellant was supplied with certified copies of judgment and decree videexchequer receipt No.6847305 dated 11.09.2015. Mr. Kisigiro therefore, prayed that, the court should hold that the appeal was within time.
Held:
(i) Appeal is time barred but the appellantis entitled to exclusion under section 19(2) (3) of the Act without necessarily attaching any document to the memorandum of appeal.
(ii) The exclusion is automatic as long as there is a proof on the records of the dates of the critical events for the reckoning of prescribed limitations period.
(iii) Section 19(2)(3) of the Act allows automatic exclusion of the period of time requisite for obtaining a copy of decree or judgement appealed from the computation of the prescribed limitation period.
Statutory Provision
Court of Appeal Rules
The Law of Limitation Act
CasesRefered
African Marble Co. Ltd v. Tanzania Saruji Corporation [1999] TLR 306
Gregory Raphael v. PastoryRwehabula [2005] TLR 99.
Mohamed Salimini v. JumanneOmaryMapesa, Civil Appeal No. 345 of 2018
Alex Senkoro and Others v. EliambuyaLyimo, Civil Appeal No. 16 of 2017 | en_US |
