| dc.description | BRAZAFRIC ENTERPRISES LIMITED V. KADERES PEASANTS DEVELOPMENT (PLC)
CIVIL APPLICATION NO. 421/08 OF 2021 COURT OF APPEAL OF TANZANIA
AT PAR ES SALAAM.
(Application for Extension of time to file an Appeal out of time from the Ruling of the High Court of Tanzania, Commercial Division at Mwanza (Phillip, J.1) dated the 15th day of November, 2018 in Misc. Commercial Application No. 323 of 2017)
LEVIRA, J, A 13th October 2022
FLY NOTES
CONTRACT LAWS-Application –application for extension of time to file appeal out of time- whether the applicant has demonstrated good cause to warrant the grant of extension of time to file an appeal out of time.
Application –application for extension of time to file appeal out of time- whether the impugned decision is tainted with illegalities.
BRIEF FACTS
The Applicant is seeking extension of time to file an appeal out of time against the decision of the High Court of Tanzania, Commercial Division at Mwanza (the High Court) in Miscellaneous Commercial Application No. 323 of 2017 dated 15th November, 2018. The application was made by way of a notice of motion supported by an affidavit deponed to by the applicant's counsel. The respondent opposed the Application by filing counter affidavit. A brief background of this matter was to the effect that, the parties to this application had entered in a contract where the respondent had to supply the applicant with a dry coffee processing mill at a cost of USD 566,376.00. The respondent effected a payment immediately after execution of the contract, but the applicant breached the terms of the contract as she failed to supply the said mill. As a result, the respondent instituted Commercial Case No. 3 of 2014 against the applicant in the High Court and obtained a default judgment following the applicant's failure to file Written Statement of Defence (the WSD). The applicant's efforts to set aside the default judgment proved futile. She tried through a number of attempts to lodge a notice of appeal with a view to challenge the decisions of the High Court with no avail. Tirelessly, the applicant unsuccessfully attempted by way of a second bite, to apply for extension of time to lodge notice of appeal as her application was found incompetent before the Court. Luckily, when she went back to the High Court on 3rd July, 2020, she obtained leave of 14 days to file a notice of appeal to the Court which she complied with. However, she was late to file the intended appeal, hence the instant application.
In the present application, the applicant indicated that she intends to challenge the decision of the High Court refusing to re-extend time for her to lodge notice of appeal having been previously sought and 2 granted 14 days by the same court, but could not utilize those days accordingly. The grounds under which this application is brought are as follows:
1. That the applicant lodged a Notice of Appeal on l3 h July, 2020 pursuant to the order of the High Court for extension of time and subsequent thereafter the applicant applied for leave to appeal which was granted on 2&h July, 2021 but the time to file the appeal to the Court of Appeal has already expired.
2. That the Ruling and Drawn Order of the High Court is tainted with illegalities in that the Honourable High Court Judge has refused to entertain jurisdiction vested on the High Court.
3. That further, the decision of the High Court is tainted with illegalities as the applicant was denied the right to be heard. 4. That having opted to apply for extension of time to lodge a Notice of Appeal to the Court of Appeal as a second bite against the Ruling of Hon. Phillip, J; the applicant did not apply for the copies of proceedings to qualify for a certificate of delay."
At the hearing of the application, the applicant was represented by Mr. Edward Peter Chuwa and Ms. Anna Lugendo, both learned advocates, whereas, the respondent had the services of Mr. Jamhuri Johnson, also learned advocate. Mr. Chuwa adopted the contents of the supporting affidavit and the applicant's written submissions at the commencement of the hearing of the application. Expounding the grounds advanced by the applicant herein, while making reference to paragraphs 14 and 15 of the supporting affidavit, he submitted that the impugned decision of the High Court is tainted with illegalities in two aspects, first the denial of the High Court Judge to enlarge time within which the applicant could file a notice of appeal on account that she had no jurisdiction as the time had already been enlarged by another Judge of the same court. According to Mr. Chuwa, that decision was tainted with illegalities because in the first place, it was incorrect for the learned Judge to hold that she had no jurisdiction while that was not the case. Second, he claimed that the applicant was denied the right to be heard as the learned Judge entertained an informal point of preliminary objection raised by the respondent regarding the High Court's power under section 93 of the Civil Procedure Code, Cap 33 R.E. 2019 and section 11 of the Appellate Jurisdiction Act, Cap 141 R.E. 2019.
It was his argument that although the counsel for the applicant responded to the raised point of objection, he was not accorded opportunity to prepare and make a meaningful response which amounted to denial of a right to be heard
Mr. Johnson counsel for the respondent adopted the affidavit in reply and proceeded to submit that in order for an application for extension of time to 5 succeed the Court has to consider the length of delay, reasons of delay, the degree of prejudice to the other party and the chances of success, if the application is granted as per the decision of the Court in Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No.8 of 2016 (unreported). As far as the length of delay is concerned, Mr. Johnson argued that what has been submitted by Mr. Chuwa was just a narration of sequence of events of what had happened from the date of the impugned decision to the date of filing the current application. He faulted the applicant for failure to take prompt action after the decision of the Court of 9th October 2019 on second bite application for extension of time. According to him, the current application came as an afterthought and failure by the applicant to file an appeal within time was occasioned by negligence; and thus, it cannot be considered as a good cause for extending time. he prayed for the application to be dismissed with cost
Application granted
ISSUES
1. Whether the applicant has demonstrated good cause to warrant the grant of extension of time to file an appeal out of time.
2. Whether the impugned decision is tainted with illegalities.
HELD
1. I find that narration of sequence of events alone does not constitute good cause for extension of time, as correctly, in my view, stated by the counsel for the respondent
2. In the light of the above decision, I find that the ground of illegality, raised by the applicant, constitutes good cause for extension of time. Accordingly, I grant the application and order the applicant to file the intended appeal to the Court within thirty (30) days from the date of delivery of this ruling
STATUTORY PROVISIONS REFEERED TO
1. Rule 10 of the Court of Appeal Rules
2. Section 93 of the Civil Procedure Code, Cap 33 R.E. 2019
3. Section 11 of the Appellate Jurisdiction Act, Cap 141 R.E. 2019.
CASE LAW REFEERED TO
1. Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251
2. Mary Mchome Mbwambo and Another v. Mbeya Cement Company Ltd, Civil Application No. 271 / 01 of 2016 (un reported)
3. Zuberi Nassor Moh'd v. 6 Mkurugenzi Mkuu Shirika la Bandari Zanzibar at Zanzibar, Civil Application No. 93 / 15 of 2018 (unreported).
4. Hirji Abdallah Kapikulila v. NCBA Bank Tanzania Limited, Civil Application No.489/16 of 2021 (unreported).
5. Principal Secretary, Ministry of Defence, National Services v. Devram Vallambhia [1992] T.L.R. 185.
Mr. Edward Peter Chuwa and Ms. Anna Lugendo learned counsel for the applicant
Mr. Jamhuri Johnson learned counsel for the respondent | en_US |
