| dc.description | JUBILEE INSURANCE COMPANY (T) LIMITED VS. MOHAMED SAMEER KHAN
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM
CIVIL APPLICATION NO. 439/01 OF 2020.
(Application for extension of time within which to serve the Respondent with the Notice of Appeal arising from the decision of the High Court of Tanzania, at Dar es Salaam) dated the 12th day of July, 2019 Mlvambina. J.) in Civil Case No. 73 of 2012
Civil Law and Practice- Application for extension of time within which to serve the respondent with the notice of appeal- What the Court is required to consider before granting extension of time.
Civil Law and Practice- Application for extension of time- Whether negligence of an advocate or his ignorance of the procedure constitute a good ground for extension of time.
Civil Law and Practice- Application for extension of time- illegality as a ground for extension of time -the said illegality has to be apparent on the face of record.
Civil Law and Practice- Application for extension of time- Whether every error committed by a court amount to an illegality
Civil Law and Practice- Application for extension of time – whether the overwhelming chances of success can be one of the grounds that constitutes a sufficient cause
The applicant herein, has lodged this application by way of a notice of motion under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), for extension of time within which to serve the respondent with the notice of appeal arising from the decision of the High Court of Tanzania at Dar es Salaam in Civil Case No. 73 of 2012. Briefly, the background of the matter goes as follows: The respondent herein, sued the applicant before the High Court of Tanzania at Dar es Salaam in Civil Case No. 73 of 2012. The suit was based on insurance contract and the respondent's claims against the respondent included payment of USD 130,000.00, being the value of his insured motor vehicle, which was involved in an accident and which was allegedly totally damaged. Having heard the evidence from both sides, the High Court (Mlyambina, J), delivered its judgment in favour of the respondent on 12.07.2019 and made the following orders: 1. The defendant to pay the plaintiff USD 130,300 being the indemnity value o f the insured motor vehicle. 2. The defendant to pay the plaintiff 12% per month from the date o f filing o f the suit to the date o f judgment 3. The defendant to pay the plaintiff Court interest rate o f 12% from the date o f judgment to the date o f settlement o f the decree in full. 4. The defendant to pay the plaintiff general damages at the tune o f TZS fourteen million. 5. The defendant to pay the plaintiff costs o f the case. Dissatisfied with the High Court decision and intending to appeal against it, the applicant duly lodged a notice of appeal on 07.08.2019, in terms of rule 83 (1) and (2) of the Rules. Having lodged the notice of appeal, the applicant did, however, not serve a copy of the said notice on the respondent within 14 days as required by rule 84 (1) of the Rules, hence the instant application for extension of time within which to do so. According to the notice of motion and the supporting affidavit, the application is premised on the following grounds: 1. That there exist errors apparent on the face of record which have made the decision o f the High Court illegal ( the interest rate awarded ) . 2. That the applicant spent a considerable amount o f time to look for an advocate after the initial advocate withdraw himself from the case. 3. That the applicant experienced a technical delay. 4. That the intended appeal has overwhelming chances o f success.
Held;
No good reasons have been advanced by the applicant to justify the inordinate delay of more than 13 months from 07.08.2019 when the notice of appeal was lodged to 08.10. 2020 when the instant application was filed.
it is therefore clear, not only that the applicant has totally failed to account for the delay but also that both the applicant and her advocates exhibited negligence and inaction.
It should also be emphasized that the negligence of an advocate or his ignorance of the procedure, is not an excuse and does not constitute a sufficient cause for extension of time.
I am not persuaded that there is any illegality that is apparent on the face of record and neither can it be discerned from those two orders that can be said to constitute a sufficient cause for the Court to extend time within which to serve a copy of the notice of appeal to the respondent.
that even if there is any unreasonableness or error on part of the High Court in awarding interest at those rates, the same does not constitute a sufficient cause for extension of time. It should be insisted that not every error committed by a court amount to an illegality.
Under the circumstances of this matter, the overwhelming chances of success cannot be one of the grounds that constitutes a sufficient cause under rule 10 of the Rules
The application is therefore accordingly dismissed with costs. It is so ordered.
Cases Referred;
Dar es Salaam City Council v. Jayantilal P. Rajan, Civil Application No. 27 of 1987 ( unreported),
Tanga Cement Co. v. Jumanne Masangwa and Another, Civil Application No. 6 of 2001( unreported).
Tanzania Revenue Authority v. Tango Transport Co. Ltd, Consolidated Civil Applications Nos. 4 of 2009 and 9 of 2008 ( unreported).
Bertha Bwire v. Alex Maganga, Civil Application No. 7 of 2016, ( unreported).
Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 ( unreported)
Bariki Israel v. Republic, Criminal Application No. 4 of 2011 ( unreported)
In Exim Bank (Tz) Ltd v. Jacquilene A. Kweka, Civil Application No. 348 of 2020 (unreported)
Omar Ibrahim v. Ndege Commercial Services Ltd, Civil Application No.83 of 2020 (unreported) Wambura N. J. Waryuba v. The Principal Secretary Ministry of Finance & Another, Civil Application No. 320 of 2020 (unreported)
Statutes Referred;
Rule 10 of the Court of Appeal Rules
The applicant was represented by Mr. Audax Kahendaguza Vedasto, learned advocate, whilst Messrs. Taher Muccadam and Msengezi Emmanuel, both learned advocates, appeared for the respondent | en_US |
