IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

MISC. COMMERCIAL APPLICATION NO. 179 OF 2022

(Arising from Commercial Case No.17 of 2018)

VERSUS

EXIM BANK (TANZANIA) LIMITED............................... RESPONDENT

RULING

A.A. MBAGWA, J.

The applicant herein, by way of chamber summons, brought this application

praying for the following orders;

i) That this Honourable Court be pleased to grant an order for the

extension of time for the applicant to give a notice of intention to

appeal from the judgment of the High Court of Tanzania

(Commercial Division) in Commercial Case No. 17 of 2018 given by

B.K. Phillip J, on the 3rd day of June, 2019 and subsequent to that

give the applicant an extension of time to serve the respondent

Notice of Appeal and an applicant letter for certified copies of the

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 proceedings, judgment, decree and exhibit in Commercial Case No.

17 of 2018.

ii) That this Honorable Court be pleased to make such any other orders

as it may deem fit and just to grant

The application was supported by an affidavit sworn by Mutakyamirwa

Philemon, the applicant's learned advocate. The deponent contends that the

main ground for delay is a mistake of fact which resulted in striking out of

Civil Appeal No. 250 of 2019.

Expounding, in his affidavit, Mr. Philemon contended that the applicant was

dissatisfied with the decision of this court (B.K. Phillip J) which was delivered

on 3rd June, 2019. As such, the applicant lodged a notice of appeal along

with an application letter for certified copies of judgment, decree and

proceedings and the same were served to the respondent. However,

according to the applicant, the respondent endorsed only the notice of

appeal while leaving the application letter unendorsed. Believing that

everything was in order, the applicant proceeded to request for certificate of

delay after which he filed Civil Appeal No. 250 of 2019 in the Court Appeal.

The applicant further contended that the said Civil Appeal No. 250 of 2019

when called on for hearing, the respondent's counsel raised a preliminary

the ground that, the applicant did not serve respondent with application

letter for certified copies of judgment, decree and proceedings hence a

violation of rule 90(3) of the Court of Appeal Rules, 2009. The learned

advocate averred that, the applicant conceded to the objection as such, Civil

Appeal No. 250 of 2019 was struck out on 4th October, 2022, by the Court

of Appeal. It is against the narrated background, the applicant has brought

this application seeking for the above-mentioned reliefs. The applicant

therefore implored the court to grant the sought reliefs on the ground that

she has demonstrated sufficient cause for delay.

In rebuttal, the application was hotly contested by the respondent through

a counter affidavit duly affirmed by Gigi Maajar, the respondent's learned

counsel. Miss Gigi Maajar parts company with the applicant on the sufficiency

of the reason for delay. She adamantly stated that the letter was not served

on the respondent as contended by the applicant and this was the reason

for the applicant's counsel's concession to the preliminary objection in Civil

Appeal No. 250 of 2019. According to Gigi Maajar, failure to serve the

respondent with an application letter for certified copies of judgment, decree

and proceedings is not excusable in law because it is contrary to the

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requirement of rule 90(3) of the Tanzania Court of Appeal Rules, 2009 herein

after referred to as the Rules. In the end, the respondent prayed for

dismissal of the application with costs for being devoid of merits.

When the matter was called on for hearing on 5th December, 2022, the

applicant was represented by Mutakyamirwa Philemon, learned advocate

whilst the respondent had services of Gigi Maajar assisted by Idd Juma,

learned advocates. Both counsel prayed for and were allowed to argue the

application by way of written submissions. I am thankful to both counsel for

their insightful submissions which were timely filed in court.

It was the applicant's submission that, there is no dispute that after delivery

of judgment in Commercial Case No. 17 of 2018, the applicant timely filed a

notice of appeal and application letter for certified copies of judgment,

decree and proceedings. The counsel further submitted that the only fault

that the applicant committed was failure to ensure that the respondent

endorsed on the application letter. According to the applicant's counsel, the

delay deserves to be classified as technical delay because the said Civil

Appeal No. 250 of 2019 had been filed in time but it was struck out due to

technical error namely, failure to serve the respondent with application letter.

The applicant's counsel relied on the case of Fortunatus Masha vs

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William Shija and Another 1997 T.LR. 155 to tell the court that technical

delay is considered a sufficient cause for extension of time. Mr. Philemon

continued that, failure to serve the application letter was just a mistake of

fact and therefore excusable.

On the adversary, the respondent's counsel had different views. The counsel

submitted that the applicant failed to establish good cause for this court to

grant extension. She submitted that there are three factors to be considered

in the determination of application for extension of time namely, one,

whether the length of time has been explained away, two, whether the

applicant was diligent as opposed to negligent and three, whether there is

illegality in the decision sought to be impugned. The respondent's counsel

strongly submitted that the applicant was negligent by failing to serve the

respondent with an application letter for certified copies of judgment, decree

and proceedings. Further, the learned counsel argued that the anomaly is

inexcusable because it was a failure to adhere to the requirement of rule

90(3) of the Rules. To bolster her argument, the counsel cited the case of

Damas Assey and Flora D. Assey vs Raymond Mgonda Paula and

others, Civil Application No. 32/17 of 2018, CAT at Dar es Salaam. The

counsel continued to submit further that, there is no illegality in the decision

delay. The respondent's counsel cited the case of Johnson Izengo vs

Chacha Magoti Nshoya and 4 others, Misc. Land Application No. 428 of

2021, HC (Land Division) Dar es Salaam to stress on the applicant's duty to

account for each day of delay. Finally, the counsel submitted that the

applicant has failed to establish the factors enunciated in the above cited

case as such, the applicant has failed to show sufficient cause as required

by law.

In the end, the counsel beseeched the court to dismiss the application with

costs.

I have keenly gone through the rival submissions as well as the depositions

along with their accompanying documents filed by the parties. It is common

cause that the main reason for the applicant's delay is the striking out of Civil

Appeal No. 250 of 2019 due to the applicant's failure to serve the respondent

with an application letter for certified copies of judgment, decree and

proceedings contrary to rule 90(3) of the Rules.

The applicant contended that the failure was a mistake of fact and therefore

it is excusable while the respondent was opined that the omission is not

excusable because it resulted from the applicant's negligence.

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Thus, the pivotal issue for determination of this application is whether the

applicant has demonstrated sufficient cause, in the circumstances of the

case, to warrant extension of time.

It is now a well-established position of law that there is no hard and fast rule

as to what constitutes sufficient reasons for grant of extension of time.

Rather, sufficient causes are determined by reference to all the

circumstances of each particular case. See Regional Manager, Tanroads

Kagera vs. Ruaha Concrete Co. Ltd, Civil Application No. 96 of 2007, CAT

at Dar Es Salaam.

As such, in determining the good cause, courts have been invariably taking

into account various factors including but not limited to length of delay

involved, reasons for delay, the degree of prejudice, if any, that each oarty

is likely to suffer, the conduct of the parties and the need to balance the

interests of a party who has a decision in his favour against the interests of

a party who has a constitutionally underpinned right of appeal. See Jaliya

Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No.

392/01 of 2020, CAT at Dar es Salaam, Paradise Holiday Resort Limited

vs. Theodore N. Lyimo, Civil Application No. 435/01 of 2018, CAT at Dar

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Es Salaam and Ludger Bernard Nyoni vs. National Housing

Corporation, Civil Application No. 372/01 of 2018, CAT at Dar Es Salaam.

I have painstakingly scanned the parties' depositions against the above-

mentioned factors in particular, the applicant's promptness in filing this

application after striking out of Civil Appeal No. 250 of 2019, the applicant's

constitutional right of appeal and degree of prejudice that the applicant is

likely to suffer if this application is not granted. It is my findings that the

applicant promptly brought this application on 10th October, 2022

immediately after Civil Appeal No. 250 of 2019 was struck out by the Court

of Appeal on 4th October, 2022. In addition, I have observed that the

applicant had actually filed Civil Appeal No. 250 of 2019 within time save

that she omitted to serve the application letter to the respondent. Besides,

my holistic assessment of the matter tells me that the applicant stands to

suffer more than the respondent would if the application is not granted.

In the event, considering the factors enumerated above, I am satisfied that

the applicant has demonstrated a good cause for delay hence this application

has merits. Consequently, I allow the application with costs. I am a live to

the general principle in civil jurisprudence that, costs follow the event but for

the circumstances of this case, applicant has to pay costs because the

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respondent has incurred costs of prosecuting this application due to

applicant's counsel's fault.

The applicant is therefore given thirty (30) days from the date of this ruling

to file a notice of appeal and serve both notice of appeal and the application

letter for certified copies of judgment, decree and proceedings to the

respondent.

It is so on

A.A. Mbagwa

JUDGE

09/03/2023

Court: Rulingnhas been delivered in the presence of Mutakyamirwa

Philemon, learned advocate for the applicant and Idd Jumaa Kassi,

learned advocate for the respondent this 9th day of March, 2023.

A.A. Mbcigwa

JUDGE

09/03/2023