Laurian J. R. Rwebembera v. Nendiwe Investment Limited, Civ no 62 B of 2008

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL  APPLICATION NO. 62“B” OF 2008

LAURIAN J. R. RWEBEMBERA ………………….…………..……..... APPLICANT

VERSUS

NENDIWE INVESTMENT LIMITED ………………………………..RESPONDENT

(Application for Extension of Time to lodge Notice of Appeal from the Decision of the High Court of Tanzania, Commercial Division,

 at Dar es Salaam)

(Bwana, J.)

dated the 14^th day of February, 2003

in

Commercial Case No. 39 of 2002

-------------

R U L I N G

2 December, 2008 & 29 April, 2009

NSEKELA, J.A.:

        The applicant, one Laurian J. R. Rwebembera, has lodged this notice of motion in terms of Rules 8 and 45 (1) of the Court of Appeal Rules, seeking for an order that –

“The Court may be pleased to extend time within which the applicant may be allowed to lodge Notice of Appeal out of time so as to appeal against the decision of Commercial Court in Commercial Case No. 39/2002 between Nendiwe Investment Ltd vs Laurian Rwebembera dated 14.02.2003.”

        The applicant was the third defendant in Commercial Case No. 39 of 2002 before the High Court, Commercial Division.  Apparently the first and second defendants therein, settled their dispute with the plaintiff and so the suit proceeded on against the applicant alone.  Judgment was entered against him on the 14.2.2003.  Dissatisfied with the said decision, the applicant lodged a notice of appeal on the 18.2.2003.  However on the 26.9.2006, this Court struck out the appeal as incompetent.  This meant that there was no longer any notice of appeal against the decision in Commercial Case No. 39 of 2002.  Realizing this reality, the applicant filed an application before the High Court for an extension of time to file notice of appeal against the decision in Commercial Case No. 39 of 2002.  The application was filed on the 18.10.2007.  The High Court, Commercial Division (Werema, J.) dismissed the application on the 22.4.2008.  The applicant was dissatisfied with this decision and so filed on the 7.5.2008, a fresh application under Rules 8 and 45 (1) of the Court of Appeal Rules.

        The notice of motion is supported by an affidavit sworn by the applicant himself.  It narrates the background information from the time the suit was decided by Dr. Bwana, J. (as he then was) to the time the suit was struck out by this Court as incompetent.  (See paragraphs 2 to 10).  In terms of section 11 of the Appellate Jurisdiction Act read together with Rule 8 of the Court of Appeal Rules, this Court and the High Court have concurrent jurisdiction to extend time of giving notice of intention to appeal.  Such an application however has to commence in the High Court pursuant to Rule 44 of the Court of Appeal Rules, as correctly done by the applicant.

        In the affidavit in support of the notice of motion, the applicant heaped blame on Mr. Kariwa, learned advocate, for the delay since the learned advocate did not communicate the outcome of his appeal in this Court to the applicant.  Mr. Magaffu learned advocate for the respondent, strongly resisted the application.  He submitted that the application had no merit at all.  The affidavit in support lacked details which would furnish “sufficient reasons” in order to move the Court to exercise its discretion to grant the extension of time sought.  He added that the reason given may suffice to take civil action against Mr. Kariwa but that did not amount to sufficient reason envisaged in Rule 8.

        It will be recalled that the original notice of appeal was lodged in time.  However, owing to other procedural reasons this Court struck out the appeal as incompetent, and so with it went the notice of appeal.  The appeal was struck out on the 26.9.2006 by this Court.  The applicant made an application to the High Court on the 18.10.2007, slightly over a year reckoned from the 26.9.2006.  In the case of Fortunatus Masha v William Shija and another [1997] TLR 154, a single Judge of this Court (Mfalila, J.A.) had this to say at page 155 –

“…..  I am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted.  In the circumstances, the negligence if any refers to the filing of an incompetent appeal not the delay in filing it.  The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal.”

        This Court has jurisdiction to entertain an application for extension of time to enable an appeal to be re-instituted which was struck out, as was the case here.  However, before this jurisdiction can be exercised, the Court must be satisfied that the applicant has advanced “sufficient reason” under Rule 8 of the Court of Appeal Rules.  The appeal was struck out by this Court on the 26.9.2006.  I have gleaned this information from the ruling of the High Court (Werema, J.) delivered on the 23.4.2008.  With respect, I agree with Mr. Magaffu, learned advocate, that the applicant in his affidavit has not disclosed to the Court any reasons, let alone sufficient reasons to explain away over twelve months delay in seeking extension of time.  I am satisfied that the applicant is responsible for this unreasonable delay after the original appeal was struck out.

        In the event, I do hereby dismiss the application with costs.  It is so ordered

        DATED at DAR ES SALAAM this 23^rd day of April, 2009.

H. R. NSEKELA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(J. S. MGETTA)

DEPUTY REGISTRAR

View other posts for your benefit...