NATIONAL BANK OF COMMERCE v STAR TRANSPORT CO LTD 1997 TLR 293 (CA)

 

NATIONAL BANK OF COMMERCE v STAR TRANSPORT CO LTD 1997 TLR 293 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA

CIVIL APPLICATION 66 OF 1997 B

6 November 1997

Flynote

Civil Practice and Procedure - Appeals - Application for extension of time to seek

leave to appeal - Concurrent jurisdiction of High Court and Court of Appeal - Where

application first made to and refused by High Court. C

-Headnote

The applicant applied for an extension of the time within which to appeal to the

Court of Appeal and for leave to appeal to the Court. The proceedings arose from the

granting of an ex-parte judgment D against the applicant and the subsequent

dismissal of the applicants' application for extension of time to file an application to

set aside the ex-parte judgment. The dismissal was based on the fact that the delay

had been caused by applicant's gross negligence. A subsequent application for stay E

of execution was struck out because no appeal had been filed and an application to the

High Court, for extension of time to seek leave to appeal to the Court of Appeal and

for leave to appeal against the original ruling was dismissed, the High Court refusing

an extension of time to file application to set aside the ex-parte judgment.

Held:

(i) The Court of Appeal and the High Court had concurrent jurisdiction in

the present matter. F The applicant had rightly made application to the High Court

before coming to the Court of Appeal as under Rule 44, where the Courts had

concurrent jurisdiction, first application should be made to the High Court;

(ii) In terms of Rule 43(b) however, where the application had first been

made to and refused G by the High Court, a further application had to be made

within 14 days of such refusal. The present application had been made long after the

period of 14 days and no leave had been obtained or sought for filing the notice out of

time. The application was accordingly time-barred.

Case Information

Application dismissed. H

Maira for the applicant.

Marando for the respondent.

[zJDz]Judgment

Kisanga JA: I

This is an application for the extension of time to seek leave to

1997 TLR p294

KISANGA JA

A appeal to this Court and for leave to appeal to this Court. The applicant bank is

represented by Mr Maira, learned advocate, while the respondent Company is

represented by Mr M Marando, learned advocate.

The case has had a chequered history in the Courts where the handling of it by

counsel for the B applicant bank leaves a lot to be desired, to say the least. For the

purpose of this application the following salient features may be set out by way of the

background to the case. On 27 June 1995 an ex-parte judgment was entered by the

High Court in favour of the respondent following a default of C appearance by

counsel for the applicant. On 7 November 1995 the High Court dismissed the

applicant's application for extension of time to file an application to set aside its exparte

judgment because the delay in filing such application had been due to gross

negligence on the part of counsel which, however, could not constitute ground for

granting the extension sought. On 11 March 1996 a D single judge of this Court

struck out an incompetent application by the applicant's counsel for a stay of

execution of the ex-parte decree because no notice of appeal had been filed in relation

to that decree or judgment. And on 20 August 1997 the High Court dismissed the

applicant's application for extension of time to seek leave to appeal to this Court, and

for leave to appeal to this E Court against the High Court Ruling of 7 November

1995, refusing extension of time to file application to set aside the ex-parte judgment,

on the ground that no reasons or grounds were advanced in support of that

application. There were, in addition, other applications too, which, F however, do

not have a direct bearing on the present application. Following the refusal of the last

mentioned application therefore, the applicant has now come to this Court by way of

a further application under Rules 8 and 43(b) of the Court of Appeal Rules.

G Admittedly, this is a matter where both this Court and the High Court have

concurrent jurisdiction. Under s 11(1) of the Appellate Jurisdiction Act the High

Court has power to extend the time for making an application for leave to appeal to

this Court, and this Court has such power under Rule 8 of the Court of Appeal Rules.

The applicant rightly made this application to the High Court before H coming to

this Court, because under Rule 44 where the High Court and this Court have

concurrent jurisdiction, the application shall, in the first instance, be made to the

High Court. The further application to this Court, however, is subject to the time

limitation prescribed by para (b) of Rule 43 which says:

I `(b)Where an appeal lies with the leave of the Court, application for

1997 TLR p295

leave shall be made in the manner prescribed in rules 46 and 47 within

fourteen days of the decision against A which it is desired to appeal or, where

application for leave to appeal has been made to the High Court and refused, within

fourteen days of that refusal.'

This means that where, as in the present case, the application for leave was first made

to and B refused by the High Court, then a further application to this Court shall be

made within fourteen days of such refusal by the High Court.

As stated earlier, the refusal by the High Court is dated 20 August 1997 and,

additionally, it was certified by the District Registrar on 2 September 1997. However,

the applicant's notice of motion C was lodged in Court on 8 October 1997. This is

long after the expiration of fourteen days of the refusal by the High Court to grant

leave, and no leave was obtained or sought for filing this motion out of the prescribed

time.

The application is, therefore, time barred and is accordingly dismissed with costs. D

1997 TLR p295

F