| dc.description | VODACOM TANZANIA LIMITED V. INNOCENT DANIEL NJAU
CIVIL APPEAL NO. 60 OF 2019 COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM.
(Appeal from the Ruling and Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Mruma, J, A) dated the 20th day of September, 2017 in Misc. Commercial Application No. 18 of 2017
CORAM: MUGASHA. J.A, LEVIRA J, A. and MWAMPASHI J, A 7th October 2022
FLY NOTES
Commercial Law-Appeal against the ruling and Order of the High Court- Whether the Applicant pleaded illegality as one of the grounds for extension of time
Commercial Law-Appeal against the ruling and Order of the High Court -Whether the trial Judge considers the illegality raised by the Appellant as sufficient cause for extension of time
BRIEF FACTS
The appellant, VODACOM TANZANIA LIMITED is challenging the decision of the High Court of Tanzania, Commercial Division (the High Court) which dismissed Miscellaneous Commercial Application No. 18 of 2017. In the said application, the applicant had applied for extension of time within which to file a notice of intention to appeal against the decision of the Resident Magistrate Court of Dar es Salaam at Kisutu (the trial Court) in Civil Case No. 101 of 2016.Before the trial Court, the respondent had sued the appellant claiming to be paid Tshs. 140,000,000/= being the monies he won in a lottery called "JAY MILLION" plus general damages. The appellant defaulted to file a Written Statement of Defence (the WSD) and thus on 26th July 2016 a default judgment was entered against her. However, the appellant did not take any step to challenge the decision of the trial Court until on 1st February 2017, which was over six months later when she unsuccessfully applied for extension of time before the High Court, the decision which is subject of the instant appeal on the following grounds;
1. That the learned Judge erred in law and facts in holding that the only reason for extension of time to file the notice of appeal was that contained in paragraph 6 of the affidavit of Olaf Mamburi. In doing so, the learned Judge failed to note other grounds contained in paragraphs 13, 14 and 15 of the same affidavit
2. That the learned Judge erred in law and facts in holding that the Appellant had failed to show sufficient grounds to warrant extension of time.
3. That the learned Judge erred in law and fact in holding that the appellant conduct exhibited gross negligence.
At the hearing of the appeal, the appellant was represented by Ms.Samah Salah, learned advocate, whereas, the respondent had the services of Mr. Abubakar Salim, also learned advocate. Ms. Salah firstly adopted the appellant's written submissions and argued the first and second grounds of appeal together and the third one separately. As regards the first and second grounds, it was her submission that section 14 (1) of the Law of Limitation Act, Cap 89 R.E. 2002, empowers the High Court to grant extension of time where there is sufficient cause to warrant extension of time. However, she submitted, the law has not defined "sufficient cause" but the same depends on circumstances of each case.
She went on submitting that, the reason for the appellant's delay to file the notice of appeal on time was that she was not notified of the default judgment until on 20th January, 2017 upon being served with summons to show cause why execution should not proceed as stated under paragraphs 6, 7, 11 and 12 of the affidavit of Olaf Mumburi supporting chamber summons presented before the High Court as found on page 22 of the record of appeal. In addition, she referred to paragraphs 13, 14 and 15 of the said affidavit where the deponent raised illegality as a sufficient cause for granting extension of time. It was her argument that the decision of the trial Court is tainted with illegalities as, first, the learned trial magistrate ha d no pecuniary jurisdiction to determine the matter; second, he pronounced the judgment in the respondent's favour without requiring him to prove his claim ex parte and third, he awarded interest on the decretal amount over and above that which is permitted by the law.
The respondent resisted the Appeal and argued that the first and second grounds of appeal that, issues pertaining to default judgment, illegality and pecuniary jurisdiction are grounds of appeal not for extension of time and that is why the learned judge did not consider them. He also added that since the Appellant was properly duly served with a copy of plaint it was the fact that the appellant was accorded the right to be heard but denied the same. To him illegality constitutes a sufficient ground for extension of time only when the right to be heard is denied.
Appeal was allowed and the High Court decision was set aside
ISSUES
1. Whether the Applicant pleaded illegality as one of the grounds for extension of time. If the first issue is answered informative the second issue is;
2. Whether the trial Judge considers the illegality raised by the Appellant as sufficient cause for extension of time
HELD
1. Equally in the circumstances of the present case where the appellant alleges that the trial court had no jurisdiction to determine the matter placed before it. In our view, such illegality could not be left unnoticed because the ultimate decision of the trial court affected the rights of the parties.
2. We entertain no doubt that lack of jurisdiction is a point of illegality worth consideration in an application for extension of time. Therefore, the appellant demonstrated sufficient cause warranting the grant of extension of time to file notice of appeal
3. In the circumstances of the instant application, we find it appropriate to interfere with the decision of the High Court and it is hereby set aside.
RATIO DECIDEND
We are of the considered opinion that the learned Judge ought to have exercised his discretion judiciously to consider even the ground of illegality which was also pleaded by the appellant because "sufficient reason" does not only entail reasons of delay, but also sound reasons for extending time.
STATUTORY PROVISIONS REFEERED TO
Section 14 (1) of the Law of Limitation Act, Cap 89 R.E. 2002
CASE LAWS REFEERED TO
1. VIP Engineering & marketing Limited and 2 others v. Citibank Tanzania Limited, Consolidated Civil References No. 6, 7 and 8 of 2006 (unreported)
2. Principal Secretary, Ministry of Defence, National Service v. Derran Valiambhia [1992] TLR 185.
3. TANESCO v. Mufungo Leonard Majura & 15 Others, Civil Application No. 94 of 2016 (unreported)
4. Ntiga Gwisu v. Republic, Criminal Appeal 428 of 2015 (unreported).
Ms. Samah Salah, learned advocate for the Appellant
Mr. Abubakar Salim learned counsel for the respondent | en_US |
