The application was supported by an Affidavit deponed to by one Mr. Macfarlane Msechu,
an officer of the applicant company. He stated in his affidavit upon the completion of the trial in Civil Case No. 400 of 1998, the
learned trial Judge reserved judgement. Meanwhile the learned trial Judge was transferred to the Commercial Division of the High
Court. Because the applicant got no Notice of the delivery of the Judgement, he made several inquiries at the High Court Registry
of the date of the delivery of the reserved judgement in vain. It was not until the 3.3.2004 that a court clerk told him that the
judgement had been delivered in his absence on the 16.9.2004. The said 16.9.2003, as the respondentfs counsel observed, was
not the date of the delivery of the judgement, from the record, the judgement was delivered on the 16.6.2003.
The respondentfs counsel, Mr. Mwandambo, deponed at paragraph 8 of the affidavit
in reply, that the judgement in Civil Case No. 400 of 1998 was delivered on the 16.6.2003 in his presence. He said that he went to
inquire at the Registry and was thereupon served with the notice of the delivery of the judgement by the Registrar on the 16.6.2003
so he appeared for the same.
As the judgement was delivered on the 16.6.2003 and the period of appeal had expired,
the applicant filed Civil Application No. 176 of 2004 seeking extension of time to file a notice of appeal to this Court. The said
application was struck out by the Court because the gjurat of the Affidavit in support of the material application was undated
and thence defective. Because the first application was struck out, the applicant brought this second application seeking the prayers
stated herein before. Hence the present application.
The gist of the application, Dr. Lamwai submitted, is that the applicant was not
served with the Notice of the Delivery of the Judgement so he could not have been aware of the said date. When the applicant knew
the date, he lost some time instructing his advocate who was out of Dar-es-Salaam at that time so the application for extension of
time could not be lodged immediately thereafter.
Mr. Mwandambo, learned advocate for the respondent, criticized the applicant for
not pursuing the intended appeal diligently. He contended that the applicant ought to have filed a supplementary affidavit to prove
that he had been making enquiries on the delivery of the judgement in vain at the High Court Registry. Failure to do so entitles
the Court to disbelieve the contents of the affidavit of the officer of the applicant, counsel for the respondent argued.
Counsel for the respondent cited the case of John Chuwa versus Anthony Ciza (1992) TLR 233 wherein the Court held that matters deponed to an affidavit on information should be corroborated by a supplementary
affidavit. He further cited the case of Gibb Eastern Africa Ltd. versus Syscon Builders Ltd. and two Others Civil Application No. 5 of 2005 Court of Appeal of Tanzania (unreported) in which the Court held that facts deponed upon information
from a third party should be supported by a supplementary affidavit from the said third party, to be of value.
Counsel for applicant asserted that the applicantfs affidavit was deponed upon
facts Mr. Msechu personally knew, not upon information from third parties, so his affidavit in support of the application should
be accorded the necessary weight. The applicantfs counsel found support in the case of Ratman versus Cumara Samy (1965) 1 WLR 8 at Page 12 the Privy Council, which is referred to at Pages 10 and 11 of the typed judgement of Gibbfs case cited supra. The Privy Council stated at Page 12 of the judgement:
The rules of court must be obeyed, and in order to justify a court in extending the time during which some step in procedure requires
to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach
would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table
for the conduct of litigation.
In the present case, there is no proof that the Notice of the Delivery of the Judgement
on the 16.6.2003 was served on the applicant. That he did make enquiries on the delivery of the reserved judgement is supported by
the fact that he was ultimately given a wrong date of the delivery of judgement which was said to be the 16.9.2003 while the said
judgement had been delivered by the Registrar on the 16.6.2003, three months earlier. It was the duty of the Court to notify the
parties of the date of the delivery of the judgement. Failure on the part of the Court to discharge the said obligation necessitated
the filing of the present application. There is, therefore, sufficient ground for granting the application as prayed in the notice
of motion.
I accordingly extend the time within which to apply for time to apply for extension
of time to appeal and hereby extend the period for lodging a Notice of Appeal against the decision in Civil Case No. 400 of 1998
in the High Court of Tanzania at Dar-es-Salaam. The Notice of Appeal to be filed within fourteen days from today. No order for costs
because the Court omitted to serve the applicant with the Notice of Delivery of Judgement, the cause of the delay.
DATED at DAR-ES-SALAAM this 4th day of April, 2006.
.RTF of original document