Court name
Court of Appeal of Tanzania

National Bank of Commerce vs Star Transport Co Ltd () [1997] TZCA 27 (06 November 1997);

Law report citations
1997 TLR 293 (TZCA)
Media neutral citation
[1997] TZCA 27

Kisanga JA: I
This is an application for the extension of time to seek leave to

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 ex-parte 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

   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

F