Methusela Enoka vs National Microfinance Bank Ltd (Civil Appeal No. 266 of 2019) [2022] TZCA 3065 (19 July 2022)

METHUSELA ENOKA V. NATIONAL MICROFINANCE BANK LTD IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MUGASHA, J.A., KIHWELO, J.A. ) CIVIL APPEAL No. 266 OF 2019 (Appeal arising from the decision of the High Court of Tanzania, at Mwanza) Appeals - Whether the appellants appeal was time barred. Civil procedure and practice - Exclusion of limitation of time to lodge an appeal

• whether the time for lodging an application to be supplied with the copy records of appeal was excluded. This appeal arised from the High Court at Mwanza’s dismissal of the appellant’s appeal against National Microfinance Bank Ltd (NMB) on 29/02/2016 for being time barred. The appellant had initially sued NMB for losing TZS 3,783,000.00, alleging that the los s was due to the bank’s negligence. The trial court dismissed the suit for failure to prove the claim, and the appellant appealed to the High Court. Before the High Court could hear the appeal, the judge questioned the timeliness of the appeal, noting that the trial court’s judgment was delivered on 21/04/2015, but the appeal was filed on 22/09/2015. The appellant’s counsel explained that an applicatio n for copies of the judgment and decree had been made on 21/04/2015, and certified copies were only supplied on 11/09/2015.

Held: (i) The Court held that the appeal was technically time barred, but the appellant was entitled to automatic exclusion under section 19(2) and (3) of the Limitation Act for the period spent obtaining certified copies of the judgment and decree. (ii) This exclusion does not require any document to be attached to the memorandum of appeal; it is sufficient that the dates of the critical events are on record. (iii) Section 19(2)(3) of the Act provides that the time taken to obtain a copy of a judgment or decree is excluded when computing the prescribed limitation period for filing an appeal. Statutory Provisions referred to: (i) Court of Appeal Rules (ii) The Law of Limitation Act Cases Referred to: (i) African Marble Co. Ltd v. Tanzania Saruji Corporation [1999] TLR 306 (ii) Gregory Raphael v. PastoryRwehabula [2005] TLR 99. (iii) Mohamed Salimini v. JumanneOmaryMapesa, Civil Appeal No. 345 of 2018. (iv) Alex Senkoro and Others v. EliambuyaLyimo, Civil Appeal No. 16 of 2017.