Hirji Abdallah Kapikulila vs NCBA Bank Tanzania Limited (Civil Application No. 889 of 2024) [2025] TZCA 995 (22 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 889 OF 2024 HIRJI ABDALLAH KAPIKULILA.....................................................APPLICANT VERSUS NCBA BANK TANZANIA LIMITED ............................................ RESPONDENT (Application for extension of time to file Bill of Costs arising from the Order of the Court of Appeal of Tanzania at Dar es Salaam) fNdika, Kente And Makunau, JJA.'t dated the 18th day of May, 2022 in Civil Application No. 489/16 of 2021 RULING 8th& 22n d September, 2025 KIHWELO. J.A.: The applicant, by way of notice of motion filed the instant application on 2n d October, 2024 under rules 10 and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), as well as item 2 to the 3r d Schedule to the Rules seeking to move the Court for enlargement of time within which to lodge the Bill of Costs. The application is accompanied with an affidavit, duty sworn by the applicant to support his quest. The application has been i

gallantly resisted by the respondent who filed an affidavit in reply. Both the applicant and the respondent filed list of authorities to support their respective positions. Ahead of hearing of this application Mr, Octavian Mushukuma, learned counsel for the applicant informed the Court that the applicant has moved the Court in terms of rule 10 of the Rules, for it to enlarge time to lodge the Bill of Costs out of the time prescribed by law. Mr. Mushukuma, however admittedly contended that the prayers sought is exercisable by the Deputy Registrar and not a Single Justice as the applicant preferred in the instant application. In the circumstances, the learned counsel invited me to transfer the case file to the Deputy Registrar for it to be duly determined. He further submitted in the alternative that, should the Court find that the application is incompetent then, the applicant should not be condemned to costs and instead each party to bear own costs. On the adversary side, Ms. Hamisa Nkya, learned counsel for the respondent was fairly brief in response. In her view, the instant application is incompetent since the same is predicated on rule 10 of the Rules while 2

extension of time to lodge Bill of Costs is exercisable by the Deputy Registrar and not a Single Justice. She went further to submit that according to rule 10 of the Rules which was cited by the applicant when read together with rule 3 of the Rules the Deputy Registrar cannot exercise powers of extension of time under that rule while at the same time a Single Justice has no mandate to extend time to lodge Bill of Costs which power is not exercisable under rule 10 of the Rules but rather under item 2 to the 3r d Schedule to the Rules. In that case, the learned counsel argued that the application before me was incompetent and therefore, she implored me to struck out with costs. In rejoinder submission Mr. Mushukuma did not have much to submit other than reiterating what he had earlier on submitted. He further argued that, in terms of the proviso to rule 48 (1) of the Rules the anomaly can be glossed over. I have painstakingly examined the record and considered the rival arguments by the learned trained minds and my starting point, I think, for the better appreciation of the gist before me is to digress the essence of the 3

provisions of rule 10 of the Rules which deals with enlargement of time and reads thus: "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after doing o f that act and any reference in these Rules to any such time shall be construed as a reference to that time as so extended." At the outset, I wish to point out that, the law is very settled and clear in this jurisdiction that, the power to enlarge time under rule 10 is limited to the Court and in terms of rule 3 of the Rules, the term Court do not include the Deputy Registrar. I therefore, find considerable merit in Ms. Nkya's submission that the applicant improperly moved the Court since the Deputy Registrar cannot exercise powers of extension of time under rule 10 of the Rules, and also a Single Justice has no mandate to extend time to lodge Bill of Costs which is the exclusive jurisdiction of the Deputy Registrar. 4

I have understood Mr. Mushukuma trying to take rider under the proviso in rule 48 (1) of the Rules in seeking the Court to gloss over the anomaly. For clarity, that provision reads: "Subject to the provisions o f sub-rule (3) and to any other rule allowing informal application, every application to the Court shall be by notice o f motion supported by affidavit and shall cite the specific rule under which it is brought and state the ground for the relief sought: Provided that where an application omits to cite any specific provision o f the law or cites a wrong provision > but the jurisdiction to grant the order sought e x is t s the irregularity or omission can be ignored and the Court may order that a correct law be inserted . " I have carefully considered Mr. Mushukuma's argument in line with the provisions of the law cited above, however, I am unable to accept that proposition as sensible and correct position applicable in the circumstances of the application before me. The answer is not far-fetched, in the instant application before me the jurisdiction to grant the order sought does not exist as earlier on stated and therefore, the Court cannot ignore the irregularity or omission complained of. 5

To that end, I must conclude that the applicant has improperly moved this Court. In the result, this application is incompetent and is, accordingly, dismissed with costs. It is so ordered. DATED at DODOMA this 18th day of September, 2025. P. F. KIHWELO JUSTICE OF APPEAL Ruling delivered this 22n d day of September, 2025 in the presence of Ms. Hamisa Nkya, learned counsel for the Respondent via virtual court with absence of the Respondent and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. 6