Cosmunda Supu vs National Bank Commerce and Others (Civil Appeal No. 110 of 1998) [2000] TZHC 201 (16 November 2000)

IN THE HIGH COUT?r OF TANZAJHA (DJ\R ES SJIU.AM DETIUCT RID3ISTHY) AT DAR :;3 SALAAM CIVIL AFPTJtL NOo110 OF 1998 ... c..........,.,,,.,:.- .... - ..... ......._--- ... ······-6'~ :·OSI·Tu1\fDA S UI?U • COO O O COO O O O O (IO C (IO 90 0 0 e C APPELLANT VERSUS 'l'HE NA'rIONAL BANK COMMERCE • o., Co Co, .1sT Ri-SSPOl'IDENT TANZANIA AUC'I'ION MART & C01JRT B:ROIDS 1 <.S 2ND Rl:::SPONDEN'.1 1 LTDo CHAlUE.8 1 '1ffYTE NIDYE ••• " .• , , ••• " • ,, , ., • '3RD RFSFC'1'1DENT RULING / In course of he-'.:'ring thie e.ppeal, the re,'3pond.e:nts heve r"·iPed two preliminary poiIJts of objection, to 1:d.t, thr.1t the eppeal is out of time, and that the appeel has joined the wrong party. 'I'he re.,,rondents through their counsel Mr ;K'9S.l:mmbugu · for 1st and 2nd Responde11ts and Hr Rwechungure for the '3rd Respor,dent, rer-:pecti-i-ely, have submitted that the documents necessary for lodging the eppe?l were re<?dy by 14/6/1998 but that the appellants filed the.appeal on 10/9/980 Mr Hyera learned counsel for the 3ppellant has submitted that the proper provision ought to be sectio'Yl 1 of P~rt II of the Fir.st Sche-d.ule of !,a-; of Limi tetion Act, 1971 ,vihere of the Limi t!.'ltion period iay~ ·· and not 45 days• Assuming that he w02 right, v1hich assumption this Cd)rt has difficulty in aggreeing with, their filed appeBl e"' conceded by the Hyera was four days out of time. I must hasten to point out that Mr Hye~ 1 s arguments that. the appe~•l attracts 90 days limitrtion period i.s to me both novel and reading the law up side down. Section 2 of' Part II !.f First/ 3 c::.1oduleto the I,a,·1 of Limitation provides for 45 days for eppe~-------- "'- to which no period of Limitation he2 been prescribed under the C0de, ubst&ntive l:=n-1 or the Limitation Act 1971. I 0 m not per.su,,·ded by Mr Hyera' s arguments th.,,-,t this appeel is covered under 90 dey,s limi t::.tion period. I therefore uph 0 ld tha.t preliminary objection. Has the.appeal been filed against a wrong party? Ithink yes~ The present respondent, the NBC, ceesed to exist E>Js of 1/10/97 by virtue of the National Bank of Commerce (Reorganisation Bnd V .tJng of Assets and , . . . . e::: ~ : . .-:...,J . Liabili tes) Act No,.23 of 1997. The proper leg1;1V to be sued is the NBC Holding Corporation. The decision of the Court of Appee/ iD the ce.,se of •• 0 ,,/2

2 NBC v/s Idd Nzimano - Civil Appeal No. 63 of 1997 is c_lear on this point and this Court is b0\ll1d in follow the pronouncement there in. In the en~, having considered all arr,wnents, for ad aainst the objections raised, the .secohd object:Lon is· also upheld. As the appeal is incompetent for being fi:l..ed out of time, the same is struck out with costs. Deli ered before Hrs I'1akani for Hyera - Applicants SgD: A.G. BUBTGSHI JUDGE 16/11/2000 Mrs Makani for Dr Nguluma/ Res:i;,ondents Certified true copy of the Original;.