Namza Aziz vs Millicom International Cellular S. A and Another (Civil Case No. 94 of 1995) [1999] TZHC 141 (8 September 1999)

• ·• IN THE HIGH COURT OF TANZANIA DAR ES SALAAM-DISTRICT REGISTRY AT DAR ES SALAAM CIVIL CASE N0.94 OF 1995 NAMZA AZIZ ••••••••••• APPELLANT VERSUS MILLICOM. INTERNATIONAL CELLULARS. A ✓ 1. 2. M. I • C • ( Tanzania) LTD. • • . • • • • • • RESPONDENTS f3,UBESHI I J : On 29/7/97, this court (Kaji J) dismissed an application to set aside an exparte judgment entered against the applicant on 6/3/97. This is an.application for extension of time to have the apveal • . Mr. El Maamry appearing for the applicant has ,. submitted that the chanees of the appeal succeeding are very good indeed. He adds also that his client failed to appear in Court due to negligence of counsel and that the applicant could not appear because he had· not been notified of the hearing dates by his counsel - hence a victim of matters beyond his control. Quoting Mulla on Code of Civil Procedure 12th Ed - pages 574 - 575 Mr. El Maamry has submitted that good c~use should be interpreted broadly to accommodate such a case. Counsel El Maamry has also added that there is a lot at stake in the main case and that the respondents winning the case through a technical point leaves a lot \ii/Fe desired. He concedes too that upsetting the Ruline of this court may be a Herculean task. He prayed for the court to allow the application. For the Respondent Mr. Mbuna learned Counsels started off by complaining on failure of the applicants to file his written subritission on the date ordered and once so -....,} filed on lack of service of the documents to the respondent. • •.• /2

2 Going by the courts· record, the applicant was ordered to file his written submission on or before 3/5/99 and respondent to file his by 16/8. The applicant however filed his submission on 19/8/99 when the respondent had already filed his by 16/8/99. In time and again this court has complained about such conduct. It is hoped that counsel in future. shall strive to adered to the schedule set, which if I may add, was set in their presence. Be that as it may, the respondent has strongly opposed the application for extension of time. He has argued that no sufficient cause has been shown to move this court to accede to their prayer. That, the applicant has laid blame on his counsel for having failed to institute the appeal wit}:lin the statutory period. Mr. Mbuna has cited before me a number of Court of Appeal decision including: AL~ISON XEROX SILLA ·VS TANZANIA HARBOURS AUTHORITY - Civil Application No.57 of 1998,

• DR. WILLIAM SHIJA ·VS DR. FORTUNATUS LWANYANTIKA Vi.ASHA Civil Reference No.12 of 1997 {unreported), KIGHOMA ALI MALIMA VS ABAS YUSUF MWINGAMNO - Civil Application No.5 of 1987 (unreported)·, and MAULID JUMA VS ABDALLA JUMA - Civil Application No.20 of 1988 (unreported) , where the Court of Appeal held inter alia that negligenae or inaction on the part of counsel does not amount to sufficient cause. Mr. Mbuna submitted further that in the instant application, the applicant did not bother to file anything for more than one year. In this connection, counsel referred thus court to another decision of the Court of Appeal. Inspector Sadiki and 2 others Vs. G~raxd Nkya Arusha Civil Application No.8 of 1996 where the Court of Appeal refused to grant extension where the applicant was late from only five days despite their Lordships view that the appeal had merit. • •••• /3

... __ ... . ' .. 3 On the issue that the suit involves huge sums of money~ ··-- ·1 ,. '

• --- .... Mr.. -_una stateq that this is not a actor for consiq.eration when· d~~ii1ng--wi.th ... applications for eite,nsion of time i Similarly, even ·wh·;;; · the--intened appGal has chance of success, that t:actor alone is not --n-uglf to-- e.xplain te delay - ref, the case of ALLSQN XERox::,sILA vs T.ftA,, civil . . ·\ .. Application Not?.·7 of 1998. Where emphasis was laid on the reason to explain the delay, I have given.this matte!" some serious cbnsideftiori as well as ,considering submi$sions filed by couti~~i as well as the affidavits filed for and against the application. Howeve:r I a of the fitm 1 nW that the applicant has not advanced sltf:f'icie~~ reason to move this . ' -·· ·.-, I •. • • • . court to grgnt extension of time• Oourtsel l Maamfy submitted that the court shoUld ihtrptt iiabiiity of c.ounsel strictly··whti the rights of ··iiertt are involved. ',. ,. . . : . . . • :1 but cited no authority to back phis propositionl There • • • . I are several authori tes, ori he stibJ/ct ha.tided down by our Court of Appea1 -i:,.ut co,msei Ei Ma.al'Jir, did riot wish to address the court on same .. F\lrther 1 counsel El Maamry seems to 9oncede that if time was enlarged he would still •· ' have the difficulty of eonvinciqg t1e Court of Appeal to upset the Ruling of this our, and:adds that at least if the appiicant is given the pporunity he will have gone down with a fight Srely, can this court be moved ~ to grant the appJ,.iation merely to give the applicant opportun.ity "to go down with a fight" •. I think not. There ought to be $Uffiyient reasoni''to explain the delay and not some w~shful thinking, In the end, I find that the application for extension of time lacks merJ t and I ;,dismiss it with aosts. :Aflli h)!)Q.,/¼ A. G.' BUBESHI .,, ;, JUDGE 8/9/99 ,, ..