Armando Petrochi vs National Bank of Commerce (Civil Case No. 116 of 1997) [1999] TZHC 147 (22 July 1999)

r IN THE HIGH COURT OF TA.NZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL c1,sE N0.116 OF 1927 ARMANDO PETROCHI •o•o oooo•ooosi oo oo•• •o Versus PLAINTIFF NATIONAL BANK OF COMt·iERCE • · ••• o. , •• • •.. DEFENDANT ' RULING : ~ .. • CKti.N JA 1 J. : , 1 . - This is an application for leave to appeal against the decision of this Court, Chipeta, J., dated 2nd October, 1998. The application is supported by the affidavit of Leopold Thomas Kalunga, an advocate of this Court and courts subordirlate thereto except prmary courts. According to the affidavit evidence the plaintiff, now the applicant, impleaded the eastwhil National Bank of Commerce before it was re-organized and split into three new banks, incend:i.ng, the National Bank of Commerce (1997) Limited. By reason of those changes the applicant decide~ to sue the National Bank of Commerc:e (199?) Limited (NBC 1991 Ltd) in place of the disbanded original defendant. It is sworn that on 11th December, 1997 this Court entPred an ex p8l'ke judgment fa~ the plaintiff, against ·NBC (1997) Limited, that is. The judgrnent-derrto» neither applied to have the ex parte decree set aside nor did he apply for a eview within the prescribed time of 21 days. But when the'applicant applied for the drawn order to enable him execute his decree he was informed of the existence of challenges to the x J?arte decre he sought to execte. There was then an appl,ication for an order vacating the :gx,;;&t,; dree. Upon hearing the application the ex parte decree was set aside on 22nd October, 1998 after reviwing that ex parte judgment. That "~o :,prayer for review was made by the judgment debtor.

... 2 Mt. Kalunga; learned counsel for the plaintiff/applicant has argued that it is unprecedented that the Court could set aside its lieeisi_on, pUo rilotu.. He c.ontends further that it is enough in an applications such as this one to show that there is an arguable case. He relies on the decisioll in Sanso Day Limited v. Dresner Bank, (1974) • • E.A. 414 for his proposition of the law. Mr. Mujulizi, learned counsel for the respondent, contends tbot it is not true that the decision of the Court was suo motu because there was an application for such relief that was filed by NBC (1997) Limited. In his view the decision taken by the court was the most appropriate in the circumstances. Upon hearing both learned counsel I have satisfied myself that the application has merit. It raises three points of law which are sufficiently strong and whieh should be certified for appeai, namely:- ( 1) Whether there was ah application for a review 9 (2) Whether the Court was entitled to review its decision in circumstances of this case; and (3) generally there is an arguable ease. I accordingly certify the above points for appeal. Application allowed with costs. Delivered. ~Jr. Kalunga 1 Advocate: For Applicant Mr. Kalunga/Mro Mjulizi, Advocate: For Respondent