M/S Mahdi Trading Limited vs M/S El Nasr Export and Import Company (Civil Case No. 159 of 1994) [1998] TZHC 2169 (25 June 1998)

l . IN THE HIGH COURT OF TA~ZANIA AT DAR ES SALAAM CIVIL CASE NO.159 OF 1994 M/S iAHDI TRADING LIMITED ..... PLAINTIFF VERSUS M/S EL-NASR-EXPORT AND IMPORT COMPANY . . , DEFENDAifT R U L I N G MSUMI, ,JK: On 10/7/97 ex parte judgment was entered against the applicant ompany. Through its former advocate, Dr Lamwai, <I! .. appliint filed an application for setting aside the said ex parte judgment: In a ruling delivered on 18/2/98 in the absence of the applicant, the application was dismissed. In the present appliation, which was filed on 13/3/98, the applicant is applying for extention of time within which to file notice of appeal against the ex parte judgment in question. The chamber summons is accompanied with the affidavit of one Mohy Ghomin who is the chief accountant of the applicant company. It appears that the only reason given by the applicant why it was late to file the notice is contained in paragraph 6 of the affidavit of Mohy Ghomin. This is what he asserts: That I am advised that no notice of appeal could be filed whilst an application for ' setting aside the ex parte judgment was still

2 pending in this court, hence another reason in failing to file notice of appeal in time. In reply to this contention respondent relies on paragraph 4 of the counter affidavit of its managing director one Saleh Said Nahdi. In that paragraph the deponent says: I have been informed by my lawyers, Mkono and Company, Advocates, that the law requires a notice of appeal to the Court of Appeal to be filed not more than 14 days from the decision one wishes to appeal from. In this case the affida~it of Mohy Ghomin gives no explanation for the appellant's delay following the dismissal of the application to set aside the ex parte judgment sought to be appealed against. I respectfully agree with this observation. This application has been filed nine days outside the limitation period of fourteen days. No reason has been given why the notice of appeal could not be filed within fourteen days after the application for . . . setting aside the ex parte judgment was dismissed on 18/2/98. The contention that applicant could not have filed the requiied notice while there was pending an application for setting aside the ex parte judgment is not relevant explanation for the period of delay involved in this application. This application is I

• therefore refused JA.JI i(IOii(iOZI 25/6j98 For the applicant. Absent. For the respondent. Dr Kapinga,