MOHAMED AMOOR KHALID AND MAHAMOUD AYUB IBRAHIM v AHMED ISSA KHALFANI 1994 TLR 136 (CA)

MOHAMED AMOOR KHALID AND MAHAMOUD AYUB IBRAHIM v AHMED ISSA KHALFANI 1994 TLR 136 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Ramadhani JJA, Mnzavas JJA and Mfalila JJA F

CIVIL REFERENCE NO. 12 OF 1993

13 May, 1994

G (From the Ruling of a single judge of the Court of Appeal of Tanzania at Zanzibar,

Omar, JA).

Flynote

Court of Appeal Rules - Application to strike out a notice of appeal for failure to

institute the appeal in time - Whether lack of money is a defence. H

-Headnote

The reference was from the ruling of the Court of Appeal by a single judge granting

the respondent an application to strike out notice of appeal by the applicants for

failure to institute the appeal within 60 days after being supplied with the copy of

proceedings. The applicants argued that their failure to institute the appeal in time

was due to lack of funds and ignorance regarding the steps to be taken in such

circumstances. I

1994 TLR p137

Held:

(i) Lack of funds to institute an appeal within sixty days as required by the

A rules is an irrelevant reason in an application to strike out a notice of appeal.

Case Information

Reference dismissed.

No cases referred to. B

[zJDz]Judgment

Mfalila, JA, delivered the following considered judgment of the Court:

This is a reference from the Ruling of Omar, JA in Civil Application No 2 of 1993 in

C which the applicant Ahmed Issa Khalfani, the present respondent, sought to have

the respondents' notice of appeal struck out. In that application, the applicant alleged

that the respondents, Mohamed Amour Khalid and Mahamoud Ayub Ibrahim, the

present applicants, had filed their notice of appeal without serving the D same on

him and that subsequently they failed to take an essential step timeously ie they did

not institute the appeal within the prescribed period. Omar, JA found after

scrutinising the records in the respondents' possession that the notice of appeal had in

fact been served on the applicant but that the respondents had failed to institute the

appeal within sixty days after being supplied with the copy of E proceedings. He

therefore granted the application and struck out the notice of appeal.

The applicants were aggrieved by this decision and filed this reference on the basis

that they failed to institute the appeal in time because they did not have the F

money to meet the costs, and that they came to Court to file the appeal as soon as

they acquired the necessary funds.

At the hearing of this reference, both applicants conceded that on the facts there was

nothing wrong with the decision of the single judge, but they argued that they G

should be allowed to proceed with their appeal because the reasons which prevented

them from instituting the appeal on time were beyond their control, in that they

lacked the necessary funds to pay for the appeal and they were ignorant of the law as

to the steps to be taken in such circumstances. The respondent, no H doubt in view

of the applicants' concessions on the correctness of the decision of the single judge,

said he had nothing to say.

The reasons which the applicants gave for not instituting the appeal in time, could

have been relevant if this were an application for enlargement of time. In this

application we are only dealing with I

1994 TLR p138

A the question of striking out the notice of appeal for failure to take an essential

step in time. We agree with the findings of the learned single judge that the notice of

appeal was served on the present respondent in time and that the application for the

copy of proceedings was in writing and was copied to the respondent. But since the

proceedings were supplied to the applicants on 28 January 1993, they B should have

instituted the appeal within sixty days ie by 29 March 1993. They did not do so until

5 August 1993, almost five months out of time. In these circumstances the learned

single judge did not have any other alternative except to allow the application and

strike out the notice of appeal. Indeed as we have already C indicated the applicants

have conceded as such.

For these reasons we dismiss this reference with costs.

1994 TLR p138

E