ALHAJI ABDALLAH TALIB v ESHAKWE NDOTO KIWENI MUSHI 1990 TLR 108 (CA)

 

ALHAJI ABDALLAH TALIB v ESHAKWE NDOTO KIWENI MUSHI 1990 TLR 108 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Kisanga JJA, Ramadhani JJA and Mnzavas JJA

G 23 August, 1990

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Notice of appeal filed -

Subsequently notice of motion seeking H leave to appeal out of time filed under rule

8 of the Court of Appeal Rules - Whether notice of motion properly filed.

Civil Practice and Procedure - Court of Appeal Rules - Notice of motion seeking leave

to appeal out of time filed - Counter I notice of motion seeking to have the appeal

struck out for want of leave to appeal out of time subsequently filed - Whether

proper.

1990 TLR p109

KISANGA JJA, RAMADHANI AND MNZAVAS JJA

Civil Practice and Procedure - Court of Appeal Rules - Application to lodge appeal

out of time - Sufficient reason for the A delay must be given.

-Headnote

The appellant lost a case in the High Court in which he claimed for damages for

breach of a building contract. The B appellant decided to appeal and gave notice of

appeal within prescribed time limit. He then delayed in lodging the appeal until the

prescribed 60 days time limit had expired. So the appeal was lodged accompanied

with an application under Rule 8 of the Court of Appeal Rules, for extension of time

to lodge the appeal. The respondent, C with the knowledge of the application for

extension of time, proceeded to file a counter application seeking to have the appeal

struck out on the ground that no order for extension of time to institute the appeal

was obtained. The Court considered the propriety of the counter application and

filing the application for extension of time under Rule D 8. The Court also

considered whether there was a sufficient reason in this case to grant the application.

Held: (i) It was improper for the respondents, with the notice of the application of

extension of time, to react by filing a counter notice of motion seeking to have the

appeal struck out for want of leave to lodge it out of time, the E very shortfall which

the appellant's application sought to remedy;

(ii) if the respondent wanted to challenge the application, the proper thing to

do was to file a counter affidavit in order not only to avoid confusion and multiplicity

of actions but also make the proceedings neat and orderly; F

(iii) where the appellant failed to lodge his appeal within 60 days after filing

his notice of appeal as required under Rule 83 (i) of the Court of Appeal Rules he can

apply to the court under Rule 8 for leave to do so out of time. And this is precisely

what the appellant has done; G

(iv) the delay in lodging the appeal caused by the appellants absence from the

country at one time and also his advocates indisposition and temporary absence from

the country at another time after the appellant himself had returned into the country

in the instances of this case do not constitute sufficient reason under Rule 8 of the

Court of Appeal Rules. H

Case Information

Application dismissed.

Lobulu, for the appellant/applicant

Kinabo, for the respondent I

1990 TLR p110

KISANGA JJA, RAMADHANI AND MNZAVAS JJA

[zJDz]Judgment

A Kisanga, Ramadhani and Mnzavas, JJ.A.: There is before us an appeal from the

decision of the High Court (Munuo, J. (Mrs.)) dismissing the appellant's claim for

damages for breach of a building contract. The appeal was accompanied with an

application for extension of time to lodge the appeal, as the appeal had not been

lodged within B 60 days of giving the notice of appeal as required by rule 83 (1) of

the court of appeal Rules. After the application was filed the respondent, with the

knowledge of it, proceeded to file a counter application seeking to have the appeal

struck out "on the ground that no order for extension of time to institute the appeal

was obtained". When the C appeal was called on, we had to deal with this

application first. Mr. B. Lobulu appeared for the appellant while Mr. F.S. Kinabo was

for the respondent.

In the course of hearing the applications, Mr. Lobulu submitted that when he filed

the notice of motion seeking leave D to lodge the appeal out of time, it was improper

for the other side, with the notice of such application, to react by filing a counter

notice of motion seeking to have the appeal struck our for want of leave to lodge it

out of time, the very short fall which the appellant's application sought to remedy.

We think that Mr. Lobulu is right. The course E adopted by the respondent is prone

to lead to unnecessary multiplicity of actions and confusion. As suggested by the

learned counsel, if the respondent wished to challenge the application, the proper

thing to do here was to file a counter affidavit. That would not only avoid confusion

and multiplicity of actions, but would also make the proceedings neat and orderly.

F We shall now turn to the merits of the appellant's application. But the appellant

and his advocate each filed an affidavit in support of the application. The main points

as disclosed by the two affidavits are as follows: The judgment being appealed from

was given on 20.10.87. The request for documents for the preparation of the record G

was made on 29.10.87 and the said documents were received by the appellant's

counsel on 23.9.89. Mr. Lobulu contends that on receiving the documents he could

not proceed to lodge the appeal as he was unable to obtain instructions from the

appellant who had left for Yemen and Saudi Arabia on 24.3 .89 for purposes of

medical H treatment, among other things, and did not return until 11.3.90. The

appellant went to see him on 23.3.90 only to find the he (Mr. Lobulu) had travelled

out of the country. Mr. Lobulu was back in his office on 9.4.90 and that is when he

advised the appellant to pay the fees in Court for the lodging of the appeal. That is to

say the appellants filed the appeal over six months after his advocate head received

the documents for preparation of record of the I appeal.

1990 TLR p111

KISANGA JJA, RAMADHANI AND MNZAVAS JJA

Mr. Lobulu's notice of motion for the extension of time is brought under rule 8 of the

court appeal rules. That rule A says:

The Court may for sufficient reason extend the time limited by those Rule or by any

decision of the court or of the High Court for the doing of any act authorized or

required by these rules, whether before or after the doing of the act, and any B

reference in these Rules to any such time shall be construed as a reference to that

time as so extended.

Mr. Kinabo, opposing the application, submitted that the application was wrongly

brought under rule 8 of the Rules. C He argued that rule 8 was applicable only

where there was an appeal before the Court but in his view there was no appeal here

because the appellant had obtained no leave to institute it. He strenuously contended

that the appellant's purported appeal was misconceived and incompetent and should

therefore be struck out. In support of D the contention he referred to the ruling of

this Court in the case of Arusha International Conference Centre v Damas Augustine

Ndemansi Kavishe. Civil appeal No. 34 or 1988 (Unreported). That was the substance

of his counter notice of motion.

It appears, however, that the submission by the learned counsel is with due respect,

somewhat misguided. In the E context of the present case rule 8 as reproduced above

is saying that if the appellant failed to lodge his appeal within 60 days after filing his

notice of appeal, as required under rule 83 (1), he can apply to the court for leave to

do so F out of time. And this is precisely what the appellant has done. He failed to

lodge the appeal within the time limit of 60 days, and he is now asking the court to

enlarge that time. Mr. Kinabo's submission that the appeal is incompetent because no

leave was obtained to institute it is necessarily self defeating because it ignores or G

overlooks the fact that there is already before the court the appellant's application for

leave to lodge that appeal out of time.

Nor is it correct to argue, as Mr. Kinabo did, that there is no appeal before the Court.

The record shows that the appeal was lodged in the sub-registry at Arusha on 12.4.90.

That, admittedly, did not institute the appeal. But since H the appellant had given

notice of appeal within the prescribed time limit then the process of appeal had

commenced. That is to say, there was a proceeding before the court, and the present

application is made in pursuance therefore. We should add, for the sake of

completeness, that if the present application for leave is I granted, such leave would

operate retrospectively and the appeal would be deemed

1990 TLR p112

KISANGA JJA, RAMADHANI AND MNZAVAS JJA

A to have been duly lodged on 12.4.90 in which case it would not be necessary to

lodge it a second time.

Kavishe's case cited by Mr. Kinabo is easily distinguishable from the present one. That

case dealt with a situation B where the intended appeal was lodged within the

prescribed time but the appellant had failed to extract the decree being appealed

against and to make it part of the record. Following a series of previous decisions of

this court and of its predecessor, we held that the appeal was incompetent and we

struck it out accordingly. But in the instant case we are at a different stage of the

appeal. We are at the stage where the appeal is not yet lodged; the time for C lodging

it has run out and the appellant is seeking leave to lodge it out of time. At this stage

the question whether or not the decree has been extracted, and if not what are the

consequences, does not fall for consideration yet. It does so only after the leave is

granted, if at all, and the appeal is duly lodged. We are therefore satisfied that the D

application was properly bought under rule 8 of the Court of Appeal Rules.

Mr. Kinabo's other ground for resisting the application was that no sufficient reason,

in terms of rule 8, is shown for granting extension of time. There is merit in this

submission. The appellant's main contention was that the delay in E lodging the

appeal was caused by his absence from the country at one time, and also by his

advocate's indisposition and temporary absence from the county at another time after

he himself had returned into the country. The claim, however, is entirely without

merit. The appellant travelled to Yemen and Saudi Arabia for the purposes of medical

treatment, among other things. But he was not hospitalized there. His medical cards

show that he attended only as F an outpatient, reporting at the hospital at intervals

of up to four months, which means that he was not seriously sick. As such there was

nothing which prevented him from inquiring about the progress of his appeal either

directly from the Court or through his advocate when he had duly instructed to rule

the notice of appeal and to request for G documents for preparation of the record.

His indolence is further demonstrated by the fact that upon his return to the country,

he did not go to see his advocate promptly; he did so only after some eleven or twelve

days. His claim that he was convalescing during this period is baseless in view of the

fact that he was not hospitalized at any time H and was not seriously sick. His

advocate's indisposition and temporary absence from the country cannot help him

either. His own advocate when arguing this application disclosed that his

indisposition started on 25.11.89, which is over two months after he received from

the Court the documents for preparation of the record. That provided more I than

ample time during

1990 TLR p113

which he could have informed his client of his receipt of the same and ask him for

further instructions in the matter, if A any.

Mr. Lobulu further contended that the appeal had overwhelming chances of success,

that the appeal was already filed, that the court should not enforce the rule strictly so

as to deny justice to the appellant and that if the application is granted, no prejudice

would be caused to the either side. We think that these matters do not advance the B

appellant's case anywhere. This is a case involving an inordinate delay in lodging the

appeal. The appellant has a duty to explain such inordinate delay but he has not. We

think that the matters now being put forward by counsel might have been relevant if

the appellant explained the inordinate delay but since he has failed to do so, we do

not C think we are obliged to consider them.

We therefore uphold Mr. Kinabo's submission that no sufficient reason, in fact no

reason at all, is shown for the delay, and hence for granting the leave sought to lodge

the appeal out of time. The application is accordingly D dismissed with costs.

Appeal dismissed.

1990 TLR p113

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