This is an application for extension of time in which to.applyfor. leave to appeal out of time. The matter relates to High Court Civil

Transcription

1 IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA BERTHA ANQ~J~S_QN RESPONDENT (Application for extension of time from the decision of the High Court of Tanzania at Moshi) (Mchome, J.) dated the 31 st day of August, 2000 in Civil Appel No. 26 of 1999 This is an application for extension of time in which to.applyfor leave to appeal out of time. The matter relates to High Court Civil Appeal No. 26 of The application is supported by an affidavit sworn by the applicant, Paul Martin. In order to appreciate the sequence of events leading to this matter it is convenient to set out briefly the background. In High

2 Court Arusha Civil Appeal No. 26 of 1999 (Mchome{ J.) of the applicant{ Paul Martin lost in favour of the respondent. Dissatisfied{ the applicant set about the process of appealing against the decision of the High Court by first applying to the High Court for leave to appeal to this Court. Apparently{ the application for leave was refused by Munuo{ J. (as she then was) on On { this application was filed in this Court under rule 8 of the Court Rules{ 1979 (hereinafter the rules). From the affidavital information and the submissions by Mr. Mkongwa{ learned counsel for the applicant{ the delay in applying for leave to appeal in this Court in terms of the provisions of rule 43 (b) of the rules after refusal by the High Court is explained as follows: First{ that after the application was lodged in this court which was struck out on on the technical ground that it was not shown under which rule the application had been made. Second{ thereafter{ through inadvertence on the part of the applicant there was a delay in filing the application. That is, due to inadvertence on the part of the applicant who misplaced the note of information

3 which had been passed on to him by Mr. Shayo, the previous advocate for the applicant, the delay was caused, Mr. Mkongwa further submitted. However, counsel was quick to point out that as soon as the applicant became aware of the true position of the matter, namely that leave to appeal had been refused by the High Court on , prompt action was taken to file this application on In the circumstances, Mr. Mkongwa urged that sufficient reason had been shown for the delay to warrant the extension of time sought. For the respondent, Mr. Stolla, learned counsel, appeared. He submitted that according to paragraphs 8 and 9 of the affidavit in support of the application the applicant had not instructed counsel to take any steps in instituting the appeal. This, Mr. Stolla stressed, was nothing but a clear case of lack of due diligence on the part of the applicant. The fact that the applicant misplaced or lost the paper on which the advocate handling the application had indicated , the date when the ruling refusing leave to appeal had been delivered, amounted to negligence, Mr. Stolla emphasized. He

4 also stated that it is common knowledge that negligence on the part of counselor any other party involved does not constitute sufficient reason for extending time. The Court was referred to the cases of Athuman Rashid V Boko Omar (1997) TLR 146 and Salum Sururu Nabahani V Zahor Abdulla Zahor (1988) TLR 41. Concluding his submission, Mr. Stolla maintained that on the facts as deponed by the applicant and in view of the principle enunciated by the court in various cases, there was no sufficient reason shown for the delay in seeking extension of time in which to apply for leave to appeal out of time. He urged the Court to dismiss the application. It is common ground that the facts giving rise to the case are generally not disputed. The only issue is whether on the facts sufficient reason for the delay in seeking leave to appeal to this Court out of time has been shown. Under rule 43 (b) an application for leave to appeal has to be lodged in this Court within 14 days of the refusal by the High Court. In the instant case the High Court,

5 (Munuo, J. as she then was) refused to grant leave on The application before me was filed on This is more than four (4) years outside the period limited under rule 43 (b). In that situation as already indicated, the only explanation given for the delay was that first, the applicant had not instructed the advocate who had conducted the application in the High Court to pursue any steps towards the institution of the intended appeal in relation to High Court Civil Appeal No. 26 of This would include among other things, the filing of the application for leave in this Court after refusal by the High Court. Second, that the applicant through inadvertence misplaced the note from Mr. Shayo, the previous counsel indicating the date when the ruling was to be delivered by the High Court. That due to mix up and inadvertence on the part of the applicant, this application was not lodged within the time prescribed under rule 43 (b). The next issue for consideration is whether the circumstances leading to the delay constitute sufficient reason within the provision of rule 8. For my part, I am settled in my mind that in the

6 circumstances, no sufficient reason has been shown. As submitted by Mr. Stolla, learned counsel for the respondent, the delay was caused by lack of diligence on the part of the applicant. Upon notification by Mr. Shayo, learned counsel who had handled the application in the High Court that leave to appeal had been refused on , the applicant did not take any further steps towards the institution of this application. Worse still, the note from the advocate was misplaced. This, to say the least, was nothing but negligence on the part of the applicant. Negligence, as no doubt Messes Mkongwa and Stolla, learned counsel for both parties are aware, does not constitute sufficient reason to warrant the Court's exercise of its discretion to grant extension of time. this legal principle. In a number of cases, the Court has reiterated For instance, in Salum Sururu Nabhani v Zahor Abdulla Zahor (supra), the applicant sought to appeal out of time by applying for leave to appeal out of time. The Court held that the applicant had failed to advance sufficient reason to justify leave to file appeal out of time after the delay of about three weeks.

7 While the delay in the Salum Sururu case was for about three weeks, in the instant case the delay was for a period of well over four years. This, as Mr. Stolla correctly in my view urged, was inordinate delay. In Asmin Rashid v Boko Omar (supra) the applicant filed notice of appeal on , the same day the ruling of the High Court was delivered. However, for one year, no essential step had been taken to prosecute the appeal. Striking out the notice of appeal, the learned single Judge of this Court held that the delay for one year was more than inordinate. In Abbas Yusuf Mwingamno v Kighoma Ali Malima, Civil Application No. 7 of 1987 (unreported) the Court deplored counsel's negligence i handling the case that resulted in the delay. The application f r extension of time was dismissed. In the instant case, it is my view that from the facts, the following two aspects are, established. First, that the delay in seeking extension of time in which to apply or leave to appeal to this Court out of time for a period of well over 4 years was, to say the

8 least, inordinate. Second, that the delay was a result of inaction and lack of diligence on the part of the applicant. These factors, I am exercise of its discretiona powers to extend the time sought in the application. Nor I a satisfied that there are other special circumstances that woul otherwise warrant the application to be granted. In the upshot and f r the foregoing reasons, the application is LAAMthis 17 th day of October, JU D.Z. LUBUVA TICE OF APPEAL I certify that this is a true copy of the original.