tanzania zambia railways authority vs raphael chande others 1997 tzhc 223 14 may 1997

IN THE HIGH COIT'T OF TADTbAITT-A at D U i : : 3 jala ah M I S C . C I V I L C/JJG3 ITO, 2 ^7/2000 T 4 N 3 l N I \ /.\iniA R A I L W A Y S ‘ l U T F C P I T Y ....... A P P L I C A N T y 2u s 2APKA3L C H W 3 3 & 28 ....... . 1 ... .RSSPONDISMT -Lit .• ,, O . 1 This is a dual a p p l i c a t i o n by T^ussania Sambia R a i l w a y A u t h o r it; (T^sqn), t.i^ a p p l i c a n t for e x t e n s i o n of titne within which to a p p l y f or leqve to a p p e a l to tbe C o u r t of A p p e a l ag a i n s t the d e c i s i o n of E*»ganda (Mrs) P r i n c i p a l R e s i d e n t M a g i s t r a t e extended Jurisdiction in C i v i l A p p e a l No, 66/2000 a - as le-,ve to a p p e a l to the Co-rt c b /-~y'©al. Th o , t.>n f.. sup.-^i'tad b y the a f f i d a v i t of C-onoviewe N n a m a t o v u IL,-* io .riioc A d v o c a t e h=vs b e e n fi.i.cd under Section 14 of • --» of xmit ;:iog Act 1971 a nd Section 4{ l)(c) of the AppQ.i j.ato -u r i e d i c t i o r ,ct 15/79 as anendai.!, R u l e s 3, 8 and 43(a; of Cc. i-t o 1: Appear ku.»„ .. • ' r.y rbbar e n a b l i n g p r o v i s i o n s 'f the law. It is de p o n e d on beb- c a p p l i c a n t b y firs Kato le a r n e d a d v o c a t e that tbore wrs r;elay in cbt ,Inin,:; c o p y of j u d g m e n t a n d p r o c e e d i n g until iiove^ber 3rd, 2000, a factor which ca u s e d d e l a y f or tbe a p p l i c a n t to f xi^ the c h a m b e r sun-nons on 8th N o v e r 2000. It is the c o n t e n t i o n of Mrs Kato l earned A d v o c a t e in support of the a p p l i c a t i o n th a t t he time for l o d g i n g tbe appeal b e g i n s to r un from the date w hen such documents are -nade available. Applicant has cited the case of M a r y Kiinaro Vo. K h a l f a n K o h ^ a e d /l99]j7 T L R 202 *02 in support of n is contov;tion. As r e g a r d s the apj^eal i t s e l f it is c o n t e n d e d b y tbe appe l l a n t t h a 4- the a ppeal h a s a g o o d c h a n c e of success in view of tbe fact that the j u d g m e n t of the D i s t r i c t C ,’rt was m ad© i n curiam and f u r t h e r that a c o n t e n t i o n s point of law exists on whe t h e r the provisions af a c c o m o d a t i o n and s alary to an employee whose se r v i c e h a s b e e n termi n a t e d sboulc r icco'nbanied ?:y the provisions of d aily s u b s t a u c e allowance. -k 2 On the n t o v e grounds the applicant pra y s for grant of extension of tisie to file the a ,,peal. T h e re s p o n d e n t s , R a p h a e l ande arc! 28 others, through the se r v i c e s of M a l e t a and lie -o he "c -.fees ha v e o p posed the npplic-ition, c o n t e n d i n g iator alia, that no sufficient T'- ,oac have been given for the del a y in f i ling the a p p l i c a t i o n .. On the c o n t r a r y the respon d e n t s a s sign n e g l i g e n c e ou the part of the a p plicant on the del a y to collect the copy c? judgment and pro cseclio go . In addition while the l e a r n e d Adi -cates for the r e s p o n d e n t s c o n c e d e that l i mitation of txtno to appeal begins to ijg frcn the time of s u p p l y of documents n e c e s s a r y for the pu r p o s e s of f'ra'Tiin^r a so>.w^ "io:w ? -ndun of •>t-po.--. 1 ? yet tho £ ct.„ on th=> grc^ .- i:..d o p a ‘chat tee applic a t i o n wan filed thir t y s a ’- ri.-— .>y L - /arj-i (iRM) a ; x "v dod iurisc.ict ioa ■ c e r t 1 fie -s aad ^aaa;;. f-..v c ..llocti.on on. 2 / l 0 / 2000, T'>,, respcn'.-. j .(..a *,u ien J t‘.ja t h e ;j. ;lication for extens' lodji' >■ a L ^ - : .. aav -;er" :: an cl :lt offends the requirea,outs of R u l e i ( ( l ; c- raCourt of A p p e a l Rules. Furthermore it is submitt • ~ . - ” o.: aondents that it?, cieter!nining w o ether or a ■ . i < ~ . txar fov leave to appeal out of ti"!G shot?Id be allowed, the court h-ao to co n s i d e r r e a s o n a for the del a y as well ■-s the lib- hood of success of the i n tended appeal. Ho ouch oan camerat xons exist in the present application in the canci d e r e d vi e u of t h e -r e s p o n d e n t s . It is -e v i d e n t fro:i tlie 'fhc;^ ^ t h e ’r e c o r d "lhat t h e J ': ’ applicant c an no #*e'scape to s’ -,c o l d e r t h e Lla-no f o r the delay i n filing- t h e a p p l i c a t i o n f or leave to appeal within the statutory period ex fourteen days of the decision, 'While the decision of PRM extended juris-h.ct Ion was delivered on 12/9/2001 it wa s due -■u i r e a d y f o r c o l l e c t i o n on 2 / 1 0 / 2 0 0 0 upon c e r t i f i c a t i o n b y :t he R e s i d e n t l..a ;'letra te C o u r t . In event t h e a p p l i c a t i o n ' f W 'IciaVo o n p t to have' b e e n filed' "on or before 16t h O c t o b e r , '2 0 0 0 t h a t is w i t h i n f o u r t e e n days of th e decision. The a p p l i c a n t Ir-is a o s i - a e d no reason at al!l as tr w u y Jj© d e l a y e d in f i l i n g -vXie ";Ppi . it loo rur I g a v s to a p p e a l to warrant oonsia«. ’atio!* < os* the iyar a-v extension of tl.i- * 3 f. Xft it *m es t a b l i s h e d view of tlie courts in our jurisdiction tliat there mist be good and c o n v i n c i n g r e a s o n s to j u s t i f y the grant of e xtension of ti<rse. In the a b sence of good and c o n v i n c i n g r e a s o n s the a p p l i c a t i o n b y the appl i c a n t for extension of time -nust fail Aocc. singly it is r e j e c t e d w i t h costs. As the rejection, of t •;.•e a p p l i c a t i o n for e x t e n s i o n of tirae affects tba a c c o m a n y i u g 1 a pplication for leave, there is no need to address ti;o submis s i o n s on it. On the f o r e g o i n g reasons, the a p p l i c a t i o n for ext e n s i o n of tine is dis m i s s e d for want of aerit -*nd with costs. It is so ordered. 3 . ursKA o \ . j . Jcr. i- Court 5 Ruling delivered t H--rcn, 2002 before Krt Kato learned Advojat-s '.id tho s?spondont. si Ui. JU XPO 22/ 03/2002 THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 36 OF 1996 (From Employment Civil Cause No*37 °f 1993 at the RM's Court of D*Salaam,Kisutu - Ruhangisa-RM) TANESCO LTD » APPELLANT versus KASSIM J. R. KAMB.i‘Li .................... RESPONDENT J U D G M E N T . MftPIGtNO. J:~ An ex-parte judgment was entered by the Resident Magistrate's Court at Kisutu on 30/7/93 in favour of the plaintiff, who is now the respondent, upon the default of the defendant in appearance when the suit was called for hearing. On 29/9/93 the defendant* now the appellant, presented an application for setting aside the ex-parte decree to that court. It was rejected by the court on the ground that it was time-barred. On 1/10/93 the appellant took out a chamber summons seeking an extension of time to file an application for setting aside the ex-parte decree. In its ruling delivered on 2/12/93 the court granted the application. Efforts which were made by the respondent to have that decision upset by the High Court in a revisional proceeding were unsuccessful. The order of the High Court (Kyando,J) was pronounced on 27/9/9*+* It was not until 18/4/93 when the appellant filed the application to set aside the ex-parte decree. The application was resisted by the respondent, again on the ground that it was time-barred. On 29/9/96 the court sustained the objection and dismissed the application. The appellant has now come to this Court on appeal and it sets out several grounds for reversing the decision of the learned magistrate (Ruhangisa RM). In his ruling the magistrate has described the proceedings in this case as ones which have suffered from a delay syndrome. He is right, and it is sad to observe that the syndrome has not disappeared. - 2 - This appeal was instituted on 1/4/9° and the respondent has once again raised the point of limitation. His assertion is that the appellant obtained a copy of the ruling appealed against on 30/10/95. That is the day on which the fee thereof was paid and an exchequer receipt issued. Accordingly, the respondent contends that the prescribed period of limitation has expired, such period being *+5 days. In reply Mr. Nyange counsel for the appellant has deponed to the fact that when he paid the fee on 30/10/95 the copy of the ruling had not been prepared and that in actual fact the appellant received the document on 21/5/96. I accept Mr. Nyange’s word. But the problem is what appears at the foot of the certified copy of the ruling filed in this proceeding, which denotes that by 25/ 1/96 the copy of the ruling was available for collection. Section 19(2) and (3) of the Law of Limitation Act provides that in computing the period of limitation prescribed for an appeal, the period of time requisite for obtaining a copy of the decree or order appealed from, as well as the time requisite for obtaining a copy of the judgment on which it is founded, must be excluded. The expression '’time requisite” is not defined in the Act, but I take it to mean time properly and reasonably required in that respect. It follows that any period which need not have elapsed, if the appellant had taken proper and reasonable steps to obtain the document, should not be regarded as requisite. As Chitaley and Rao say in their commentaries on an identical provision of the Indian Limitation Act of 1908, in taking delivery of such document any delay of the party subsequent to the date on which it is ready is not time requisite for obtaining the same, and consequently the time between the date on which it is ready and the date on which it is actually taken delivery of by the party cannot be excluded. I must, therefore, sustain the respondent's objection that this appeal is barred by limitation, It is dismissed with costs, Delivered. Mr. Nyange for the Appellant D« P« MAfKi/UNU JUDGE W5/9-*