leonsi silayo ngalai vs hon justine alfred salakana and another 1997 tzca 50 28 october 1997

I ” THE CC-UliT 0 ? AsSEAX OP iju'TZAITZA AT DA3 S3 SAIiAAK C iy il AP?ijTCATION NO. 4-1 OS' 1997 In the L a tte r o f an Intended Appeal..;.- 3ET7EEST LEONSI 5II-AY0 ITC-ALAI ......... ...............APPLICANT AND 1. HON. JUSTINE ALF1TED SAuAEANA. . 1 3T RETDGNPETT? 2. THE HON. ATTORNEY GENERAL.........2ND ISSPONDETI' (A p p lica tion f o r E xtension o f Siyiie "feo se rv s N otice o f Appeal t o the respondent from, the E scisioii o f the High Court o f Tanzania a t llc3hi) - (Munuo, J.) dated the 8th day of April, 1 '97 in I--isc. C iv il Cause No. 5 o f 1S';5 E U i l N 5 gxSAlTGA. J .A.: This is an application for extension of time to serve a cop;y of the notice of appeal on the fir3t respondent, The Hon. Justine Alfred Salakana, K.P., and to instigate the appeal ir_ ter-s of“rale 83 of the Court of Appear Rules. The application is brought by a notice of inotio:: duiy supported by the affidavit of the applicant, i'r. .'jeonsD. Silayo Ngal-i, who appeared and argued the matter in person before ::o, l<h3 first respondent v/as represented 07 Lr. C.J. Manana, learned advocate, while Kr. Kaiaba, leainei. :>aior state Attoney advocated for the second respondent, ihe At boiney-Qeneral. It is commorit ground that the judgement which it is intended to appeal against was delivered on 8.4.97 and bhc notice of intention to appeal was given in tine on 10.4.97. However, a copy cf the notice of appeal was not gerved. on the respondents within seven days of the notice as required by rule 77(1) of the Court of Appeal Rales. To be exact, the second respondent was served with such notice; out of tine on 30.5.97, while the firsu respondent "was not “served "at aHLr ‘ - — ~ Thus on the first leg of the application, the applicant seeks an extension of tiue dur?.:ig which to serve the first respondent with a copy of the notice of appeal, and his explanation was tbat the administration of the High Court at Moshi was wholly responsible for the delay or, omission of the service on the respondents. That explanation is c.ouched in paragraphs 7, 8 and 9 of his affidavit cLated 21.7.97 which for purposes of clarity are set out in extenso herein below: "7 . Thai? I, being a layiaan not coi25ersant_ with- the lav/ and practice of the Courts, and in tota.L ignorance of the provision of H\ile 77(1 ) of the Court of -Appeal Piules 197S 1 requested the administration of the H^.gh Coux’t at Mosni to serve the copy of the Notice of {Appeal to the liespon&enta. Such a request was accepted; That the c o p i e s of t h e HotJ.ce o Appeal were served upon t h e Respondents h y t h e " o s h i B . x ^ Court.Messenger one Mrs. 3 c o x a .’ M w a n a i o a u l a t h r o u g h a u e s p 'J'o C h hook on the 30t h d a y of -ay, ^ 9 ■» That the State Attorney a c c e p t e d the 9. c o p y of t h e n o t i c e b u t ir. Haruna, - A d v o c a tj.e -p^n-p --he for <.ne P* r s t ii.3£5poiident i-xt>o ___--- a. -■ n--i •i-'he .'yrovind x'efused t o accept ° that the First Impendent Justxne Alfred Sals&ana hai never ocen xn h is;office since the delivery ox -the! j u d g m e n t ; " .j i i- +-■■■- e d a c o u n t e r - a f f i d a v i t , and The first respondenc f — u a at the h e aring of t h e application l e a d e d counsel for h o t h respondents opposed the application on the gro cause - ~ extension of time sought. I’r. Kano_a h?-^ ^ & ^ ground of complaint. His office v/ao served vrxui . co ■> of the notice-of appeal out of tiae on :>0«5»95» He —— — ----- ---------- ----------- ...wptMice w a s a c c e p c e a ____________ subm itted in. e f f e c t that w hile « .e 1' ,rt/-riarize "til© only out of c o u r t e s y , that dxa noo x - . >,•=<-. -iG >-al o^ligaoion ■ft d id n ot r e lie v e the a r c a n e o, h - a • v n - h i n the tOne prescribed Toy ■to s e r v e the responder v-i.hi-i - . -•■•■'s, w i t h t h e xeave rule 770 V o r out oi t h e p..resc_ 7 of the Court. - ’ a r-i"Charged neither obligation, S in c e the applicant r.ad ux.chax., - - to - h e a -o -o lic a tio n , h u t axso _.a. oNjeC Ced t o uliV * urged me to 3 trike out the notice of appeal for the applicant's failure to tal:e the essential step in the appeal i.e. for failing to serve hi?n in law with a copj* of the notice of appeal. The gravamen of the applicant's explanation as can "be gleaned fron paragraphs 7, 8 and 5 of his affidavit reproduced above is that the delay or omission to serve the respondents with p. copy of the notice of appeal was caused by_the administration-^of the-High Court at lioshi - v;ho had accepted hie request to serve copioa of tha~j notice on the respondents. This is obviously hearsay. The applicant did not require anyone fro;a the adiv-inistr-vjic-'i of the High Court at Uoelii to file affidavit in support of his assertion that the administration there had accepted the responsibility to serve the respondents. Neither was Ilrs. Ccola Mwanaaaula, the alleged L'.oshi High Court messenger mentioned in paragraph 8 of the affidavit, required to file an affidavit to confirm that she is the person who belatedly served the second respondent on 30.5.97 and if so or. whose instructions, nor was the aispatch bool.- alle^-cediy used. ior,the TrarPose. .exhibited__ in these proceedings for scrutiny. ’.Then at the hearing the applicant was confronted with this unsatisfactory .v;ats of affair;:., he applied for an adjoumment and for Isave to adducc further evidence through additional cr supplementary ...ifidavit or affidavit: in order to renedy the situation. 'jJhis, however. was objected to very strongly by counsel for both respondents. I'sustained the objection largely because the type, of further evidence which the applicant is >• seeking to adduce was available at the time of compiling and prefering this application, and he has given no reasons why he did not adduce it then. should make sure that as far as possible they marshall all the evidence they need before the matter comas up for hearing. After- the hearing has started I think the matter. _ should not be adjourned simply to enable a party to look for evidence or further evidence in support of his case; in my opinion to do so would tend to underline efficient administration of justice. i As I said before, the applicant's assertion that the administration of the High Court at Foshi had accepted his request to serve the respondents v/ith copies of the notice of appeal is hearsay. As such the assertion was iriadmissible. .The net result, therefore is that the applicant has not explained adequately or at all the failure to serve copies of the notice of appeal on the respondents The applicant's claim in paragraph 7 of his affidavit that he is a layman not conversant with the law and practice of the courts, and totally ignorant of the provisions of rule 77(1) of the Court of Appeal 3ules is completely false. .The first respondent appended to his counte ^affidavit a copy of the Ruling by this Court ln — -le Rural c°-0Perative Society Ltd. v. The Dirt.Ptn. of_Public Prosecutions AR Civ. Application.No, 8-of 1992 (unreported) which amply demonstrates this view.’ That was a matter or case in which this very applicant, then chairman of and representing the Oiele Mral; Coloperative Society Ltd., had applied for an order to strike out the notice of appe.al for failure by th-3 appellant Director of Public Prosecutions to serve a cop;- of the notice of appeal on the respondent, th e - t ^ g jfe-V^o-operative"" Society. Conceding the emission, the representative of the Director of Public Prosecutions sought for an extension of time to' serve a copy of the notice on the said Co-operative Society. According to the Huling, among the responses to that application v;aq this:. . "I-r. Ngalai asked the Court to reject the application for extension of time and prayed that the notice — -- 0f appeal struck out -for failure _ by the respondent (The* Director of Public Prosecutions) to conply with the provisions of rule 7 7 (1 ) 0f the ______ _ Go^rt Qf Appeal Rules. ! -i— ___________________ ® ” Pasaase 3h0WB that ^ applicant is conversant „itb provisions of nao 77(1) of the If h3 was ahle to invoke the rule in his favour, he cannot na, Plead ignorance of it when it is invoked „ lim. In that sane Ruling the Court went on to reproduce the provisions of rule 7 7 (1 ) as follows:- • s- • "77-(1) An intended appellant shall, before . or within seven days after lodging a notice of appeal, serve copies of it oh all persons who seeio. to hiii - .. directly affected by the appeal; but the Court may on an ex-parte applica­ tion direct that service need not be. -effectcd on"any- person 'who -took no — part in the proceedings in th3 High Court.” That provision further made it abundantly clear to the applicant that the obligation to 3erve the respondents « with copies of the notice of appeal v/as squarely on him, and on no one el.ee. Since he was well aware of this, then even if, for the mere salce of argument, the applicant had asked the administration of the High Court at Moshi to serve the respondents, as he- claims, that'could riot, in my opinion, have relieved tmn of his legal obligation to ensure that the service on the respondents was in fact -hv. n ~ -h i I'I o ■ - ■ p a /'i -T-i o r ! . ~T ■ m t. a h w a c _ ' .... ■- ....... ■' m\ 1 ' I-... that I am merely assuming that the applicant had asked the High Court administration to 3erve the respondents, because I have already held that there v/as no cogent evidence to support that assertion by the applicant. For the reasons set out above, therefore, the application for enlargement ox" time to serve the first respondent with a copy ox the notice of. appeal must fail. / ‘J 8 - I now turn to the second leg of the application seeking the extension of time to lodge the record of appeal. The application was duly supported "by the applicant's affidavit dated 25.7.97. As in the pre-vi^is case the applj.cation was strongly opposed by counsel for bqth respondents on the ground that no sufficient cause it shown for granting the extension. t ’ As stated earlier the hotice of appeal was filed on 10.1.97. In his affidavit the applicant stated, and he was not contradicted, that on 5.5.97 he applied to the Registrar for copies of the proceedings and the same were supplied in two instalments, the last instalment having been supplied on 22.7.97. It is apparent that on the basis of that information the limitation period started oo run on 22.7.97 when the last instalment was supplied, and in terms of rule 83 of the Court of Appeal Rules the appeal ought to have been instituted on or before 2 2 ,9.37. - rlowever, the .appliomt filed this application on-25.7rS7^-- Obviously that was premature and misconceived; he should have spent his time processing the record of appeal rather Jan ^ nation, » •■ Be that as it nay, when the application came before n\e on 2 1 .10.97 the matter was ripe and mature, and properly before no because, as shown above, the limitation period had run out on 22.9.37. Since the appeal was not instituted within 60 days of the noticc of appeal, it was necessary for the applicant to roly on the exception to sub-rale (1 ) of rule 83 which is to the effect that in computing the 60 days, the tiiae taken to obtain the copy of proceedings from the Registrar shall oe excluded. However, in order to rely on that exception it was further necessary for the applicant to show that he had senb to the respondent copies of his letter to tne Itegistrar 'asking for a copy of the proceedings. , As I 3aid before, the applicant has shown that he did write to the Registrar asking for a copy of the proceedings. Proa a copy of that letter it also appears that copies of it „-ware- addro~s3 cd; to -both -respondents. Ho^vervthe “appllij£lnt— ir. his affidavit does not msJ.ce any suggestion that the copies of this letter were sent to the respondents. Once a^'ain the applicant sought to salvage the situation by seeking an extension of time to serve the respondents with copies of his letter to the Registrar, but for reasons set out in the first leg of this application I declined to grant i~. Thus I uphold the submissions by counsel for both respondents that extension of time to institute the appeal cculd not -be granted because an essentiai"Condition for it~~ had not been satisfied. X now turn to Ur. li-amba's contention that the n n t i r? __9wgh 1r 1 0 Tao nt m i i ou'bi .A bt ° suonitted by the learned counsel the notice of appeal was served on him belatedly, and todate there has been no application to servo him out ox tiiae. I entirely agree that the belated service effected on him not pursuant to ar.y Court order was no sexvice in law. And since up to the date of hearing there had been no application to acrvc the notice on him. out a±' time, then the applicant was clearly in breach of the requirement under rule 7 7 (1 ) of the Rules. He had failed to take fan es-qential step\in the appeal which under role 82 of the Rules would justify striking out the notice of appeal, . . - My refusal to grant the applicant's two applications > for the extension of time meant two things: First, the applicant likewise in breach of rule 7 7 (1 ), had failed(to serve the first respondent with a copy of the notice of appeal, which again wovjld justify striking out the notice of appeal under rule 82 for failing to take an essential step in the appeal. Secondly it meant that, under rule 04 of the Rules the applicant is deemed to have withdrawn his notice of appeal for failure to institute the appeal within 60 days of the ijotice of appeal v/hich also warrants I .• striking out the notice of appeal. i: i In response to all this the applicant reiterated his plea of ignorance of the law and court procedures and insisted on his being granted an adjournment to do what '|i he had omitted to do, but for the reasons stated earlier I refused the adjournment, 'lI In the x-esult, therefore, the application fails. |The ! extension of tine sought to serve the first respondent with a copy of the notice of appeal and to institute the I. appeal is refused, and for the reasons I have also endeavoured to give the applicant's notice of appeal is struck out. The applicant is' to bear the costs of this I . -~ < application. ( \ :| : DAjCSS-tit^DAR ES :SALAAM this' 2.8th October, 1S9 [• * . - r-«r. .."« .% f rvv I .r > i?.. .>•< ' • i ' i i l ' y .>1 / ,/ ft. H. K I S A N G A ^ Q ‘.X . V JfCTICE OF APPEAL ■' i I csrtify that t M a is a true copy of thevpriginal