20061019 TZCA Dar es Salaam

.,~ • i n ,,' - !'.•·· IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 170 OF 2005 NOVATI NGIRWA t/a QUALITY SIGNWRITTER GENERAL LTD . ......................... ; ................................ APPLICANT VERSUS TANZANIA HARBOURS AUTHORITY ....................... RESPONDENT {Application for extension of time to serve Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ihema, J.) dated the 2 nd day of May, 2005 in Misc. Civil Application No. 115 of 2004 RULING 21 September & 19 October 2006 MUNUO, J.A.: The applicant, Mr. Novati Ngirwa, t/a Quality Signwriters General Ltd., through the services of Mr. Kashumbugu, learned advocate, is seeking extension of time to serve a Notice of Appeal for an intended appeal from the decision in Miscellaneous Civil Application No. 115 of 2004. The reason for not serving the Respondent within time is stated in ground three of the Notice of Motion, which is, that a similar application was erroneously filed in the High Court under Section 11 of the Appellate Jurisdiction Act, 1979 whereafter it was withdrawn upon realizing that it had been filed in the wrong court. Subsequently the applicant filed the present application under Rule 8 of the Court of Appeal Rules, 1979. Adopting affidavits deponed to by Mr. Sebastian Ndamugoba and Alexander Katunzi, in support of the application, counsel for the applicant contended that the delay to serve the respondent was caused a Registry Assistant, one Mrs. Byemelwa, at the Registry of the High Court. She allegedly misplaced the Notice of Appeal which was given to her for stamping so that it could be served on the respondent, but she lost or misplaced it. Hence the application for extension of time to serve the Notice of Appeal on the respondent. Mr. Msuya, learned advocate, represented the Respondent. Resisting the application for extens!on of time, counsel for the respondent contended that the applicant inordinately delayed the application for 6 months and five days after withdrawing the application which was erroneously filed in the High Court. As no explanation for such inordinate delay had been given by the applicant, counsel for the respondent urged the Court to dismiss the present application for want of sufficient ground to extend time. Counsel for the respondent cited the case of Calico Textile Industries Ltd. versus Pyaraliesmail Premji (1983) TLR 28 wherein the Court held that:- Failure of a party's advocate to check the law is not sufficient ground for allowing an appeal out of time. Counsel for the respondent further cited the case of Alhaji Abdalah Talib versus Eshakwe Ndoto Kimani Mushi (1990) TLR 108 in which the Court held, among other things that; The delay in lodging the appeal caused by the appellant's absence from the country at one time and also his advocate's 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 (to extend time) under Rule 8 of the Court Rules, 1979. The application for extension of time was dismissed. Urging the Court to find that no sufficient reason has been adduced by the applicant to justify extension of time to serve the Notice of Appeal on the respondent, counsel for the respondent prayed that the application be dismissed with costs because the Registry Assistant who allegedly lost the copy of Notice of Appeal to be served on the respondent did not depone an affidavit to prove the same. In actual fact the Notice of Motion comprises three baseless grounds. One, the fact that a copy of the letter to the Registrar requesting copies of proceedings, judgement and decree is not a reason for delaying to serve the Notice of Appeal on the respondent, and yet, that is precisely what ground 1 of the Notice of Motion 7 states. The second ground, too, lacks merit because it simply states that the reasons for delaying to serve the respondent are reflected in the accompanying affidavits. Such reasons ought to have been stated in the Notice of Motion. The third ground in the Notice of Motion is equally vague because it states that the applicant wrongly filed a similar application in the High Court, withdrew it and thence filed the present application six months later. No affidavit was deponed to by Mrs. Byemelwa, the Registry Assistant, who misplaced or lost the Notice of Appeal which was supposed to be duly rubber stamped and then served on the respondent. If the said Registry Assistant misplaced the said Notice of Appeal inadvertedly in the course of her duties, she would have deponed an affidavit to explain how or why the Notice of Appeal got lost if she had diligently and honestly being performing her duties. That she refrained from filing an affidavit to prove that the alleged Notice of Appeal was received, misplaced or lost in the Registry for reasons her affidavit would reflect, renders the assertion incredible. 11 ., Like in the two cases cited supra, the applicant has not, on the balance of probabilities, adduced sufficient reason for extending time. The delay in serving the respondent, appears to have been caused by inertia and lack of diligence because no substantive reason for delay is reflected in the Notice of Motion or in the affidavits deponed in support of the application to justify extension of time. I accordingly dismis~ the application with costs. DATED at DAR ES SALAAM this 19th day of October, 2006. E.N.MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. \