20091216 TZCA Dar es Salaam

_Ji(, ... . ·. I, -,, . . ·,i ' . I IN THE COURT OF APPiEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, l.A, MBAROUK, JllA And MASSATI, l.A:} CIVIL APPLICATION NO. 111 OF 2009 I : ROYAL INSURANCE TANZANIA LIMITED .•.......................... APPELLANT I . . VERSUS ! ' KIWENGWA STRAND HOTEL Lll\_1ITEDI ............................ RESPONDENT (Application for Extension 6f Time from the Decision of the High Court of Tanz~nia at Dar es Salaam} II <Bwana, J.} II dated the 25 th day of February, 2005 in I Civil Case No. 68 of 2005 -------------L-------- JUDGMENT OF ~HE COURT I,, 8 th December, & 6th January, 2010 MASSATI, l .A.: The background to this matter is that, in 2003, the Respondent I I filed Commercial Case No. 68 of 2003 in the Commercial Division of I the High Court at Dar es Salaam. In 25th February, 2005 the court entered judgment in its favour. lihe Applicant filed a Notice of I, . I'•·. Appeal, and an appeal was given Jumber 45 of 2005. That appeal was struck out on account of a defe~ive decree. The Applicant went ,, I !1 I 2 back to the High Court, applied and o8itained an exten~ion of time to I, i file a fresh Notice of Appeal. The ord;~r of the High Court is dated I 23 rd July, 2008, and the second Notioe of Appeal was filed on 30th ' II Ii July 2008. This was followed by the ~ling of Civil Appeal No. 96 of 1, th 2008 on 5 September, 2008. Howd~er the record nf appeal still i contained the same defective decree. In order to avert the inevitable ' 'I I . II fatality, the Applicant quickly filed Ci1il Application N~. 128 of 2008 seeking to "amend the record of apJeal by replacing the defective II 1 decree, dated 1 st March 2005, with !the proper decree dated 25 th I i February 2005." The court rejected the application on the ground I! I that it had no powers to grant the ord~rs sought. But the Court went I on to restate the law that where a record of appeal omits a core I document such as a copy of a decree) the only way td introduce it is I . not by filing a supplementary record, but by seeking leave of the . . I . Court to file it out of time if the period for lodging ,an aPpeal has expired. 11 I On the strength of that dicta thJ Applicant has filled the present Ir 1 ii application in which it is sought that: 1 1 I! I --·-·=== ' I • 3 11 ''the time within which/ to institute th~ appeal against the judgfent and dee~ of the Commercial, Dividion High Court of Tanzania, delivered at fl)ar es Salaam by i I II , I' Hon Justice Dr. S.J. s1wana dated 25r I February, 2005 in Combercial Case No. I!! ' I 68 of 2003 be extended.I" 1: t The application is supported 1:by the affidavit of WILBERT 1, I ., BASILIUS KAPINGA. Apart from para graphs 1 to 5 which give the 11 background of the application, the relsons in support: are contained in paragraphs 6 to 8, and paragraph 9 sums it all. What can be i gleaned from these paragraphs is tha~ after lodging th~ new notice of th I . appeal on 30 July, 2008, the Appli'cant quickly filJd a record of I th appeal on 5 September, 2008; but lthe deponent span discovered that he had omitted, inadvertentlyJ to include the valid decree Ii , , I instead complied the same defective decree, and that soon after so discovering, he filed Civil application No 128 of 2008 on the next 1 1 I working day, and that, this was well a'head of time. That, time whiled II I I ------ --· ------------ -~---~-- I 1: i 4 th away before that application was d!termined on 25 September I I 2009, hence the delay. So, the depon4nt is saying that the Applicant I I had all along been serious and diligent in pursuing the appeal. I On the basis of the above mterial, Prof. Jwbni Mwaikusa, II , learned counsel for the Applicant, subhiitted that, sine~ the Notice of th i I Appeal dated 30 July, 2008, was stil1:1 valid, the application was not I 1 I ! only properly made under Rule 8 of the Court of Appeal Rules 1979 ' ("the Rules''), but also sufficient rea)on has been de~onstrated for I . the grant of extension of time within ~hich to file an appeal provided I . under Rule 83(1) of the Rules. He ~ent on to submit that, if the /1 : application was refused, its effect wbuld be to deny access to the 11 i I parties to appeal, which would be u~fair. He therefore urged us to . I I allow the application. f it . I 1 The application was resisted thlrough a counten affidavit taken I 1 out by a Mr. Aloys Bahebe, In respon se to the proponent's affidavit's I paragraphs 6,7,8 and 9, Mr. Bahebe disputes them aII and contends 1 I i 5 that the Applicant has failed to f~rnish sufficient grounds for 11 extension of time. !! I 11 Ii ·1 Dr. Ringo Tenga, learned ~ounsel advocated for the II Respondent. Initially he had filed a Notiice of Preliminary Objection on :I I 23 rd November, 2009, but on the date ol!f hearing, the learned counsel . I applied to withdraw the preliminary objections and so: responded to the application on merit. He argued lgainst the application on two I main grounds. The first is that thej appeal was incompetent for containing a defective decree, and sb the Court could not extend time to file an appeal which was not tjere. The secondi point is that if I 1 1 • the appeal was there the Applicant did not disclose suifficient reasons I I for the ground of extension of time. [: f I:l .I Elaborating on his first point, Qr. Tenga submitted that since I . I I the Applicant discovered that the appeal was in~ompetent for containing a defective decree the whole record, including the Notice I . . of Appeal ought to go with the wind. [Although a Notice of Appeal is filed under Rule 76(1) and an appea1ll is instituted under Rule 83(1) ji r: /1 [i I 6 the two Rules are complementary, and any distinction between them I I is merely academic. The two rules mtµst be read together with Rule 1 I 1 89(1) which governs records of app~al. Under this rule, both the notice of appeal and a decree are / essential documents and the record is not saved if one of these dCDcuments is defective. He cited 1 1 I I FORTUNATUS MASHA v WILLitM SHIJA ANiD ANOTHER (1997) TLR 41, and ABDALLA RASHID ABDALLA vs SULUBU II I KIDOGO AMOUR & SAID ISSA SAiD Civil Appeal ~o. 94 of 2006, 1 ( unreported) for the proposition that ' once there is s1;.1ch defect, the appeal ceases to exist. It has to go back to the No,tice of Appeal. Besides, argued the learned counsel, flule 83(1) of th~ Rules was not 11 cited in the Notice of Motion. 11 i On the question of extension o~ time, Dr Tenga: submitted that II under Rule 8 of the Rules, it is neceksary for the Applicant to show I! sufficient reason. He submitted tha~ in the present case the only 11 causes disclosed in the affidavit are i~advertence of counsel, and the 1. purported prompt action. He submittJd that "inadvertence" was such II 1 a broad term, that it only begs the qu estion if left witHout clarification II i ' I f 7 I • as in the present case. In any case, co~nsel went on, Ci,vil Appeal No. i I 96 of 2004 was struck out for the samJ defect, and ina~vertence was 1 1 I i I I I also pleaded. Second, counsel for the Applicant checked the Ji i documents after filing the appeal, w~ich was not inadvertence but I . 11 I sheer negligence. Negligence of counsel was inexcusable for purposes of limitation, he argued; l(unbolden) IF,~ v SIMON i i I , I. MANYAKI Civil Application No. 13 of t987) (unreporte,d) especially if the omission was of a fundamental n~ture. As to pro~pt action and I 11 . I diligence Dr. Tenga argued that s~ich efforts should have been ' I undertaken before and not after the I event; which in' his view was I negligence. He therefore prayed thaf the applicatiod be dismissed I with costs. Ii . Professor Mwaikusa, made a bdef rejoinder. Fir~t, he said that I , the distinction between Rules 76 and r3 is not acaderf,ic but a result of the Court's own interpretation. se!ond, I the omissi6n . to cite Rule II [ , not fatal, because all the enabling ' 83(1) in the Notice of Motion was i : provisions were cited; and Rule 83(1) is not an enabling provision ' [! 'I I Third, MASHA vs SHDA, (supra) and the like Cases are valid ' I Ii i .. ' I 8 authorities for what they decided, butj/ they are relevant only if the 11 I! appeals were called on for hearing. what is before this Court, is not I! an appeal but an application for exte~sion of time to file an appeal - I based on a Notice of Appeal which is ,ill valid. Forth, if the previous appeal was struck out for some defeat, that should nbt be used to !I refuse the present application becausk that would be' punishing the Ir 1 Applicant twice for an error already puhished for by the appeal being II struck out. Last, on question of diligence, Professor Mwaikusa 11 Ii submitted that the Applicant was diligent, in the sense that he !I discoverd the defect and took remedia 1action before the Respondent 11 discovered and raised it. With those, ~e reiterated hiS prayer to the .I I Court to allow the application. j! It seems to us that there are th~ee issues that the Court has to II Ii resolve. The first is, the effect of no;p citation of Rule 83( 1) in the notice of motion. The second is, whJther the Notice 'of Appeal filed II II on 30/7/2008 is still valid so as to ground an applicatidn for extension 11 of time to file an appeal. The thir~ is, if so, whether there are 11 sufficient reasons to grant an extensidn of time. I! I 9 On the first issue, we think, thdt, not much ne~d be said Dr I: I Tenga, who raised it, did not pursue it seriously. ~e agree with '., 1 . I Professor Mwaikusa that, the notice of motion that I supports the I, , application before us has cited Rules ~' 45, 46(1) and :3(2)(b) of the Rules. We think, these are enabling pr~visions for any iapplication for 11 I extension of time. Failure to cite Rule 83(1) is not the~efore fatal. So !I I I . we think the application is properly be~ore us. 1 i I , [: The second issue is on the ground I that in the seJeral decisions, I 11 ; this court has ruled that once a reqord of appeal i~ found to be I . defective, the appeal is rendered defective, and ougJt to be struck I I I: I out. If it is struck out, the notice of .A!ppeal also goes ,with the wind. i, ! I Indeed, this is the logic behind MAS1A v SHIJA (su~ra) and similar , 1 I cases. I We think, two answers can be tupplied to that question. First, 11 I 11 in all those cases, the appeals were called on for h,aring, and the f, l11 I defects unearthed and their affects decided at the hearing of those 1: I appeals. It is the Court which struck Put the appeals rs incompetent I' i, 1: I 10 and so, were the respective notices '. of appeal. As such in those I appeals it holds to argue that the notides of appeal were no more. In the present case the Court has Iot yet declaretl the appeal rn/1 i . I I incompetent and so until then, the rnptice of appeal, in our view, is 1 still valid. / The second answer, is that the @resent applicatiJn is backed by the decision of this Court in its rulinJ in the previous/ application for amendment, when it said (p. 23)© / .i ! I I' I ' " ,J.. I ' ' • ,. I-" I • •••. . ••. • 11 ,e ,aw govermg app,tcadons of this nature is vJ.eJ/ settled Thk . I ; I applicant can only file' the omitted co)i document i.e the copy of decree, it is wishing to appeal ti-of not under Ru/ls I 104 and 18 and/or Rwle 92 ............ but I I with leave of the c9urt under Rule IB I ! . ............ This is becaJse that sixty day .I : I limitation period has l~i1g expired " I I I I I· ................ ,,........... "·•-•··.-• ,., ............. · · · · ~ - - - - - 4 - - - - - - - - - - 1 · · I I Ii I 11 On the basis of that decision th~re is no need to split hairs on 1 the distinction between Rule 76(1) /and Rule 83(1) of the Rules. Perhaps that discussion could be brolght in a more ~tting occasion. On the premises, it is our view that lo II long as the n~tice of Appeal , has not been struck out, and the rJcord of appeal that contains a 11 ' defective core document, is deemedi not to have been filed for the , I purposes of Rule 83(1) so the notice of appeal is still valid, and can I I found an application for extension of ~ime under Rule 8 of the Rules. i1 I Ii i The next and last issue is whether the application has disclosed sufficient reason to deserve an extenbion under Rule~- j Ii ,I Dr. Tenga, learned counsel,/ has strenuously opposed the application on the general ground /that no sufficieht reasons have I I been disclosed. He forwarded thrJe arguments. First, it was not l I sufficient for the Applicant to hid~ behind "inadvertence" without clarifying the particulars of that inLvertence. Sec~nd, the affidavit 'I I disclosed negligence on the part of 1!counsel, which in his view was in i I excusable, counsel referred us to the decision of THE ATTORNEY 'I I I Ii I 1: I ~ - ~ - 12 ' GENERAL v TWIGA PAPER PRODUCTS I LIMITED ! (Civil Ii , Application No. 128 of 2008 (Unreported) and IFM v SIMON ' MANYAKI (supra) Lastly, the learne~ counsel, submitted that taking I action after filing the defective recorq twice, was no sign of diligence, I but of being wise after the event. Afcording to the learned counsel, I diligence should have been demonstrated I before filing the record by - I checking whether all documents were correct. I I I ,, As shown above, Professor Mwaikusa's response . i II was that the strength of his case lay in the Applic~nt discovering the defect before 11 ' ' I any one else and taking prompt actibn to rectify it before the appeal 1: was called on for hearing. j I We shall start by saying th~t it is a fallacy to argue that diligence could only be shown befo~e instituting the record. We have I two reasons. First, under Rule 8 anl application for extension of time Ii . may be brought before or after thej expiration of the time limited for the doing of anything under the R~les. It can not be read into that I . Rule that "sufficient reason" must Ihave something to do with only I I I 13 I actions taken before to expiry of the time although! those would certainly weigh heavily in such considlration. But secdnd, if the law had demanded so, there would be no !heed for extensibn of time, as ' I ! I ji I every body would be diligent befor~ filing his actidn; and make provisions for extension of time (such/ as Rule 8) redindant. So we II I cannot accept that line of argument. 1·• 11 I The grounds of lack of diligence, and inadvertence of counsel, I 1 , I can, we think, conveniently be discufsed together. I~ must first be restated that in principle, the power tb grant extensio~I of time under !I I Rule 8 is discretionary. While it is ne~ther necessary, /nor possible to lay down any hard and fast rules, onlhow to exercise/that discretion, it cannot be gainsaid that in such bpplications the/ applicant must demonstrate material and consideration before the Court in order to Persuade it to exercise such powers lsee ATTORNEkv GENERAL v I ,' TWIGA PAPER PRODUCTS LIMITED (supra) In: that case, the matters that would be taken into accbunt were listed ias follows: I (i) length of the delay. .. 14 (ii) reasons of the delay 1 (ii) the degree of prejudice to the r~spondent if the application is Ii I' granted. i: 1 (iv) Chances of appeal succeeding i~f the application is granted. I Ii 1 But, as pointed out above, th~ list is not exhaustive. There I!, I 11 could be many other factors, that could arise from the facts of I each particular case. i! Ii Guided by the above principles~ we note that in this case the . I th decision sought to be impugned fas delivered o~ 25 February 2005. It was not disputed that tHle notice of appeal was filed in 1: time which subsequently led to th& filing of Civil Appeal No. 45 of .I j! I 2005. The appeal was struck out ~n 22 nd February, 2008. On 26th I: February, 2008 the Applicant wJnt back to the High Court to I I: obtain extension of time. It was g~~nted on 23 rd July, 2008 and on i th 30 July 2008 another notice of Jppeal was filed) that bred Civil II I. Appeal No. 96 of 2008 on 5th September, 2008 However before I I' the appeal was called on for hea~ing, the Applicaht discovered a I I I/ I 15 defect in the document. He sougit to move the Court to grant leave to him to amend the record df appeal in Civil ~pplication No. 1/ I 18, of 2008, which not only rejected the applic~tion, but also I. .I advised that such a core documen~ could be introdwced by way of Ii I extension of time to file a record of appeal, whose effect would be I I to institute the appeal, as none ha1 been instituted, in the eyes of I the law. To toe that advice, the ,applicant has filed the present I I I application. To us, this shows tHat ·the applicant was not only I i prudent, but also that each time he had reasons that prevented him from filling the appeal. In TRS KAMIZ ABDULLAH M.D I KERMALI vs THE REGISTRAR! OF BUILDINGS AND MISS I , HAWA BAYONA (1988) TLR. 199! (CA) this Court bbserved: I! Ii "Where delay in institutiJg appeal is caused by good reasons other th)n the time taKen in preparing the record of jppeal, a prudent party I to the proceedings may: safeguard its position by applying for extensio1 for the period I l ' I 16 prescribed for the doing o any act under ~u/e 1 8 of the Tanzania Court of~ppea/ Rules. " I' I !' Although the facts in that case, were not on all fours with those I I in the present one, the similarity is that in both ca~es, the reason I' I 1 for the delay, is caused by, than t~ ere the time tak~n in preparing I the record of appeal. The principle ithat can be extr~cted from that case is that it is prudent for a paJ who feels that he might delay, I! I for any reason, to institute an abpeal under Rul;e 83(1) of the Rules, to apply for extension of ti~e to do so uJer Rule 8, and I! this is what this Court has restatkd in its previoJs ruling in this I I I case. We are also of the view that in the absence of malafides, we : I are satisfied that the Applicant haJ diligently and Aersistently been l I in and out of the Court's corridor~ in search of juJice, particularly after discovering the defect hiJself and attemJting to cure it before any body else. I 1 It is for the foregoing reasons that we think i 1e I applicant has shown sufficient reason for the d~lay I in institutin the appeal. We I f: I 17 therefore allow the application an6 order that trle appeal be instituted within 14 days from the Jate of this rulinb. Costs shall jl I i I be in the cause. j I 1 11 Order accordingly. I I I '! th i I DATED at DAR ES SALAAM this 16 dar of December, 2009 f I Ii I ,r I I I i E.N. MUN1UO I JUSTICE OF APPEAL I II i I I I 11 M.S. MBA~OUK I JUSTICE OF ~PPEAL I II I Ii I 1, S.A. MASSATI I JUSTICE OF IAPPEAL I I I , I I I I .It I I! i 11 I I Certify that this is a true copy of th~ original. ~' (N~N. CHUSI) / DEPUliY REGISTRAR rl ' , I I I I I i