This is an application for leave to lodge the memorandum of I
A appeal out of time, and it is a second time that the matter has come before me. It came before me first on 20 December 1996, but it could not proceed to hearing then because a preliminary objection was taken on the ground, inter alia, that the application was not initiated by Notice of Motion as required by Rule 45 of the Court B of Appeal Rules and Form A of the First Schedule thereto. I heard counsel for both sides and in my ruling dated 30 December 1996 I overruled the preliminary objection and granted an application by the applicant's counsel to amend the application in the title to include the words `Notice of Motion'. C
A reference from my ruling was preferred to the full Court on a number of grounds, one of the grounds not raised before me being that the application was invalid because it was not signed by or on behalf of the applicant. In its ruling dated 24 January 1997 the full Court dismissed the reference; and on the question of the application not being signed by or on behalf of the applicant the Court said: D
`... In our view it is such an irregularity that could in the interest of justice be regularised by the applicant being granted leave to sign the notice.' E
When the matter came before me this time ie on 6 February 1997 it could not proceed to hearing either. Mr C Tenga for Dr Ringo Tenga, appearing for the applicant, informed me that he has not been able to file a supplementary record F incorporating the two amendments granted by the full Court and by myself as shown above. He attributed such failure to some problems in his office connected with interruptions or failure of electric power. He therefore prayed for an adjournment during which to file a supplementary record incorporating the said amendments. G
Mr Muccadam, learned counsel appearing for the fourth respondent, opposed the application, but I now realize that through inadvertence I did not ask Mr Makungu, the learned State Attorney, if he wished to be heard on this point. Mr Muccadam H opposed the application mainly on the grounds that the applicant had plenty of time to file a supplementary record but he did nothing and that the court orders granting the amendments of the record have now lapsed.
Admittedly when the full Court and myself granted the applicant's counsel leave to amend the application, no period of time was specified within which to effect the amendments. However, I
under Rule 47(2) of the Court of Appeal Rules the amended version of the A application had to be lodged in Court within 48 hours of granting the leave. That sub-rule says:
`(2) Where the Court gives leave for the amendment of any document whether on formal or informal application, the amendment shall be made or an amended version of the B document be lodged within such time as the Court when giving leave may specify and if no time is so specified then within forty-eight hours of the giving of leave and on failure to comply with the requirement of this sub-rule, the leave so given shall cease to have effect.' C
According to the sub-rule, the amended version of this application should have been lodged within forty-eight hours of the ruling of the Full Court on 24 January 1997 which granted leave to have the application signed by or on behalf of the D applicant, and which endorsed the part of my own ruling granting leave to amend the title of the application to include the words `Notice of Motion'. The applicant, however, did not comply with the requirement, with the result that the leave which was granted to effect the two amendments has now ceased to have effect ie it has lapsed. E
With such lapse, therefore, it becomes fairly apparent that the present application for an adjournment during which to file an amended application is grossly misconceived. Because the filing of an amended application is predicted upon the leave granted by the Court to effect the amendments in question. But once such F leave of the Court has ceased to have effect, as in this case, there can no longer be any basis for filing an amended version of the application as there is nothing to authorise such amendments. In other words it would be idle for me to grant an adjournment to the applicant to file an amended application when there is no authority to effect the amendments concerned in the first place. G
As stated earlier, Mr Tenga intimated that the failure to file the amended version of the application from 24 January 1997 to 6 February 1997 ie a total of fourteen days, was caused by problems in his office connected with interruptions or failure of electric power. It is not intended to go into the merits of this allegation, but if the learned counsel thought that he has sufficient reason for failing to file the amended H application within the prescribed time, it was open to him in terms of Rules 8 and 45 of the Court of Appeal Rules to make a formal application, duly supported by affidavit, for extension of time to file an amended application. This, however, he I
A did not do. Instead, as already demonstrated, he asked for adjournment to file an amended version of the application when the authority to effect the amendments in question had ceased to exist.
I am therefore satisfied that the application for adjournment is untenable and is accordingly refused with costs.
B The question that now follows is this: After refusing the application for adjournment, what happens to the application itself which is still before me? From the ruling of the full court and that of my own, it seems clear that the application is defective but that it could be cured by effecting the amendments for which leave was duly granted. In other words the application could be maintained and thus C proceed to hearing only if it is amended along the lines for which leave was duly granted. Without those amendments the Court could not proceed to hear it. Yet, for the whole period between 24 January 1997 to 6 February 1997 ie the day the D application came on for hearing, the applicant did not wish to avail himself of the opportunity afforded or granted to him by the Court to effect the appropriate amendments to the application. Nor did he apply for any extension of time during which to effect such amendments if at all he had sufficient reasons which prevented him from effecting those amendments within the prescribed time. Thus E the situation is one where the Court has invited the applicant to cure a defective application to make it possible for the application to proceed to hearing but the applicant ignores or declines to do so. To my mind it seems plain that the applicant has no intention of pursuing the application seriously. In the circumstances I am constrained to hold, as I do, that the only reasonable course open to me now is to strike out the application as being unmaintenable in law. It is ordered accordingly. F
The respondents will have their costs. However, since the application was in effect disposed of on the basis of the submissions made during the preliminary G objection, the costs recovered in respect of the preliminary objection shall suffice also to cover the application itself. That is to say, no separate costs may be recovered in respect of the application because no further submissions were made after the hearing of the preliminary objection. H
1997 TLR p57