Court name
Court of Appeal of Tanzania

Inspector Sadiki & Others vs Gerald Nkya () [1997] TZCA 26 (27 October 1997);

Law report citations
1997 TLR 290 (TZCA)
Media neutral citation
[1997] TZCA 26

Ramadhani JA:
The respondent, Gerald Nkya, successfully sued the three applicants for malicious prosecution in the High Court of Tanzania at Arusha. The judgment was delivered on 26 July 1996 and on 1 August 1996 the applicants filed a notice of appeal and wrote a letter requesting copies of the proceedings. H The respondent was neither served with a copy of the notice of appeal nor with a copy of the said letter. Hence, this application to extend time within which to serve the respondent with both of those copies.
I The applicants were represented by Mr Songoro, Learned Senior

State Attorney. He reiterated the contents of the affidavits of Mr Mlambo, Learned State Attorney A Arusha and Mariam Issa Pangani, the personal secretary to the Principal State Attorney, Arusha. It has been explained by the applicants that the notice of appeal and the letter requesting record of proceedings indicated that copies to be served on the respondent. However, because the law B secretary had gone on maternity leave, Mariam Pangani filled the vacancy, but as she was new to the job, she sent the originals and all the copies to the High Court. No copy was sent to the respondent, Mariam Pangani herself, said so in her affidavit. The Attorney-General's Chambers, Arusha became aware of this omission on 3 October 1996 when the office received a letter from C the respondent claiming the execution of the decree.
The respondent, on the other hand, in his counter-affidavit, said that on 19 September 1996, that is forty-nine days after the notice of appeal was filed, he presented to the Attorney-General's Chambers, Arusha, copies of the proceedings, judgment and decree of the case to alert them that D he was taking steps to execute the award. On 30 September, he sent to the Treasury his claim for Shs 29,426,250/= by registered mail with a copy to the applicants. He went on to say that there was some further correspondence with the Treasury and that on 6 November 1996 he sent the E details required by the Treasury copied to the Attorney-General's Chambers, Dar es Salaam and Arusha. On 18 November the respondent went to the Attorney-General's Chambers, Arusha for some other business when a copy of notice of motion for this application was presented to him. He found out that the application had been filed on 13 November. F
Mr Songoro maintained that it was on 3 October 1996 and not earlier, that the Attorney-General's Chambers, Arusha became aware that the respondent had not been served. What the learned Senior State Attorney was doing was refuting the suggestion of the respondent that the G Attorney-General's Chambers, Arusha ought to have been alerted as far back as 19 September when the respondent delivered to them copies of the proceedings, judgment and decree. There are two matters here: First, Mr Songoro, as a very senior legal officer, ought to have known better that H the proper way to contradict the contents of the counter-affidavit of the respondent was not by making statements from the bar but was by filing a reply to the counter-affidavit. That the Attorney-General's Chambers has not done. Second, the affidavit of Mr Mlambo filed in support of the application, states in para 13 that upon receipt of the copy of the letter of the respondent claiming the decretal amount on 3 October I

A 1996, they realised that the respondent had not received a copy of the notice of appeal. But it is curious that the receipt of the copy of that letter signalled to the applicants only one thing; that was that the respondent had not received his copy of the notice of appeal. Someone in the Chambers should have remembered that filing a notice of appeal does not automatically stay execution. So, the respondent could have received his copies but nevertheless, he could have decided to go B ahead with execution. The applicants should have been prompted to another reaction; to file an application for a stay of execution.
C But what is even more baffling, the reaction of the Attorney-General's Chambers, Arusha came after the expiry of forty days from 3 October, when they realised the omission, to 13 November, when they filed this application. Mr Songoro told me that the Chambers, Arusha was trying to find out what had happened. However, the learned Senior State Attorney failed to say whether it was D necessary to use forty days to do just that.
In Transport Equipment Ltd v D P Valambhia (1), this Court refused to extend time within which to serve the respondent with a copy of the notice of appeal. Admittedly, the application in that E reference was made six months after the omission became known. Here the application has been made after one month and ten days. But in that case the applicant was very quick to serve a copy of the notice of appeal to the respondent the day following the realisation of the omission. So, when F he filed that application he had already made an attempt to serve the respondent. Despite that we were not persuaded to extend time. In that reference, just as in this application, the reason advanced for seeking the enlargement of time was the error of a law clerk in the chambers of the G learned advocate for the applicant. We found that not to constitute `sufficient reason' under Rule 8.
Just for purposes of completeness, in Daphne Parry v Murray Alexander Carson (2), the applicant was late for only five days when he applied for extension of time, but the Court of Appeal for East H Africa refused to do so and despite the fact that they thought that the appeal had merit.
I cannot distinguish this application from the reference in Transport Equipment Ltd. There is no sufficient reason advanced to persuade me to exercise the powers under Rule 8. I dismiss the I application with costs. It is so ordered.