Court name
Court of Appeal of Tanzania

Dr Ally Shabhay vs Tanga Bohora Jamaat () [1997] TZCA 28 (18 November 1997);

Law report citations
1997 TLR 305 (TZCA)
Media neutral citation
[1997] TZCA 28

Samatta JA: G
This is a short application. Tanga Bohora Jamaat, the applicant organisation, applies under Rule 8 of the Tanzania Court of Appeal Rules 1979 (the Rules) as read together with Rule 87(2) of the said rules for extension of time within which to lodge in this Court's registry and to serve upon the H respondent, Dr Ally Shabhay, notice of cross-appeal. The application is opposed by the respondent.
The background to the application may, I think, be stated as follows. The respondent sued the applicant in the High Court for several reliefs. He was successful only partially. Aggrieved by that part of the decision on which he failed, he lodged an appeal against the same in this Court. Mr I Kalunga, the advocate who represented

A the applicant in the High Court and before this Court in this application, was served with the memorandum of appeal and the record of appeal on or about 14 July 1997. About four weeks later, the applicant organisation, which has its office in Tanga, instructed the learned advocate to lodge a cross-appeal. On 28 August 1997 the learned advocate filed in the registry of this Court the instant B application. Rule 87(2) of the Rules makes it mandatory for a respondent to an appeal who wishes to lodge a cross-appeal to lodge a notice of cross-appeal in the appropriate registry not more than thirty days after the service on him of the memorandum of appeal and record of appeal. Rule 8, however, confers on this Court the power, where sufficient reason is shown, to extend the time C limited by that sub-Rule. The basic question in this application is, therefore, whether such reason has been shown.
In its affidavit supporting the application, sworn by Mr Kalunga, only one reason is given for the delay D in complying with Rule 87(2): it is said that the applicant delayed in instructing its counsel to prefer a cross-appeal. Mr Kalunga urged me to take into account that it was not easy for his client to read the record of appeal and discover an error by the learned trial judge in it, and hold that the delay in lodging notice of cross-appeal was not too unreasonable. Mr Maira, the learned advocate for the E respondent, opposed the application. He submitted that no satisfactory explanation has been given for the delay. The learned advocate went on to urge me to dismiss the application.
F I have carefully considered the competing arguments and in the end I have reached the conclusion that no basis has been shown in this application why the extension of time sought should be granted. As rightly submitted by Mr Maira, in the affidavit sworn in support of the application no explanation whatsoever is given why it took the applicant so long to instruct Mr   G Kalunga to lodge a cross-appeal. While I am alive to the need of courts in this country satisfying consumers of justice that they (the courts) always remember that procedural rules are meant to facilitate and not defeat justice, I do not entertain any doubt that what Sir Jocelyn Simon P, said in the following passage in his judgment in Edwards v Edwards (1) at 151, is applicable to the H administration of justice in this country:
   `So far as procedural delays are concerned, Parliament has left a discretion in the courts to dispense with the time requirements in certain respects. That does not mean, however, that the rules are to be regarded as, so to speak, I antique timepieces of an ornamental value but no chronometric significance, so that lip service only need

   be paid to them. On the contrary, in my view the stipulations which Parliament has laid down or sanctioned as to A time are to be observed unless justice clearly indicates that they should be relaxed.'
I agree with Mr Maira that there is, in the instant application, no warrant for relaxation in the applicant's favour the stipulation as to time laid down in Rule 87(2) of the Rules. Those who come B to courts of law must not show unnecessary delay in doing so; they must show great diligence.
The application stands dismissed with costs.

D