THE COURT OF APPEAL
OF TANZANIA
AT
DAR ES SALAAM
In
the Matter of Intended Appeal
CIVIL APPLICATION NO. 107 OF 2003
BETWEEN
CONSOLIDATED
HOLDING CORP … APPLICANT
AND
FAUZIA
S. NASSOR … RESPONDENT
(Application
for Extension of Time within which to Apply for Leave to Appeal and
Application for Leave to Appeal from Decision of the High Court of
Tanzania at Dar es Salaam)
(Ihema,
J.)
dated
the 7th
day of October , 2003
in
Misc.
Civil Appl No. 296 of 1996
…….
RULING
RAMADHANI, J.A.:
The applicant,
Consolidated Holding Corporation, represented by Mrs. G. N. Kato,
learned advocate, has two applications: One, application for the
extension of time within which to apply for leave to appeal. Two,
application for leave to appeal to this Court after the High Court
(IHEMA, J.), had refused on 7th
October, 2003, to grant leave. Mrs. Kato, instead of making a fresh
application for leave to appeal in this Court as provided in Rules 43
(b) and 44, she on 20th
October, 2003, filed a notice of appeal against that refusal. When
she realized her error, Mrs. Kato filed this notice of motion on 17th
November, 2003, that is, beyond the 14 days prescribed by Rule 43
(b). Before me, Mrs. Kato reiterated what she had said in her
affidavit: “the delay in filling the notice of motion was not
deliberate”. She prayed to be excused.
On the other hand,
respondent, Fauzia S. Nassor, had the services of Mr. J. Ndyanabo,
learned counsel, who submitted that the application is devoid of any
merit. Citing Calico
Textiles Industrries v.Pyarali Esmail Premji
[1983] TLR 288 and Umoja
Garage v. NBC
[1997] TLR 109, he echoed the all time holding that an error of an
advocate is not sufficient cause for extending time, so, the
application be dismissed with costs.
Having heard Mrs. Kato
making her submissions, I have no doubt in my mind that she is
sincere that the error was not deliberate. However, this matter has
been settled from the time of the East African Court of Appeal and,
as pointed out by Mr. Ndyanabo, this Court said in Calico
Textiles Industries,
which, incidentally, is not on page 288 as Mr. Ndyanabo’s list
of authority cited, but on page 28:
Failure of a party's
advocate to check the law is not sufficient ground for allowing an
appeal out of time.
In Umoja
Garage
this Court said
(i) It was clear that
the error had been committed by the applicant's counsel and the
Registrar could not be held blameworthy;
(ii) In the
circumstances no sufficient cause had been made out for enlarging the
time as prayed.
Therefore, the
enlargement of time within which to apply for leave to appeal is
refused. In our opinion it is unnecessary to consider the second
application of leave to appeal. The application is dismissed with
costs.
DATED at DAR ES SALAAM
this …. day of October, 2004.
A.
S. L. RAMADHANI
JUSTICE OF APPEAL