IN THE COURT OF
APPEAL OF TANZANIA

AT
DAR ES SALAAM

CIVIL
APPLICATION NO. 5 OF 2005

BETWEEN

GIBB
EASTERN ARICA LTD………………………..……APPLICANT

VERSUS

SYSCON
BUILDERS LTD. AND TWO OTHERS…RESPONDENTS

(Application
for Extension of Time to serve and to Ammend Notice of Appeal of the
High Court of Tanzania at Dar es Salaam (Comm. Div.)

(Kalegeya,
J.)

dated
the 1^st
day of October, 2004

in

Comm. Case No. 84 of 2003

------------------------------

RULING OF THE COURT

=================

NSEKELA,
J. A.

I
have before me a notice of motion expressed to be brought under rules
8 and 104 of the Tanzania Court of Appeal Rules, 1979 for orders that
–

1. This Honourable
   Court be pleased to extend the time within which to serve the Notice
   of Appeal on the respondents out of time.

2. This Honourable
   Court be pleased to allow the applicant to amend the Notice of
   Appeal.

The notice of motion is
supported by two affidavits, sworn by Peter Claver Bakilana, learned
advocate and the second one sworn by Remigia Nyebwaki, a Secretary of
Haki Law Chambers.

The
affidavit evidence before the Court shows that judgment and decree
which is sought to be appealed against was delivered on the 1.10.2004
and the notice of appeal was lodged on the 13.10.2004. For reasons
which will become apparent later or in the course of this Ruling, the
notice of appeal was not served upon the respondent within seven days
as prescribed under Rule 77 (1) of the Court Rules, hence this
application for enlargement of time to serve the notice of appeal
upon the respondent out of time. Perhaps at this juncture, I should
reproduce paragraphs 2, 3 and 4 of the affidavit in support sworn by
Mr. Bakilana. It provides –

“2. That
judgment in the High Court Commercial Division case No. 84 of 2003
was delivered on 1^st
day of October, 2004 and the applicant / 2^nd
defendant lost the case.

3. That
   the applicant / 2^nd
   defendant expressed their intention to appeal to the Court of Appeal
   against the judgment of the High Court and therefore I prepared the
   Notice of Appeal which on day of October, 2004, I instructed Miss
   Remigia Nyebwaki the office secretary to file it in the High Court
   Commercial Division.

4. That
   I never communicated again to our secretary about the Notice of
   Appeal until on 16^th
   day of October, 2004 when I was preparing a letter to Commercial
   Court asking for copies of proceedings, judgment and decree when I
   discovered that the copy of Notice of Appeal filed in our case file
   does not indicate anywhere that it was served on Law Associates
   Advocates for the respondents. On asking our secretary, she said
   that she inadvertently did not serve the copy of Notice of Appeal on
   the advocates for the respondents. On further examining the Notice
   of Appeal I noticed that it was wrongly titled, instead of titling
   it IN THE COURT OF APPEAL OF TANZANIA it was titled in THE HIGH
   COURT OF TANZANIA COMMERCIAL DIVISION which mistake requires to be
   corrected.”

In his erudite
submissions before the Court, Mr. Mfalila, learned advocate for the
applicant advanced a number of reasons in support of the prayer to
enlarge time to serve notice of appeal on the respondent. He
correctly submitted that the notice of appeal was lodged in time on
the 13.10.2004 but inadvertently, he claimed that the office
secretary, Miss Remigia Nyebwaki, who was not versed in court
procedures, did not serve the notice of appeal on the respondent in
terms of rule 77 (1) of the Court Rules. When Mr. Bakilana became
aware of the error, remedial measures were put in place to put the
appeal back on its rails. The error, the learned advocate contended,
was occasioned by the inexperience of the office secretary in court
procedures. Secondly, Mr. Mfalila submitted that the intended appeal
stood overwhelming chances of success, and cited the case of
Principal Secretary, Ministry of Defence and National Service v. D.
P. Valambia (1992) TLR 387 at page 402 F – G. Thirdly, the
learned advocate submitted that the appeal involves a very huge sum
of money and the applicant should be given a chance to be heard. At
the end of the day, Mr. Mfalila was of the view that a wide
interpretation should be given to “sufficient reason” so
as to include “mistake, oversight of counsel” in order to
meet the justice of the case.

Mr.
C. Tenga, learned advocate for the first respondent strongly resisted
the application. He submitted that Mr. Bakilana, learned advocate,
on the 16.10.2004 became aware of the fact that a copy of the notice
of appeal in their case file did not indicate that it had been served
upon the learned advocates for the respondents. The learned advocate
did not take any action until the 14.1.2005 when this notice of
motion was filed in this Court. This was about eighty seven (87)
days after Mr. Bakilana had become aware that the purported notice of
appeal had not been served on the respondents. Mr. C. Tenga was of
the view that this was inexcusable delay which cannot be condoned.
To bolster up his case, the learned advocate referred to the case of
Inspector
Sadiki and Others v. Gerald Nkya
(1997) TLR 290.

To complete the picture,
I take the liberty to quote the relevant paragraphs from Miss Remigia
Nyebwaki’s affidavit in support of the application –

3. That
   on Wednesday, 13^th
   October 2004, around 10.00 a.m. I took the Notice of Appeal and
   proceeded to Commercial Court where I filed it by paying court fees.
   I left the Notice of Appeal there as it was not yet signed by the
   Registrar. I was informed by staff of the Commercial Court
   Division, information which I believe to be true that I could come
   back later in the afternoon on the same day or on Friday 15^th
   because 14^th
   October 2004 would be a public holiday “Nyerere Day”.

4. That
   on Friday, 15^th
   October, 2004 around 12.30 p.m. I went to the Commercial Court to
   collect the Notice of Appeal and found the Registry Officer Mr.
   Rashid was out of the office, he was at the mosque. I waited for
   him for about two hours but didn’t come back. I left there at
   2.35 p.m. without having the said document.

5. That
   on Monday, 18^th
   day of October 2004, again went to the Commercial Court and
   succeeded to collect the signed Notice of Appeal from Mr. Rashid, I
   gave (sic) only one copy of the notice instead of two. I tried to
   ask for another copy but Mr. Rashid told that one copy is enough for
   you (me). I came back to my office and filed that Notice of Appeal
   in its file without serving a copy of it on Law Associates,
   Advocates for the respondent and put the file on my boss’s
   desk – Mr. Bakilana.

6. That
   on or about 19^th
   day of October 2004 Mr. Bakilana asked me whether I had served the
   copy of the Notice of Appeal on Law Associates, Advocates and it was
   then that I realized that I had not done so.

7. That my failure to
   serve the Notice of Appeal on Law Associates, Advocates was due to
   oversight on my part”.

As Mr. Mfalila, learned
advocate, correctly submitted, judgment which is being appealed
against was delivered on the 1.10.2004 and the notice of appeal was
lodged within the prescribed period in the High Court on the
13.10.2004. The learned advocate however readily conceded that the
applicant did not comply with Rule 77 (1) of the Court Rules for
failing to serve a copy of the notice of Appeal on the respondent
within seven (7) days after lodging the notice of appeal in the High
Court. The cut – off date would have been the 20.10.2004.
This takes me to Rule 8 of the Court Rules which reads –

“(8) The Court
may for sufficient reason extend the time limited by these Rules or
by any decision of the Court or of the High Court for the doing of
any act authorized or required by these Rules, whether before or
after the expiration of that time and whether before or after the
doing of the act, and any reference in these Rules to any such time
shall be construed as a reference to that time as extended”.

The
Court has wide discretion to extend time even where the time limited
for serving notice of appeal on the respondent has already expired.
Under rules 8 and 77 (1) the applicant must show sufficient reason as
to why he did not serve notice of appeal within seven (7) days of the
lodgement of the notice of appeal. Two competing principles are
involved in an application of this nature which the court has to
consider.

In
Costellow
v. Somerset County Council
(1993) IWLR 256 Sir Thomas Buigham, M. R. had this to say at page 263
–

“The
first principle is that the rules of court and the associated rules
of practice, devised in the public interest to promote the
expeditious dispatch of litigation, must be observed. The prescribed
time limits are not targets to be aimed at or expressions of pious
hope but requirements to be met. The second principle is that a
plaintiff should not in the ordinary way be denied an adjudication of
his claim on its merits because of procedural default, unless the
default causes prejudice to his opponent for which an award of costs
cannot compensate”.

And
in the case of Ratman
v. Cumara Samy
(1965) IWLR 8 at page 12 the Privy Council, in appeal from Nalaya,
stated thus -

“The rules of
court must be obeyed, and in order to justify a court in extending
the time during which some step in procedure requires to be taken
there must be some material upon which the court can exercise its
discretion. If the law were otherwise, a party in breach would have
an unqualified right to an extension of time which would defeat the
purpose of the rules, which is to provide a time table for the
conduct of litigation”.

In
the instant case a secretary of Haki Law Chambers, one Remigia
Nyebwaki was duly instructed by Mr. Bakilana, learned advocate, to
file notice of appeal against the decision of Dr. Bwana, J. She
lodged it on the 13.10.2004 but did not take a second copy of the
notice of appeal with her because allegedly one Mr. Rashidi was out
of the office. She managed to get it on the 18.10.2004. That may
well have been the case, but in my view, it was imperative to have an
affidavit of Mr. Rashidi to back up her explanation. The critical
information in paragraph 3, 4 and 5 is hearsay evidence. If this
“evidence” is discounted, there is no affidavit evidence
before the Court as to why the respondents were not served with
notice within the prescribed time in terms of rule 77 (1) of the
Court Rules.

Let
me turn my attention to Mr. Bakilana’s affidavit. The learned
advocate seems to throw the blame or the Secretary. Needless to say,
this Court is least interested, if at all, in the allocation of
responsibilities in Haki Law Chambers. Mr. Bakilana became aware
that the notice of appeal had not been served on the respondent on
the 16.10.2005. Fair enough, the seven days had not expired as yet
reckoned from the 13.10.2005 when the notice of appeal was lodged.
At least the applicant had a signed notice of appeal on the
13.10.2005 and a photocopy thereof could have been served on the
respondent. This line of action was not pursued. On the 18.10.2005
another copy then was available from Mr. Rashidi and two days had
remained before the expiry of the seven days. There is no
explanation forthcoming from the applicant! The notice of motion was
filed on the 14.1.2005. There is no explanation whatsoever from Mr.
Bakilana as to what he did to salvage the situation from the
17.10.2004 to the 13.1.2005. He is the learned advocate who had the
conduct of the matter in the High Court and who had prepared the
incorrect notice of appeal. In my view, Mr. Bakilana’s
affidavit is seriously flawed. There is a big gap from the
19.10.2004 to 13.1.2005 for which no explanation has been offered at
all. As stated before Remigia Nyebwaki valiantly tried to explain
her endevours to obtain a signed notice of appeal from 13.10.2004 to
18.10.2004 from one Mr. Rashidi. There is no affidavit evidence from
Mr. Rashid to confirm the purported facts in her affidavit. Her
affidavit evidence is consequently of little, if any, evidential
value in this application.

On
his part, Mr. Bakilana, learned advocate who apparently had the
conduct of the case in the court below, became aware of the fact that
the notice of appeal had not been served an the respondents, three
days after the lodgement of the notice of appeal. Yet it has taken
87 days to file notice of motion seeking extension of time to serve
the said notice of appeal. What is worse, the explanation given
relates to the period from the 13.10.2004 up to the 18.10.2004.
There is a conspicuous lacuna from the 19.10.2004 to the 13.1.2005
which is crying for a satisfactory explanation. Once a party is in
default (as the applicant herein was) it was incumbent for the
applicant to place before the Court the necessary and relevant
material to satisfy the Court that despite the default, the
discretion should nevertheless be exercised in their favour. The
applicant has to account satisfactorily the delay in serving the
notice of appeal. The applicant, unfortunately, has not in my view,
discharged this burden. I am satisfied that there are no reasons
before the Court, let alone sufficient reasons, for the failure by
both Miss Remigia Nyebwaki and Mr. Peter Bakilana, learned advocate,
to serve the respondents with the notice of appeal in terms of rule
77 (1) of the Court Rules.

It
will be recalled that Mr. Mfalila also submitted that the application
for extension of time should not be refused because the applicant had
overwhelming chances of succeeding if the appeal is heard on its
merits. Indeed, this is one of the factors to be taken into
consideration in application No. MB. 2 of 1981 Chrisant
Majiyatanga Mzindakaya and Gilbert Louis Ngua,
a single judge of this Court (late Nyalali, C. J.) made the following
pertinent observations when considering whether or not an intended
appeal stands a reasonable chance of success. He stated thus –

“The
question arises whether the intended appeal stands a reasonable
chance of success. In answering this question I am not required to
re – evaluate the evidence adduced in support of the petition
since that is the work of the Court of Appeal when actually hearing a
first appeal. I am not hearing the intended appeal in these
proceedings. In my view I am required to see whether there are non –
directions or misdirections on the evidence or on the law, and
whether there are irregularities affecting the proceedings of the
court below and to decide whether on the basis of such non –
directions or misdirections or irregularities, the intended appeal
stands a reasonable chance of success.”

Whatever
the merits or otherwise of Mr. Mfalila’s submissions on this
point, this ground it not reflected in the notice of motion as
required under rule 45 (1) and (2) of the Court Rules. (See: (CAT)
Civil Application No. 66 of 1998, Miroslav
Katik Vesra (ii) Paladin Ingra and Ivan Makobrad
(unreported).
It is therefore not surprising that both affidavits in support of
the notice of motion did not contain any statements of the nature of
the judgment and the reasons for desiring to appeal against it. This
would enable the Court to determine whether or not a refusal of the
application would cause injustice.

In
view of the conclusion, I have reached, there is no need for me to
consider and determine the prayer to amend the notice of appeal.

The
application is accordingly dismissed with costs.

DATED
at DAR ES SALAAM this ………………………….
day of ………………………………………,
2005.