Francisca Mbakileki vs Tanzania Harbours Corporation (Civil Application No. 71 of 2002) [2004] TZCA 151 (29 September 2004)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 71 OF 2002 In the Matter of an Intended Appeal BETWEEN FRANCISCA MBAKILEKI ......... ,. .................. ,..,. .. .,. .............. APPLICANT .AND TANZANIA HARBOURS CORPORATION ........................ RESPONDENT (Application for extension of time to institute an appeal from the decision .of the High Court of Tanzania, Dar es Salaam District Registry MSOFFE, J.A.~ at Dar es Salaam) (Kyando, J.) dated the 23 rd day of April, 2002 in Misc. Civil Cause No. 66 of 2002 RULING The applicant herein has filed a notice of motion seeking an order for enlargement of time to institute an appeal against a decisio'n of the _High Court (Kyando, J.) in Misc. Civil Cause· No. 66/2001. The decision was given on 23/4/2002. The notke is brought under Rules 8 and 45 of the Court of Appeal Rules, 1979. From the affidavit evidence and the oral submission made by Mr. Novatus Rweyemamu, learned advocate for the applicant, it is clear that pursuant to the aforesaid decision the applicant lodged a notice of appeal on 7/5/2002 which was well within the 14 days period prescribed under Rule 76. She also wrote a letter to the Registrar asking to be supplied with copies of the proceedings in the
2 above civil cause. The Registrar received the letter on 17/5/2002. On the same date i.e. 17/5/2002, the respondent1s advocate was served with copy of the letter. On 21/6/2002 one Eliuter, a Clerk in the High Court civil registry, allegedly told the applicant that a copy of the proceedings would be ready for delivery to the applicant after the expiry of the sixty days prescribed by Rule 83 (1) of the Court of Appeal Rules. In the light of that information, this application was lodged on 24/6/2002 with a view to extending the sixty days period prescribed for instituting an appeal. It will be noticed at once that when the application was lodged on 24/6/2002 the sixty days period under Rule 83 (1) had not expired. The sixty days were to expire on 6/7/2002. However, according to Mr. Rweyemamu, an application of this nature could be lodged and granted, notwithstanding that the sixty days period prescribed under Rule 83 (1) had not expired. In support of his view, he cited Rule 8 (particularly the word "before" appearing thereat) and the case of Abdulla Shariff v. Kampala General Agency Ltd. 1934 EACA Vol.1 at page 23. Mr. Rweyemamu also urged that the applicant could not institute an appeal without a record of the proceedings. To fortify this view, he cited the case of Sango Bay Estates Ltd. and Others v. Dresdner Bank A.G. 1971 (EA) 17 where an application for leave to file a notice·· of appeal was granted notwithstanding that no affidavit was filed in support of the application, and also notwithstanding that no reason was advanced to explain why it was not filed within time. Therefore, in Mr. Rweyemamu's view, Sango's
• 3 case is "analogous" to this application in that the bottom line is "extension of time". In another dimension of the application, Mr. Rweyemamu expressed some dissatisfaction and concern over the fact that the respondent did not file a counter affidavit in opposition to the notice of motion. He cited Rule 45 (2) .in support of his view that it was necessary for the respondent to file a counter affidavit. On reflection, however, he conceded that there was no need in filing a counter affidavit. On the other hand, Mr. Mhina, learned advocate for the respondent, advanced two main grounds In opposition to the application:- One, the application is premature and misconceived in that once the applicant had applied for a copy of the record the sixty days period did not begin to run until she had actually obtained copy of the said record. Two, the application Is superfluous in view of the exemption provided under Rule 83 (1). In other words, all that was required of the applicant was to apply for a certificate from the Registrar for exclusion of the time requisite for preparation and delivery of the record. If that had been done, the time would beg,in running from the date of de:livery of the record. In support of this view, Mr. Mhina cited Transcontinental Forwarders Ltd. v. Tanganyika Moto,rs (1997) TLR 328 and Foreign Mission Board of the Southern Baptist Co!nvention v. Alexander Panomaritis (1984) TLR 146.
• 4 He also distinguished the cases of Abdulla and Sango for being irrelevant to the issue before the Court in this application. On the respondent's failure to file a counter affidavit, his response was brief:- That it was not fatal. Since, the application is based on pure questions of law, and the respondent is not disputing the fa~ there was no need in filing a counter affidavit, he so reasoned and concluded. In order to appreciate the main point being made in the application it will be instructive to begin by quoting Rule 8 in full as follows:- "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 so extended." (Emphasis added). · It will be evident from the above rule that the power to enlarge time is at the discretion of the Court. I will add that like any other discretionary power it has to be exercised on sound judicial ground(s) or principle(s). The crucial issue in the application will be whether there is good reason for exercising that power in favour of the . applicant.
.., • 5 In my considered view, it is true that a close reading of Rule 8 will appear to show that there is power to extend time before expiration of the requisite time for instituting an appeal. However, in order to appreciate the matter before the Court at this point in time, the Rule should not be read in isolation -of the express proviso under Rule 83 (1). The proviso 1is clear that the Registrar 1 s certificate could always be sought to exclude the time required for the preparation and delivery of the record. Since the applicant had applied for a copy of the proceedings within thirty days of the decision of the High Court, there was no point in filing the application instead of waiting to enjoy the benefit provided for under the proviso. The exemption could have been her only remedy for delay in instituting an appeal under the circumstances. It will also be evident that at the time of filing the application the period under the proviso to Rule 83 (1) had actually not begun to run in computing the sixty days period! I will also add that Rule 83 is a specific one for filing records. Thus, there was no point for the applicant in not seeking a remedy under the proviso thereto. She could have easily done so instead of resorting to Rule 8 which is otherwise a general rule .. The cases of Abdulla and Sango are distinguishable from the present matter. In Abdulla's case no issue of certificate .was involved. Sango's case concerned an application for leave to appeal whereas here we are dealing with an application for extension of time to institute an appeal.
- As to whether there was a requirement by the respondent to file a counter affidavit I will say as follows:- The relevant provision is
• ) w' .... ~ 6· Rule 53 (1) and not Rule 45 (2) as submitted by Mr. Rweyemamu. In the light of the use of the word "may" under Rule 53 ( 1) it will follow that a respondent has a discretion to or not to file an affidavit in reply (counter affidavit). Whe_re a respondent does not dispute matters of fact made in an affidavit there is no need to file a counter affidavit. Likewise, it is unnecessary to file one where the affidavit in . support of an application is confined to questions of law only . ... ?. The application is dismissed with costs. . -- DATED at DAR ES SALAAM this 29 th day of September, 004 . J. H. MSOFFE JUSTICE OF APPEAL . ~ ·-... , .. I certify that this is a true copy of the original. . ( S. JJ.uRA) SENIOR DEPUTY REGISTRAR