ASMIN RASHIDI v BOKO OMARI 1997 TLR 146 (CA) A

 

ASMIN RASHIDI v BOKO OMARI 1997 TLR 146 (CA) A

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Mfalila JA

CIVIL APPLICATION 23 OF 1997 B

16 May 1997

(An application to strike out notice of appeal from the decision of the High Court of

Tanzania, Dar es Salaam, Mapigano J) C

Flynote

Civil Practice and Procedure - Appeal - Delay in prosecution of - What constitutes

essential steps as envisaged by Rule 82

-Headnote

D The applicant applied to strike out the notice of appeal filed by the respondent for

appealing against a ruling dated 25 April 1996 refusing to issue a certificate or to

certify a point of law following the court's judgment on 17 October 1995. The court

held that there was no point of law involved to certify. The respondent filed the

notice of appeal the same day, ie on 25 April 1996, but failed to take any steps

thereafter. E

Held:

(i) The essential steps in the prosecution of an appeal as envisaged by Rule

82 were steps which advanced the hearing of the appeal and not explanations for

delays. One of the essential steps in the instant case was to apply for leave to appeal

against the ruling of the court of 25 April 1996 for there was no automatic right of

appeal against that ruling; F

(ii) Nothing essential had been done since 25 April 1996 to prosecute the

appeal for a whole year and the notice had to be struck out.

Case Information

Order accordingly. G

No cases referred to:

Magesa for the respondent.

[zJDz]Judgment

Mfalila JA: H

This is an application to strike out the notice of appeal filed by the respondent for

appealing against the ruling of Mapigano J dated 25 April 1996 refusing to issue a

certificate or to certify a point of law to this Court, following his judgment dated 17

October 1995. Mapigano J ruled that there was no point of law involved for him to

certify. Following this ruling, the respondent filed the notice of appeal the same day,

that is on 25 April 1996. But since then the I

1997 TLR p147

MFALILA JA

respondent did nothing to prosecute the intended appeal, hence the applicant's A

submission that the said notice of appeal be struck out.

Before proceeding further, I wish to correct the record that the notice of appeal being

impugned in this application relates to the ruling of Mapigano J dated 25 April 1996

and not his judgment dated 17 October 1995. Hence the notice of appeal filed by the

respondent on 25 April 1996 is in time and not time barred as stated in the applicant's

affidavit. B

However, with regard to the lack of essential steps being taken, Mr Magesa, Counsel

for the respondent, submitted that they did take essential steps in that they filed an

application for extension of time within which to appeal against the ruling of

Mapigaro J and that they did this as early as March 1997. The short C answer to this

with respect is that this is not an essential step envisaged in Rule 82. What is

envisaged in that rule are steps which advance the hearing of the appeal not

explanations for delays. In this particular case, one of the most essential steps was to

apply for leave to appeal against the ruling of Mapigano J of D 25 April 1996, for

there was no right of appeal to this Court against that ruling. This was not done, all

that was done was simply to apply for extension of time within which to appeal as if

there was a right of appeal without leave. E

The notice of appeal was filed on 25 April 1996 and nothing essential has been done

to-date to prosecute the appeal not even as far as the record shows, applying for copy

of records with copy to the applicant.

In the circumstances I am satisfied that the respondent has failed to take essential F

steps to prosecute the appeal for the last one year. This delay is more than inordinate.

I allow this application and order that the notice of appeal dated 25 April 1996 be and

is hereby struck out with costs. G

1997 TLR p148