DR ALLY SHABHAY v TANGA BOHORA JAMAAT 1997 TLR 305 (CA)

 DR ALLY SHABHAY v TANGA BOHORA JAMAAT 1997 TLR 305 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Samatta JA

CIVIL APPLICATION 48 OF 1997 B

18 November 1997

Flynote

Civil Practice and Procedure - Appeals - Cross-appeals - Application for extension of

time within which to lodge - Rule 8 read with Rule 87(2) of Tanzania Court of Appeal

Rules - Those who come to court must not show C unnecessary delay in doing so;

they must show diligence

-Headnote

The applicant organisation applied for an extension of time within which to lodge in

the Court's D registry and serve upon the respondent notice of cross-appeal. The

only reason given for the delay was that the applicant had delayed in instructing its

counsel to prefer a cross-appeal.

Held:

(i) Whilst procedural rules were meant to facilitate and not always defeat

justice, there was E no warrant for relaxation in the applicant's favour of the

stipulation laid down in Rule 87(2).

Case Information

Application dismissed.

Case referred to:

1. Edwards v Edwards [1968] 1 WLR 149 F

Kalunga for the applicant

Maira for the respondent.

[zJDz]Judgment

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

1997 TLR p306

SAMATTA JA

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

1997 TLR p307

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.

1997 TLR p307

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