FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 154

 

FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 154

(CA) C

Court Court of Appeal of Tanzania - Dar es Salaam D

Judge Mfalila JA

CIVIL APPLICATION 6 OF 1997

21 May 1997

E (An application for extension of time within which to file appeal from ruling of

the High Court of Tanzania, Dar es Salaam, Lugakingira J)

Flynote

F Civil Practice and Procedure - Appeals - Formalities - Extension of time within

which to perform - Technical delay caused by the prior filing of defective notice.

-Headnote

The applicant applied for an extension of time within which to file the appeal. The

application was opposed by the respondent.

Held: G

A distinction had to be drawn between cases involving real or actual delays and those

such as the present one which clearly only involved technical delays in the sense that

the original appeal was lodged in time but had been found to be incompetent for one

or another reason and a fresh appeal had to be instituted. In the present case the

applicant had acted immediately after the pronouncement of the ruling of the court

striking out the first appeal. In these circumstance an extension of time ought to be

granted. H

Case Information

Order accordingly.

No cases referred to.

Mwale for the first respondent. I

1997 TLR p155

[zJDz]Judgment

Mfalila JA: A

This is an application for extension of time within which to file the appeal. The

original appeal was struck out by this Court as being incompetent on the ground that

no order had been extracted and filed with the appeal. The court then directed that it

was open to the appellant in that appeal to institute the appeal afresh by making the

appropriate applications. The appropriate application in such B circumstances is one

for enlargement of time within which to institute the fresh appeal. The present

application is such a one.

Mr Mwale learned Counsel for the first respondent opposed this application on two

C grounds. First he said that the application itself is incompetent because it was filed

under the wrong rule ie Rule 45 instead of Rule 8. Secondly he said that apart from

negligence of Counsel for the applicant, there is no other reason for this delay.

With regard to the first ground, I would say that the omission of Rule 8 from the D

heading of the notice of motion cannot affect the validity of the application because it

is quite clear from the body of the application itself that it is for the extension of time

which can only be made under Rule 8. The error can therefore rectified by simply

inserting Rule 8 in the heading of the application, which step is hereby directed to be

done. E

With regard to the second point, I am satisfied that a distinction should be made

between cases involving real or actual delays and those like the present one which

only involve what can be called technical delays in the sense that the original appeal

was lodged in time but the present situation arose only because the original F appeal

for one reason or another has been found to be incompetent and a fresh appeal has to

be instituted. In the circumstances, the negligence if any really refers to the filing of

an incompetent appeal not the delay in filing it. The filing of an incompetent appeal

having been duly penalised by striking it out, the same cannot be used yet again to

determine the timeousness of applying for filing the fresh appeal. In fact in the

present case, the applicant acted immediately after the G pronouncement of the

ruling of this Court striking out the first appeal.

Secondly by implication this court was minded to give the applicant a second chance

when it categorically told the applicant that it was open to him to institute a H fresh

appeal by taking the necessary steps towards that goal.

For these reasons I allow this application and extend the time for filing or instituting a

fresh appeal in accordance with the following time line: I

1997 TLR p156

MFALILA JA

A (a) The applicant should file the notice of appeal within fourteen days

from the date of this ruling.

(b) Thereafter the processing of the appeal including the timetable will be

in accordance with the rules of this Court.

The costs of this application to be in the cause. B

1997 TLR p156