GODWIN NDEWESI AND KAROLI ISHENGOMA v TANZANIA AUDIT CORPORATION 1995 TLR 200 (CA)

GODWIN NDEWESI AND KAROLI ISHENGOMA v TANZANIA AUDIT CORPORATION 1995 TLR 200 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Mnzavas JA

Civil Application No 57 of 1994 E

July 3, 1995

(For striking out Notice of Appeal from the decision of the High Court of Tanzania at

Dar es Salaam, Maina, J) F

Flynote

Court of Appeal Rules - Notice of Appeal - Time within which to lodge such notice -

Notice lodged one day out of time - Whether Court can allow the notice to stand.

-Headnote

G The respondent had filed a notice of appeal one day out of time and then prayed

the Court to exercise its discretion to allow the notice of appeal to stand. The

applicant argued that the notice of appeal be struck out as it offended the provisions

of rule 76(2) of the Court of Appeal Rules, 1979.

H Held:

(i) The rules of court must prima facie be obeyed and in order to justify

extending time during which some step in the procedure requires to be taken there

must be some material on which the court can exercise its discretion;

(ii) In the present case the respondent's delay in filing his notice of appeal

was due to an oversight, which is not a good reason for the Court to exercise its

discretion under rule 3 of the Court of Appeal Rules; I

1995 TLR p201

Mnzavas JA

Case Infomation

Order accordingly A

Case referred to:

(i) Ratnam v Cumarasamy and Another [1964] 3 All ER 933

Kashumbugu, for the applicant. B

Safari, for the respondent.

[zJDz]Judgment

Mnzavas, J.A., read the following ruling:

In a notice of motion under r 82 of the Court of Appeal Rules Mr Kashumbugu, C

learned counsel for the applicant argued that the notice of appeal filed by the

respondent be struck out, as it was argued it offends r 76(2) which says that notice of

appeal should be lodged in court within 14 days from the date of the judgment. It was

the learned counsel's submission that in the present case notice was lodged in the

court's registry 15 days after the judgment, i.e. one day out of time. D

In rebuttal Mr Safari, learned counsel for the respondent conceded that the notice of

appeal was lodged one day out of time. He, however, told the court that the notice

was intended to be filed on 21 June 1994 but by an oversight it was filed on E 22

June 1994.

Mr Safari asked the court to exercise its discretion under r 3 of the Court of Appeal

Rules and allow the notice of appeal to stand as it is only one day out of time.

In reply Mr Kashumbugu, learned counsel for the applicant countered that the F

learned counsel for the respondent should have applied for extension of time to file

his notice of appeal after he had learnt that he was already out of time instead of

asking the court to invoke its powers under r 3 of the Court of Appeal Rules.

With respect to the learned counsel for the respondent this is not a proper case for the

court to invoke its powers under r 3 of the Court of Appeal Rules even if that G rule

could be called in aid of the respondent.

As it was held Ratnam v Cumarasamy and Another (1) at 935 -

'The rules of court must prima facie be obeyed and, in order to justify a court

in extending time H during which some step in procedure requires to be taken there

must be some material on which the Court can exercise its discretion. If the law were

otherwise any party in breach would have an unqualified right to extension of time

which would defeat the purpose of the rules which is to provide a timetable for the

conduct of litigation.' I

1995 TLR p202

Mnzavas JA

A Rules are made to be followed. In the present case the respondent's delay in filing

his notice of appeal was due to an oversight; this cannot be said with any stretch of

the imagination to be a good reason for the court to exercise its discretion under rule

3 of the Court of Appeal Rules.

B I agree with Mr Kashumbugu's argument that the notice of appeal is incompetent

and it is accordingly struck out as incompetent. The applicant to have his costs.

1995 TLR p202

D