MICHAEL LESSANI KWEKA v JOHN ELIAFYE 1997 TLR 152 (CA) A

 MICHAEL LESSANI KWEKA v JOHN ELIAFYE 1997 TLR 152 (CA) A

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA

B CIVIL APPLICATION 6 OF 1996

20 May 1997

(An application for extension of time to serve a copy of the notice of appeal from the

judgment and decree of the High Court of Tanzania, Dar es Salaam, Bubeshi J) C

Flynote

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

to perform - Failure of clerk to serve notice - Advocate having acted diligently after

discovery of inadvertence.

-Headnote

The applicant applied for an extension of time within which to serve a copy of a

notice of appeal and a copy of his letter to the Registrar applying for proceedings in

the case. It appeared that the advocate's clerk had, through inadvertence, failed to

serve the two documents on the respondent's advocate. E

Held:

(i) The Court had power to grant an extension of time if sufficient cause

had been shown for doing so;

(ii) In the instant case the applicant had shown reasonable diligence in

correcting the error immediately upon discovery and this conduct F warranted

consideration for enlarging the time in his favour.

Case Information

Order accordingly.

G No cases referred to.

Mbuya for the applicant.

The respondent appeared in person.

[zJDz]Judgment

Kisanga JA: H

This is an application for extension of time to serve on the respondent a copy of the

notice of appeal and a copy of the letter to the Registrar applying for proceedings in

the case. The applicant is advocated for by Mr E H Mbuya while the respondent

appeared and resisted the application in person.

The ground for the application, as set out in the affidavits of Mr Mbuya and his clerk,

one Elda Maro, is that the said Elda Maro, I

1997 TLR p153

KISANGA JA

through inadvertence, failed to serve the two documents above mentioned on the A

respondent's advocate.

The respondent vigorously resisted the application on the ground that inadvertence

on Mr Mbuya's clerk does not amount to sufficient cause for granting extension of

time, and that Mr Mbuya must take responsibility for the failing of his clerk. He

added that this case has been in the courts for too long so that granting this B

application would serve to deny him further the right to enjoy the fruits of his victory

which he has consistently won in the lower courts.

I have given due consideration to the arguments advanced by both sides. Under Rule

8 of the Court of Appeal Rules this Court has power to grant the extension of C time

sought if sufficient cause is shown for doing so. Although generally speaking a plea of

inadvertence is not sufficient, nevertheless I think that extension of time may be

granted upon such plea in certain cases, for example, where the party putting forward

such plea is shown to have acted reasonably diligently to discover the omission and

upon such discovery, he acted promptly to seek D remedy for it. In the instant case

Mr Mbuya's clerk is shown to have overlooked serving the respondent's advocate

with the documents in question on 27 November 1995 when she filed the notice of

appeal in Court. Mr Mbuya in his affidavit says that he discovered this omission on 2

February 1996 when he was E conducting regular checks of his files. In his oral

submission he stated that he was conducting such check upon resumption of business

following the court Christmas vacation which starts in mid-December and finishes at

the end of January each year. By this I understood Mr Mbuya to say that he took off

time to F rest during the court Christmas vacation and went back to work only after

such vacation was over. If this is so, then Mr Mbuya had just about two working

weeks between the date of the omission by his clerk, ie on 27 November 1995 and the

date he discovered the omission on 2 February 1996. The rest of the time was G

taken up by the court Christmas vacation. It seems to me that Mr Mbuya acted

reasonably diligently whereby he was able to discover the omission within the space

of only two weeks. And upon discovery of the omission on 2 February 1996 he again

acted reasonably promptly by filing this notice of motion in Court on 8 February 1996

seeking to have the omission remedied. He did this before the H matter was set for

hearing and indeed before the opposite party took any steps to have the notice of

appeal struck out for reasons arising from the omission in question.

In my view the way Mr Mbuya conducted himself in handling this I

1997 TLR p154

KISANGA JA

A matter following the omission would warrant consideration for enlarging the

time in his favour. Accordingly I grant the application. A copy of the notice of appeal

and a copy of the letter to the Registrar applying for a copy of court proceedings are

to be served on the respondent within three days of this Ruling. Costs of this

application shall abide the results of the appeal. B

1997 TLR p154