UMOJA GARAGE v NATIONAL BANK OF COMMERCE 1997 TLR 109 (CA) C

UMOJA GARAGE v NATIONAL BANK OF COMMERCE 1997 TLR 109 (CA) C

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JA D

CIVIL APPLICATION 26 OF 1996

23 April 1997

(An application for extension of time to file Notice of Appeal from the ruling of the

E high Court of Tanzania, Dar es Salaam, Bubeshi J)

Flynote

Civil Practice and Procedure - Appeal - Extension of time to file notice of appeal -

Fault of counsel in neglecting to obtain Registrar's certificate. F

-Headnote

The applicant applied for an extension of time to file notice of appeal. The same

application had been made before but had been refused. There had been two sets G

of proceedings in the matter and the applicant, who was aggrieved by the outcome of

the proceedings, wished to prosecute the appeal and sought copies of the proceedings.

The Registrar supplied a certificate of exemption for the one case but not the other

and counsel used the incorrect certificate in the attempt to save the purported appeal

in the present case which was long time-barred. H

Held:

(i) It was clear that the error had been committed by the applicant's

counsel and the Registrar could not be held blameworthy;

(ii) in the circumstances no sufficient cause had been made out for

enlarging the time as prayed.

Case Information

Application dismissed. I

1997 TLR p110

KISANGA JA

A Cases referred to:

1. Daphne Parry v Murray Alexander Carson [1963] EA 546

2. Harram Singh Bhogal v Javda Karsan [1952] 20 EACA 17

Lukwaro for the applicant.

Uzanda for the respondent. B

[zJDz]Judgment

Kisanga JA

This is an application for extension of time to file notice of appeal to this Court. The

same application was previously made to the High Court (Bubeshi, J) but was refused.

C

Very briefly the background to this matter is as follows: This Court in Civil Appeal

No 27 of 1995 struck out the appeal, upon a preliminary objection being taken by the

opposite party, on the ground that the said appeal was hopelessly out of time.

Following that, the applicant applied to the High Court for extension of time to file

D fresh notice of appeal but that application was refused, hence this further

application to restore the appeal.

Before me the applicant was represented by Mr Lukwaro, learned advocate, while the

respondent was advocated for by Mr Uzanda, learned advocate. In his notice of

motion Mr Lukwaro sets out prayer for several orders, the first one being one for E

the extension of time to file a notice of appeal. I propose to deal with this one first

because the fate of the other orders prayed for necessarily depends on whether or not

I grant the extension of time to file notice of appeal. F

The record shows that there were two sets of proceedings in this matter. The first set

is the one culminating in the judgment of Mrema J, while the other one concerns an

application for leave to file a memorandum out of time to review that judgment, and

culminates in the ruling of Bubeshi J refusing the application. In both cases the

applicant who was aggrieved, gave notices of intention to appeal and G duly applied

to the Registrar for copies of proceedings. His advocate also sent to the Registrar a

reminder for the supply of the proceedings relating to the judgment of Mrema, J. The

Registrar supplied the proceedings, and acting under Rule 83(1) of the Court of

Appeal Rules, he issued a certificate excluding the application of H the limitation

period in respect of the proceedings culminating in the ruling of Bubeshi, J; he issued

no such certificate, however, in respect of the proceeding culminating in the

judgment by Mrema J. Relying on such certificate, counsel for the applicant

proceeded to prepare and file the record of appeal in Civil Appeal No 27 of 1995

against the judgment of Mrema J. It is clear, therefore, that the learned counsel relied

on the wrong certificate of exemption by the Registrar to file the record of appeal in

Civil Appeal No 27 of 1995. That is to say, there was no certificate of exemption by

the Registrar to save the purported Civil Appeal No 27 of 1995 I

1997 TLR p111

KISANGA JA

against the judgment of Mrema J. It is clear, therefore, that the learned counsel A

relied on the wrong certificate of exemption by the Registrar to file the record of

appeal in Civil Appeal No 27 of 1995. That is to say, there was no certificate of

exemption by the Registrar to save the purported Civil Appeal No 27 of 1995 which

was long time barred. It is against this background that that appeal, as stated earlier,

was struck out as being hopelessly out of time. B

Mr Lukwaro's concern is that the applicant should now be allowed to restore the

appeal because the original appeal ie Civil Appeal No 27 of 1995 was struck out partly

due to the fault of the Registrar. Counsel contended that the Registrar wrongly

supplied a certificate of exemption relating to the ruling by Bubeshi J C

notwithstanding that the applicant's counsel had applied to the Registrar, and sent a

reminder, for the supply of the proceedings relating to the judgment by Mrema J.

According to counsel, had the Registrar granted the certificate in respect of the

proceedings relating to the judgment of Mrema J the Civil Appeal No 27 of 1995 D

would have thereby been saved; it would not have been struck out for being time

barred. Therefore, counsel maintained, the applicant should be allowed extension of

time to file fresh notice of appeal, thereby affording an opportunity for the Registrar

to grant the appropriate certificate of exemption relating to the judgment of Mrema J.

In effect counsel conceded that he wrongly relied on the Registrar's E certificate to

file the record of appeal in Civil Appeal No 27 of 1995, but contended that such error

on his part was induced by the Registrar by wrongly granting a certificate in respect

of the proceedings respecting the ruling by Bubeshi J instead on granting one in

respect of the proceedings culminating in the judgment of F Mrema J.

I have carefully considered the submissions by the learned counsel but I could not

accede to them. To my mind the Registrar acted properly in granting the certificate

G of exemption in respect of the proceedings culminating in the ruling by Bubeshi J

because the applicant had given notice of intention to appeal against that ruling and

had duly applied to be supplied with a copy of proceedings pertaining thereto. The

applicant did not at any time intimate to the Registrar that it had abandoned H the

appeal against the ruling in question or that it was no longer taking any steps to

pursue it. In those circumstances the Registrar cannot, in my view, be faulted for

supplying, as he did, copy of the proceedings relating to the ruling in question and his

certificate pertaining thereto. In other words the Registrar supplied the proceedings

and the certificate pertaining I

1997 TLR p112

KISANGA JA

A thereto in response to the standing request by the appellant to be supplied with

the same. As the Registrar was performing his lawful duty, therefore, he could not be

said to have misled the applicant's counsel or to have induced him to act mistakenly

or wrongly.

B On the other hand it is quite apparent that counsel for the applicant is the one to

blame for what happened. Had he exercised the minimum degree of diligence, he

would have noticed at once that the Registrar's certificate of exemption

accompanying the copy of the proceedings sent to him was not what he wanted for

the purpose of processing his appeal against the judgment of Mrema J. He C would,

no doubt, have asked for the appropriate certificate, and the Registrar would certainly

have obliged. Counsel did not do that, and so he can only have himself to blame for

the ill consequences flowing from such failure.

Mr Lukwaro views this failure as an oversight on his part. That is to say, he D

concedes that he was responsible for the Civil Appeal No 27 of 1995 being struck out

as being hopelessly out of time, and for not having obtained the Registrar's certificate

which would have validated that appeal. The question now is whether such an

oversight amounted to sufficient cause in terms of Rule 8 of the Court of appeal Rules

for granting extension of time now to file a fresh notice of appeal, ie E to restore the

appeal. Mr Lukwaro submitted that such oversight constituted sufficient cause within

the meaning of the rule but, when asked, he could cite no authority to support the

contention.

Mr Uzanda, strongly opposing the application, viewed Mr Lukwaro's handling of this

F matter as amounting to negligence which, he contended, cannot afford sufficient

cause for granting the extension sought. In support of this submission he cited a

number of authorities, in particular the cases of Daphne Parry v Murray Alexander

Carson (1) and Harram Singh Bhogal v Javda Karsan (2). G

I am quite clear in my mind that the state of affairs in this case was brought about by

the failure of the applicant's counsel to act diligently. He proceeded to lodge the

record of appeal in Civil Appeal No 27 of 1995 which was obviously out of time, but

without incorporating the Registrar's certificate of exemption, pertaining to the H

judgment being appealed against to validate the appeal. Counsel has the duty to

ensure that the papers be filed in court not in error.

In this particular case he had a duty, inter alia, to ascertain that the record in Civil

Appeal No 27 of 1995 did incorporate the Registrar's certificate of exemption

pertaining to the proceedings cul- I

1997 TLR p113

KISANGA JA

minating in the judgment of Mrema, J. That Mr Lukwaro did not do. It is quite A

apparent that his handling of this aspect of the matter was highly irresponsible, to say

the least.

The case is almost on all fours with the case of Harram Singh cited above. There, as in

the present case, the Court of Appeal for Eastern Africa had struck out an B appeal

as being incompetent, the reason for the incompetence being that the record of appeal

did not incorporate a copy of the formal or drawn order being appealed against.

Whereupon, again as in this case, the intending appellant sought to restore the appeal

by applying for leave to file out of time an appeal against that order. The application

was brought on the plea, inter alia, that the C omission to file a certified copy of the

formal order was due to an honest but mistaken opinion of his advocate. It was held

that that alone could not constitute a sufficient cause for granting extension of time. It

seems plain to me that in the instant case lack of diligence on the part of counsel, or

an oversight as Mr Lukwaro calls it, would be even more devoid of merit as a plea for

the extension of time. In D the result, therefore, I am of the view that no sufficient

cause has been disclosed for enlarging the time as prayed.

As intimated earlier, the applicant prayed for several other orders which were E

necessarily dependant upon the prayer for the extension of time to file a notice of

appeal which I have refused. With that refusal, therefore, it is now not necessary to

consider the prayer for the other orders. In the event the application is dismissed with

costs. F

1997 TLR p114