COSMAS CONSTRUCTION CO. LTD v ARROW GARMENTS LTD 1992 TLR 127 (CA)

 

COSMAS CONSTRUCTION CO. LTD v ARROW GARMENTS LTD 1992 TLR 127 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JA

6 June 1992

Flynote

Civil Practice and Procedure - Proceedings ex-parte - Right of absent party to notice

of B judgment.

Civil Practice and Procedure - Court of Appeal Rules - Extension of time within

which to institute appeal - Essential information not disclosed - No sufficient reason

given. C

-Headnote

This was an application, by the applicant company, for extension of time to institute

an appeal. The proceedings giving rise to this application were heard by the High

Court in the absence of the applicant, the applicant having refused to accept service of

D summons. It was in evidence that the applicant was not given notice of judgment.

On appeal it was submitted by counsel for the respondent that the High Court had no

obligation to notify the applicant of the date when the judgment was going to be

delivered. In his application for extension of time the applicant said that he was not

given E notice of judgment but did not disclose when he got to know of the

existence of the judgment.

Held: (i) A party who fails to enter an appearance disables himself from participating

when the proceedings are consequently ex-parte, but has to be told when the F

judgment is delivered so that he may, if he wishes, attend to take it as certain

consequences may follow;

(ii) without disclosing when the applicant got to know of the existence of the

judgment it is not possible to gauge the extent of the delay. No sufficient cause for the

delay has been established. G

Case Information

Application dismissed.

Maira, for the applicant.

Lamwai, for the respondent. H

[zJDz]Judgment

Makame, J.A.: This is an application for extension of time within which to institute an

appeal, brought by Cosmas Construction Company Limited represented by Mr. Maira,

learned advocate. It is being resisted by Dr. Lamwai, learned counsel, on behalf of the

I respondent Company, Arrow Garments Limited.

1992 TLR p128

MAKAME JA

The applicant was one of three respondents in the High Court in Misc. Civil Cause 54

A of 1989 in which the respondent alleged that it had been defrauded of a plot of

land by one of its directors, one Kunda Isai Mwasha, the second respondent, who in

turn sold it to the present applicant, then the third respondent. In the High Court the

present B respondent petitioned for rectification of the Land Register under section

99(b) of the Land Registration Ordinance, Cap. 334, so that the memorial entered in

favour of the present applicant is struck out.

The second respondent in the High Court, Kunda Isai Mwasha, evidently central in

the C whole situation, made some effort to resist the Petition but eventually he left

matters mid-air. According to the record, the applicant simply did not bother. Going

by an endorsement on the summons, returnable on 15th July 1989, the applicant

refused to accept service and thereafter, throughout the proceedings, never appeared.

Proof D against the applicant was therefore ex-parte and the hearing closed on 25th

June 1991. By then, or thereafter, the learned trial judge, Masanche J. was stationed

out of Dar es Salaam and he composed the judgment at Musoma on 1st August 1991.

It was delivered in Dar es Salaam by Kaijaga, Ag. SDR, on 17th October 1991.

According to E the Coram for that day Dr. Lamwai was there, for the applicant, and

Mrs. Sinda or Pinda was present "for the 4th Respondents", (Sic). This does not make

sense at all, for there was never a fourth respondent at any stage and so the record

fails to contradict the applicant's contention that the judgment was delivered in his

absence. F

Dr. Lamwai has submitted before me that the High Court had no obligation to notify

the applicant of the date when judgment was going to be delivered. With respect, that

view cannot be correct. A party who fails to enter an appearance disables himself

from participating when the proceedings are consequently ex-parte, but that is the

farthest G extent he suffers. Although the matter is therefore considered without

any input by him he is entitled to know the final outcome. He has to be told when

the judgment is delivered so that he may, if he wishes, attend to take it as certain

consequences may follow. H

In the present matter the applicant was not present and there is no proof that he was

served with a copy of the Notice of Judgment dated 7th October 1991.

On the other hand, and quite seriously, the applicant has held back information he I

should have supplied if he really wanted to have time extended. Just as he did not

quite come out and say in so

1992 TLR p129

many words that the proceedings were ex-parte - he said, instead, he was A

unfortunately absent - he does not say when he eventually got to know that the

judgment had been delivered. Both Mr. Subash Patel's affidavit and Mr. Maira before

me were conveniently silent on this vital aspect of the matter. Judgment was

delivered on 17th October 1991. The Affidavit in support of the motion was not

sworn until 17th March B 1992. How can one know how long the applicant kept

quiet after knowing the outcome? How can I agree that the applicant could not have

instituted an appeal because he 'could not have complied with Rules 76, 77 and 83' -

the Rules which impose time - scales? Mr. Maira is an experienced lawyer and it is

difficult to see how C he could have expected his client to have time extended

without disclosing when he got to know of the existence of the judgment. It is not

possible to gauge the extent of the delay.

I am unable to hold that sufficient cause for the delay has been established and so I

dismiss the application, with costs. D

Application dismissed.

1992 TLR p129

E