MARTHA DANIEL v PETER THOMAS NKO 1992 TLR 359 (HC)

 MARTHA DANIEL v PETER THOMAS NKO 1992 TLR 359 (HC)

Court High Court of Tanzania - Arusha

Judge Mroso J

4th December, 1992 F

Flynote

Civil Practice and Procedure - Appeals - Application for extension of time to institute

appeal - Appeal filed within time but in a wrong court - Ignorance of rules by a lay

person - Whether sufficient reason - Section 25 Magistrates' Courts Act, 1984. G

-Headnote

The applicant lost an appeal in the District Court. Instead of filing her petition of

appeal in the District Court the applicant, filed the petition of appeal directly in the

High Court in contravention of the procedure stipulated in section 25(3) of the

Magistrates' Courts H Act, 1984. The High Court struck out the appeal which was

not properly before it. When the applicant wanted to file the appeal according to the

laid down procedure it was discovered that time for so filing had ended. It was, thus,

necessary to apply for extension of time to file the appeal. One of the reasons

advanced was that the applicant I was a lay person who did not know the rules.

1992 TLR p360

MROSO J

Held: A plea by a lay person that he be allowed to file an appeal out of time in an A

appropriate court an appeal which was struck out or is voluntarily withdrawn from

the High Court because it had been wrongly filed there, but timely, constitutes a

sufficient reason.

Case Information

Application allowed. B

Musei, for the applicant.

Umbulla, for the respondent.

Judgment

Mroso, J.: The applicant was the losing party in an appeal from the Primary Court of

C Maji ya Chai to the District Court of Arusha. She filed (PC) Civil Appeal No. 47 of

1985 to this court. But in doing so she contravened the procedure stipulated in section

25(3) of the Magistrates Courts Act, 1984 by filing the petition of appeal directly in

the High Court instead of filing it in the District Court of Arusha. Because of that this

D court was moved by Mr. Umbulla, learned advocate for the respondent, to strike

out the appeal which was not properly before it. Following that order, the applicant

through her advocate, Mr. Musei, wishes to file the appeal afresh, in the correct

procedure. But E since the time for appeal has long run out, she has filed this

application for leave to appeal out of time. In the Chamber Application Mr. Musei has

cited Section 25(l)(b) of the Magistrates' Courts Act, 1984 and Section 4(l) of the Law

of Limitation Act. The application is supported by the affidavit of the applicant. F

The main reasons given in the applicant's affidavit for the enlargement of time are

that she is an illiterate woman who was ignorant of the provisions of section 25(3) of

the Magistrates' Courts Act, 1984 and that the High Court registry staff did not

inform her at the time she presented her petition of appeal that it ought to have been

presented in G the District Court from the judgment of which the appeal was

preferred.

During the hearing of the application Mr. Musei elaborated that even lawyers had

been overlooking the requirements of section 25(3) of the Magistrates' Courts Act,

1984 H and, therefore, that this court should show special consideration for a lay and

illiterate person like the applicant. Mr. Musei further submitted that the applicants

appeal to this Court which was struck out for not being properly before the court had

in fact been filed in time and that the applicant's intended appeal is meritorious. I

1992 TLR p361

MROSO J

Mr. Umbulla for the respondent vehemently resisted the application and asked the A

court to dismiss it. He submitted that there have not been shown special and adequate

grounds for the delay in filing the appeal and that ignorance of the law is not an

excuse. In support of that submission, he cited the case of Rozendo Ayres Ribeiro v

Olivia Daritta Siqueira E. Fachao and Lilia Ozlinda Pia Daritta Siqueira [1934] Vol. I

B EACA 1 where it was held that if an appeal is not filed in time, special

circumstances have to be shown for extension of time to appeal. Examples of special

circumstances were given as where there has been any misleading through any

conduct of the other party or where some mistake had been made in the office itself,

and the party was C misled by an officer of the Court or where some sudden

accident which could not have been foreseen accounted for the delay. But a mere

misunderstanding of the provisions of appeal rules will not amount to special

circumstances. D

Mr. Umbulla also cited a Ruling of this Court in Miscellaneous Civil Application No.

97 of 1992 Martin Paul v Gerald Valery: unreported, in which it was held that filing

an appeal in the wrong court is not a sufficient ground for extension of time to appeal.

It was further argued by Mr. Umbulla citing the Court of Appeal of Tanzania

Miscellaneous E Civil Application No. 20 of 1988 - Maulidi Hussein v Abdallah Juma

as authority, that mistake of counsel or applicant or even prospects of the intended

appeal succeeding is not a sufficient ground for granting leave to appeal out of time.

In response to the arguments and the authorities cited by Mr. Umbulla, Mr. Musei

said F that those authorities were not relevant to the application under

consideration. He said the applicant who was not represented by counsel when she

filed her appeal, had in fact acted with due diligence in filing it in time, albeit in the

wrong court. G

An appeal to the High Court from the decision or order of the District Court in

proceedings originating from the Primary Court has to be filed within 30 days of such

decision or order, according to section 25(l) of the Magistrates' Courts Act, 1984.

There is a proviso however, that the High Court may extend the time for filing such

appeal. Even H so, there must be sufficient reason to make the High Court exercise

its discretion to extend the time, for the High Court in exercising its discretion it must

act judicially. To act judicially implies acting for good or sufficient reason.

The applicant who admittedly is a lay person, and it is claimed she is illiterate, acted

in I time in preparing her petition of appeal to

1992 TLR p362

MROSO J

the High Court against a decision of the District Court of Arusha sitting as a first A

appellate Court. The question is whether her ignorance of the procedure as contained

in section 25(3) of the Magistrates' Courts Act, 1984 can amount to sufficient reason

to give her enlarged time to refile the appeal, this time in the correct court. B

I have had the advantage of reading through the cases which were cited to me by Mr.

Umbulla.

In the Ribeiro v Siqueira case Counsel for the applicant for extension of time under

Rule 8 of the Eastern Africa Court of Appeal Rules, 1925 had claimed that a

misinterpretation C of the judgment of the Supreme Court of Kenya had been the

cause for failure to appeal in time against that judgment. The Court of Appeal said in

that connection:

D Now before the applicant can succeed he must show that there have been

special grounds for his delay in presenting his appeal, and here we would observe.

That it is settled law that a mistake made by him or by his counsel as to the effect of

the judgment could not per se constitute a good ground for granting his application.

E

Citing the case of in Re Coles and Ravenshear [1907] 1 KB 8 where Farewell, L.J. said:

F A mere slip or blunder on the part of the litigant's legal adviser cannot, in my

view, entitle him to anything at all the Court of Appeal for Eastern Africa refused to

grant leave.

In CAT Civil Application No. 20 of 1988 - Maulidi Hussein v Abdallah Juma case G

(unreported), it was held that negligence or want of diligence by counsel for a party is

not a sufficient reason for granting leave to appeal out of time. A similar view was

held in CAT Civil Application No. 13 of 1987 - Institute of Finance Management v

Simon Manyaki (also unreported). However, in both the Simon Manyaki case and in

the case H of Shah Hemras Bharmal and Brothers v Santosh Kumari w/o J.N. Bhola

[1961] E.A. 679 a significant departure appears to have been made from the Ribeiro v

Sequeira case in that mistakes of legal advisers, within limits, may amount to

sufficient reason for extending time to appeal. In the Simon Manyaki case Kisanga,

J.A. said: I

1992 TLR p363

MROSO J

A The decision in each case must depend on the facts and circumstances of the

individual case ... The point to stress here is that counsel's mistake may amount to

sufficient reason only where the mistake involves a minor or slight lapse, but not

where it involves a lapse of a fundamental nature.

That was also the view which was expressed by the Court of Appeal of Tanzania in

the B case of Kighoma Alli Malima v Abas Yusufu Mwingamno, Civil Application

No. 5 of 1987 (also unreported). The Ruling of this court in the Martin Paul v Gerald

Vallery was based solely on the EACA decision in Ribeiro v Siqueira case. C

Apart from the Ribeira v Siqueira and Martin Paul v General Vallery cases which said

that mistakes by applicants (as distinct from those made by their counsel) cannot be

considered (whatever they may be?) as providing sufficient reason for extending time

for appeal, the other cases to which I have referred centred on mistakes or negligence

or D lack of diligence on the part of counsel for parties. I think where a mistake

relates to a procedure as set out by law but otherwise there is no negligence or want

of diligence, a distinction should be drawn between a lawyer and a lay person.

A lawyer is trained on how and where to look for the law. It is easy for a court to E

reject his plea that he did not realise that a certain legal procedure for filing an appeal

existed. But a lay person who has been acting with due diligence may easily be misled

by a wrong practice. For example, it is a fact that until I put a stop to it and issued

firm directions, it had been the practice in this court for a long time for appeals in

proceedings F originating from the Primary Court to be filed directly in the High

Court, in complete oblivion of the provisions of section 2 5(3) of the Magistrates'

Courts Act, 1984. There are scores of decisions of this court in appeals which were

filed in contravention of section 25(3) referred to, and which remain "valid" because

no one as yet has appealed G to the Court of Appeal to have them overturned on that

ground. For my part, therefore, I shall be inclined to accept as a sufficient reason a

plea by a lay person that he be allowed to file out of time in the appropriate court an

appeal which has been struck out or is voluntarily withdrawn from the High Court,

because it had been wrongly filed there, but H timeously.

The last point I have to consider in this application is whether I should allow it, Mr.

Musei said the intended appeal stands a good chance of success. Mr. Umbulla disputes

that I argument and said that in fact it stands no such chance.

1992 TLR p364

MROSO J

In the case of Mugo and Another v Wanjiru and Another [1970] E.A. 481, leave to A

appeal out of time was sought on the ground that proceedings in the Supreme Court

of Kenya were conducted in breach of the principles of natural justice, suggesting

thereby that the intended appeal had a high likelihood of succeeding. The Court said:

B

I would agree to this extent, that I do not think the fact that an appeal appears

likely to succeed can of itself amount to a "sufficient reason". Normally, I think, the

sufficient reason must relate to the inability to take the particular step in time, but I

am not prepared to say that C no other consideration may be invoked.

The court granted the extension of time sought because there had been a distinct

possibility that the proceedings in the Supreme Court had been conducted in breach

of D principles of natural justice, in that the parties had not been given opportunity

to be heard.

In the application before me, although, it is stated in the applicant's affidavit that the

appeal was "meritorious" no copy of the judgment against which the appeal is

intended E was annexed to the application. So, this court has no means to verify the

claim that the appeal is or is not "meritorious".

Mr. Umbulla for the respondent, however, has submitted that the respondent has

been on the disputed land since 1980, after buying it. The applicant was aware of that

fact and did F not take any steps to challenge the respondent's occupation until four

years later, in 1984. For those reasons Mr. Umbulla prayed that the application be

dismissed with costs.

As I have already said I am not in a position to know the merits of the intended

appeal G but since I have found for the reasons discussed earlier that the applicant

has shown sufficient cause, leave is hereby granted to the applicant to file the

intended appeal out of time. The period is extended to 14th December, 1992.

H Application allowed.

1992 TLR p365

A