METAL PRODUCTS LTD v MINISTER FOR LANDS & DIRECTOR OF LAND SERVICES 1989 TLR 5 (CA)

 METAL PRODUCTS LTD v MINISTER FOR LANDS & DIRECTOR OF LAND SERVICES 1989 TLR 5 (CA)

Court Court of Appeal of Tanzania- Dar Es Salaam

Judge Makame JA

8 February, 1989 C

Flynote

Civil Practice and Procedure - Notice of motion - For extension of time for

application for leave to appeal and for leave to appeal - Whether inadevertence is

sufficient reason for D the delay - Records do not show that oral or informal

applications were made.

-Headnote

This application arises out of a dispute over a piece of land. The applicants

unsuccessfully applied before Msumi, J. for orders of certiorari and prohibition E

challenging the acts of the Minister for Lands and Director of Land Services who had

purportedly acquired the plot originally allocated to the applicants and reallocated it

to Globe Tiles. Seven days after the decision, Miss R.H. Sheikh for the applicant filed

a Notice of Appeal against that decision. An application was then made by applicant

for F extension to apply for leave to appeal. Mnzavas, J.K. dismissed the application.

In the Court of Appeal, Mr. Jadeja for the applicant, filed Notice of Motion for an

extension of time for an application for leave to appeal and for leave to appeal. G

The Court of Appeal dismissed both applications with costs.

Held: Leave to appeal, which was necessary in the present matter, has to be sought

within fourteen days of a decision. Under Rule 43 of the Court of Appeal Rules, such

H leave may be applied for informally. This informal application must be made when

the decision against which it is desired to appeal is given. Categories of explicable

inadvertence causing delay to make an application do not include ignorance of

procedure, or blunder by counsel.

Case Information

Both applications dismissed. I

1989 TLR p6

MAKAME JA

Jadeja for applicant. A

[zJDz]Judgment

Makame, J.A.: This application arises out of a dispute over a piece of land, Plot No. 22

Vingunguti Industrial Area in the City of Dar es Salaam, allocated at various times to

the applicants, Metal Products Ltd., and to another company Globe Tiles (T) Ltd. The

B applicants unsuccessfully applied before Msumi, J. for orders of Certiorari and

Prohibition, challenging the acts of the present respondents who had purported to

acquire the plot that had been allocated to the applicants and had it re-allocated to

Globe Tiles to whom it had allegedly been allocated at first. C

The applicants were dissatisfied with the decision of Msumi, J. which he made on

11th August, 1987 and seven days later Miss R.H. Sheikh, who was appearing for the

applicants, filed a Notice of Appeal against the said decision. Thereafter an application

D was made on 23/9/87, for an extension of time to apply for leave to appeal. This

was heard by Mnzavas, J.K. and on 26th July, 1988 he dismissed the application.

The Notice of Motion now before me, filed by Mr. Jadeja, learned advocate for the

applicants and resisted by Mr. Warema, learned State Attorney on behalf of the E

respondents, is for an extension of time for an application for leave to appeal, and for

leave to appeal. Mr. Warema has urged that the application for leave is incompetent

as it ought first to have been made to the High Court as is required under Rule 44 of

the Tanzania Court of Appeal Rules, and none was made. He also submitted that Miss

F Sheikh's ground - inadvertence - was properly held by the High Court as not

amounting to sufficient reason for the delay.

Leave to appeal, which was necessary in the present matter, has to be applied for

within fourteen days of the decision. Mr. Jadeja is perfectly right under Rule 43 such

G leave may be applied for informally. This informal application must be made

"when the decision against which it is desired to appeal is given".

Miss Sheikh sought to persuade the High Court that she did tell Msumi, J. that she

intended to appeal. Mnzavas, J.A. was not impressed: He said that the record did not

H bear her out. Mr. Jadeja has submitted that it is possible the learned J.K. was misled

by the cycostyled copy of Msumi, J.'s Judgment (which did not indicate what Miss

Sheikh had said - that "We give Notice of Appeal to Court of Appeal"). Looking at

Annexure A in support of Miss Sheikh's affidavit in the present Notice of Motion it is

I clear that Mr. Jadeja is obviously right - Miss Sheikh did indicate her intention

1989 TLR p7

MAKAME JA

to appeal, whether as Mr. Warema says, she was weeping in the process; or not. But

A what was the effect of this? Was Rule 43 complied with? Mr. Jadeja submitted

thus:

contend an informal application - 'I apply for leave to appeal' - whatever the

words - would B refer to leave to appeal, No informal application for Notice to

appeal is necessary.

Of course Mr. Jadeja is right again, but only as far as he goes. "Whatever words" used

in clear connection with the application for leave to appeal - Yes - but not any words.

C "Whatever words", without the qualification indicated is too wide a proposition.

What Miss Sheikh did on 11th August, 1987 was to indicate her intention to appeal,

which she was free to do, and indeed she made good her word when she filed her

Notice on 18th August 1987. How from what transpired in the presence of Msumi, J.

Miss Sheikh was able to assume that leave was granted I find utterly startling. Why D

should she make such an assumption? Part of para 10 of Miss Sheikh's affidavit goes

thus:

Mr. Justice Msumi delivered the judgment on 11th August, 1987 and I

immediately told the E learned judge that I wanted to appeal. There was no

objection coming from counsel for the Respondents and I saw the learned judge

writing down something which I assumed to be the granting of leave to appeal. In the

sure knowledge that I had been allowed to appeal I F proceeded to file the annexed

Notice of Appeal ...

With the greatest respect, such 'sure knowledge' was baseless and ill-founded.

Mr. Jadeja furnished me with a formidable list of authorities - indication of his usual

G industry - and ably took me through some of them: From Gatti v Shoosmith, right

up to I.F.M. F. Simon Manyaki. They show the evolution of thought - from special

cause to sufficient reason - and the courts' persistent dislike to have their discretion

fettered in these matters. We still have to consider - whether there was sufficient

reason for the H delay in taking the steps Miss Sheikh should have taken. The delay

must relate to the period right from the time Msumi, J. delivered his judgment, not

just from the time Miss Sheikh says she discovered her blunder. Quite frankly, the

reason here is Miss Sheikh's ignorance of the procedure, or her blatantly unwarranted

and erroneous assumption I that she had been

1989 TLR p8

granted leave. This is outside the category of explicable inadvertedness and cannot be

A condoned. Otherwise the rules would be pointless - they were made to be followed

and their broken can only be excused if sufficient reason is shown.

I respectfully agree with Mr. Jadeja, and I find support for this even in the ruling by

the B learned J.K. himself, that there were in effect two applications made to the

High Court - for leave and for extension of time. In the particular circumstances of

this case Mr. Jadeja has a point that the refusal to extend time was in substance refusal

to grant leave also. Mnzavas, J.K. did make reference to the application for leave. For

myself, I C am not persuaded to hold that it is just what leave should be granted. The

record shows that on 30th June, 1987 Miss Sheikh merely asked for more time in

which to prepare herself and that she also prayed for leave to file and reply to the

respondents' counter affidavit as she had discovered some facts which were not

pleaded in her D affidavit. She did not indicate the subject matter of her discovery.

Her application was dismissed. She should have researched for her case more carefully

in the first place. Some of the things she is now alleging in her affidavit could not be

considered by the Court of Appeal without calling for additional evidence, nor have I

the means to know E the truth or otherwise of them at this eleventh hour. In the

exercise of my discretion I refuse to grant leave to appeal and I have indicated why I

also feel, though for rather different reasons, why I also would not allow the

application to extend time.

F Order accordingly.

1989 TLR p8

G