SALUM SURURU NABHANI v ZAHOR ABDULLA ZAHOR 1988 TLR 41 (CA

 

SALUM SURURU NABHANI v ZAHOR ABDULLA ZAHOR 1988 TLR 41 (CA)

Court Court of Appeal of Tanzania - Zanzibar

Judge Makame JA

6th May, 1988

Flynote

Civil Practice and Procedure - Appeals - Application for leave to appeal - Notice filed

out of D time - No sufficient reason for delay shown - Rule 8 of Court of Appeal

Rules 1979.

Court of Appeal Rules -Appeals - Application for leave to appeal - Notice filed out of

time - No sufficient reason for delay shown - Rule 8 of Court of Appeal Rules 1979.

E

Civil Practice and Procedure - Judgment - Who may receive judgment.

-Headnote

The applicant had attended court proceedings until the last hearing date. After the

court F had informed the parties that judgment would be delivered on a specified

date, about two months later, the applicant who was the respondent in the case left

for Oman. He was still in Oman on the date of judgment which was received on his

behalf by another person who offered no proof that he had been sent by the

applicant. The judgment was delivered against the applicant. The applicant went back

to Zanzibar about 3 weeks after G the judgment. Dissatisfied he sought to appeal but

was well out of time. He applied for leave to appeal out of time.

Held: (i) In order to receive judgment for another person, the receiver need not have

H power of attorney; it would be enough if the representative can produce any

convincing proof that he was sent and authorised by the party concerned to receive

judgment on the latter's behalf;

(ii) the applicant has failed to advance sufficient reasons to justify leave to file

I appeal out of time.

1988 TLR p42

MAKAME JA

Case Information

A Application is dismissed.

[zJDz]Judgment

Makame, J.A.: This application arises from a transaction in a financial culture I found

interesting. The applicant, resident in Pemba, borrowed from the respondent, in

Zanzibar, B various sums of money for each of which he issued what was described

as a warka, pledging some of his date trees in Muscat. Thereafter the applicant kept on

issuing warkas to other people pledging more trees so as to raise more and more sums

of money. That complicated matters for the respondent, who eventually had to file a

suit in C the High Court of Zanzibar to recover shs. 300,000/=. The sum prayed for

was duly awarded to the respondent in a judgment delivered by the learned Chief

Justice on 16/10/86. On that day the applicant was not in court, but, according to the

record, one Abbas Nada Hija, who said he and the applicant were married in the same

family, D received the judgment, "k.n.y. Mdaiwa" - on behalf of the defendant.

On 17th December, 1986, that is over two months later, the applicant swore an

affidavit to say that he was away in Oman when the judgment was delivered and did

not return to E Zanzibar until 6th November, 1986. He came to know of the

existence of the judgment only when he was called to the High Court on 15th

November, 1986. Two days later he filed a Notice of Appeal but was advised that he

was already out of time.

F At the hearing of this application Mr. Lipiki, learned advocate, represented the

applicant, while the respondent appeared in person. Mr. Lipiki submitted, in effect,

that the Notice itself was in fact in time because the applicant did not know, and

could not have known, of the judgment until on 15th November, 1986. Mr. Lipiki

said that the man Abbas Nada Hija was not the applicant's representative, as he had

no power of G attorney, and had no business to receive judgment on behalf of the

applicant. In reply the respondent, unrepresented as he was, had nothing of moment

to say, only that he was wondering what this application was all about, when the

applicant had admitted liability and had in fact paid the money.

H I would not go as far as saying that to receive a judgment on behalf of another one

would necessarily need a power of attorney, as Mr. Lipiki submitted. He was not able

to refer me to any authority. In my view it would all depend on the circumstances

and, ordinarily, it would be enough if the representative can produce any convincing

proof that I he was sent and authorized by the party concerned to receive judgment

on the latter's behalf. In the present case, however,

1988 TLR p43

MAKAME JA

Hija is shown in the coram as being "k.n.y. Mdaiwa" without any indication as to

where A that information came from. "Mdaiwa is mume mwenzangu" seems to be

the answer to the only question Hija was asked; and that information, per se, even if

true, does not make Hija authorized and entitled to receive judgment on behalf of the

applicant. I am satisfied that Mr. Lipiki's submission on this is quite sound, and I

would have allowed the B application if there was no other factor to be considered.

There is however another factor I have to take into account, and it is this: Going by

the record, the parties were both present in court, on 25/7/86, when the hearing was

concluded and the case was adjourned for judgment on 16/10/86. The judgment was

delivered on the appointed day, C 16/10/86, and if the applicant chose to be away in

Oman Arabia, or any other place, and absent from the court, it was his duty to make

provisions for him to learn of the outcome of the case soon. It cannot do just to go

away and wait until one is called by the court. The Notice the applicant received from

the High Court, dated 8/11/86, said D "Madhumuni ya wito utaelezwa baada ya

kufika" and one is entitled to surmise, especially as, as far as record went, Hija had

already received the judgment k.n.y. the applicant, that the purpose was to make the

applicant pay up the decretal amount. If 15th November, 1986 was the day he came to

know of the judgment it was the result of his E own lack of diligence and he had

only himself to blame. The purported Notice on 17/11/86, if there was one, was

clearly out of time and I am not persuaded to hold that the applicant has advanced

any credible reason why I should exercise my discretion under Rule 8 to extend time

as prayed. F

This application is accordingly dismissed and the applicant is ordered to pay the

respondent's costs.

Application dismissed. G

1988 TLR p44

A