Duncan v. Zanfra DRA. Civ. App. 1-A-70; 1/7/70; Bramble, J.

Duncan v. Zanfra DRA. Civ. App. 1-A-70; 1/7/70; Bramble, J.

The applicants sought for an extension of time to file a Record of Appeal. The substance of the application lay in paragraphs 8 and 10 of the affidavit which read: “Para 8:- That by my firm’s letter dated 26^th November, 1970 a request was made to Mr. H.K. Vohora to obtain an uncertified copy of the judgment which he obtained on 31^st December, 1969 and forwarded it to my firm on the same day. The copy of the judgment was received by my firm on 2nd January, 1970. after my firm had studied the judgment on 15^th January, 1970 it was forwarded with out comments to our client in Nairobi who received the copy of the judgment on 20^th January, 1970 and they in urn sent this copy to the Head Office of the Insurance Company involved in this matter in Bombay, India, who in turn instructed our clients by their letter of 5^th February, 1970 to obtain further advice for filing the appeal. These instructions were received by my firm on 23^rd February, 1970. Para 10 – that the record of the said case is extremely long and considerable time ant work is required to make copies of the said record.” The affidavit ended with a statement by the deponent that “what is stated above is true to my information, knowledge and belief.” The advocates for the respondent opposed the application inter alia on the grounds that: (i) the affidavit in support of the application was defective and no action could be taken on it; and (ii) the applicants were too dilatory to warrant the court’s exercising its discretion in their favour

            Held: (1) “It is a settled principle that where an affidavit is made on information it should not be acted on by any Court unless the sources of the information are specified. It is clear that in portions of the affidavit above that the deponent was stating acts which were to his knowledge and facts which were from information and since the sources of the latter were not given those facts would not be considered by the court. In the case of the National Bank of Commerce v. Shankerbhai Desai and others (1969) H.C.D. 206 it was held that, although an affidavit was defective, where there are facts properly deposed to on which the court could act it should do so. The facts relevant to the matter in issue, which are admissible, are that judgment in the case was delivered on the 24^th November, 1969; an application for an uncertified copy of judgment was made after a Notice of intention to appeal was filed and this was obtained on the 31^st December, 1969; that advocate’s comments were forwarded to the applicants on the 15^th January, 1970 and they gave instructions to appeal on the 23^rd February, 1970.” (2) “It is apparent that there has been so far no application to the court for a copy of the proceedings. From all indications the Record of Appeal will take some time to prepare and there is no guarantee that a copy of the proceedings could be obtained within any reasonable extension of time that could be granted. Assuming that he time taken to get the copy of the judgment and that taken by advocate to advices can be counted in the applicant’s favour there is no explanation for the delay between 15^th January and 23^rd February, 1970. A further 15 days were taken to file this application.” (3)” I have been reminded that “the object of including r. 9 in the rules of court is to ensure that the strict enforcement of the limitations of time for filing documents prescribed by the rule shall not result in a manifest denial of justice.”

The question of a possible denial of justice is therefore one of the considerations in applications of this nature. Where, however, an applicant is seeking the count’s indulgence he must show sufficient reason. I am not persuaded that a refusal to extend the time will result in denial of justice and the applicants have not shown sufficient reasons to warrant the court’s exercising its discretion in their favour.” (4) “The application is dismissed with costs.”