Tanzania Tailors v. Keshvaji Lalji Civ. App. 4-D-69; 18/6/70; Makame, Ag. J.

Tanzania Tailors v. Keshvaji Lalji Civ. App. 4-D-69; 18/6/70; Makame, Ag. J.

The applicant sought leave to appeal to the Court of appeal for East Africa, and out of time, from the judgment of the High Court which reversed the decision of a resident magistrate who held that he had no power under section 19(5) of the Rent Restriction Act to vacate the order for possession made in Dar es Salaam District Court Civil Case No. 3159 of 1966. It was submitted by the applicant that the reason for the delay was that when the judgment of the High Court was delivered on the 5^th of September 1969 [the counsel] for the application informally applied for leave to appeal, and instead of granting or refusing the application the learned Judge directed that the application should be made to another Judge of the High Court. About a week later [the Counsel] was informed by a registry clerk that on the day following the delivery of the judgments the learned Judge had directed that all the relevant files should be placed before him so that he might record that he had granted leave to appeal. As the result of this the counsel assumed that leave had been granted. So he did not formally apply for leave within the prescribed period. About a month later he discovered that in fact leave had not been granted by the learned Judge. The respondent argued that the appellant lacked in diligence and vigilance otherwise he would have known the true position before the expiry of the time limit and in any case the affidavit did not disclose the nature of the case, and furthermore the application should have been filed before a Judge of the High Court rather that before a single Judge of the Court of Appeal.

            Held: (1) “Before an application like this can be allowed it has to be shown that there was a sufficient reason for failing to do what ought reasonably to have been done. Prudence and vigilance should have alerted the learned advocate, and ordinary diligence should have made him seek confirmation from the registry officer that the Judge had indeed changed his mind. I take judicial notice of the fact that the learned Judge, who was Duff J., left the country for good on 6^th September 1969, the day he is supposed to have changed his mind and granted the application. When (the counsel) visited the Registry a week later he must have known that Duff J. had finally left the country so that if he had granted the application and duly endorsed the file, perusal of the record then would have confirmed the clerk’s claim. Instead the learned advocate assumed that all was well, and it was not until after the prescribed period had expired that he discovered, by accident as it were, that leave had not been granted. Quite clearly it cannot be said that the Court was to blame, and, with genuine respect, I feel certain that if the learned advocate had been less indolent and defervescent he would have easily discovered the true position and avoided the unhappy delay. As it is, time having expired, the successful party must have assumed that the fight was over, and unless sufficient reason is shown, which it has not been, it would be unfair to dislodge him from his seat of victory.” (2)”….. I am unable to agree with (the counsel for the respondent) that the application does not disclose the nature of the case. I am satisfied that paragraph 9 and paragraph 10 [the] affidavit, read together with, and in the context of, this application, sufficiently set out the nature of the case such as is necessary to assist the Court in reaching a decision. As to the submission that the notice has been filed before the wrong Judge, or, rather, before the Judge in the wrong capacity, I think [the counsel] proceeds under a misapprehension. Section 23 deals with application for leave to appeal only. This does not cover the present situation in which he seeks an extension of time as well. I am clear in my mind that section 9 is the law applicable and that ‘the Court’ mentioned therein must refer to the Court of Appeal (and so to a single Judge) as opposed to ‘the superior Court’ which must mean the High Court. In my case I frankly would not hold that the procedural distinction would be material enough to affect the substance and merits of the application.” (3) Application dismissed.