Foreign Mission Board of the Southern Baptist Convention v Alexander Panomaritis [1984] TLR 146 (CA).

FOREIGN MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION v ALEXANDER PANOMARITIS 1984 TLR 146 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Makame JJA and Kisanga JJA

June 29, 1984

CIVIL APPLICATION 4 OF 1984 B

Flynote

Civil Practice and Procedure - Court of Appeal Rules - Notice of appeal, application for leave to appeal and application for a certified copy of the proceedings of the High Court filed within prescribed time - C Inordinate delay by the Court to furnish respondent with a copy of proceedings - Application to strike out notice of appeal due to the delay to prosecute the appeal - Whether application may be granted -Rule 82 of the Rules of the Court of Appeal, 1979. 

 -Headnote 

The respondent filed a notice of appeal, an application for leave to appeal and an application for a certified copy of the proceedings of the High Court within prescribed time. However there was inordinate delay by the High Court to furnish him with a copy of the proceedings. This prompted E the applicant to file a notice of motion to strike out the notice of appeal on the ground that the respondent had failed to institute and prosecute his appeal. Held: Since the inordinate delay in furnishing a certified copy of the proceedings of the High Court F cannot be blamed on the respondent no cause of action existed on his part to bar him from instituting and prosecuting his appeal. Case Information Application dismissed. G No case referred to F.H. Uzanda for the applicant T.J.R. Tarimo for the respondent [zJDz]Judgment Mustafa, J.A. gave the following ruling of the court: This is an application by the applicant to strike H out the notice of appeal filed by the respondent arising from a civil revision matter No. 9 of 1980 in the High Court. The notice of motion to strike out alleged that no appeal lies or that essential steps in the proceedings have not been taken or taken within the prescribed time, in terms of the I provisions of Rule 82 of the Rules of the Court of Appeal. 

The order of the High Court was made on 26.5.1981. The respondent filed a notice of appeal within 6 days of the ruling, an application for leave to appeal within 9 days and for a certified copy of the proceedings of the High Court within 10 days. All those steps were taken well within the prescribed time. B However up to 1.2.84 when the appliction to strike out was filed, no record of appeal had been filed, and Mr. Uzanda for the applicant submitted that the inordinate delay was and must have been due to the failure of the respondent to take steps to institute and prosecute his appeal within the C prescribed time in terms of Rule 83 of the Court of Appeal Rules. For the failure of the respondent to take proper and effective steps to institute and prosecute his appeal, the applicant asks for his application to strike out to be granted. Mr. Tarimo submitted that the proceedings copy was not available for collection by him until 11.2.84 D when he was informed by the court that the proceedings were ready for collection, and he collected the copy of proceedings on 16.2.84. In his affidavit he referred to a meeting with the Chief Justice in which Mr. Uzanda was also present on 21.11.83 when the Registrar of the High Court was E directed by the Chief Justice to provide the respondent with a copy of the proceedings as soon as possible. We are satisifed, that for reasons beyond the control of the respondent, the copy of proceedings was not ready for collection until 11.2.84. The court must bear the blame for this long and F unexplained delay in furnishing a certified copy of the proceedings.  

There was a letter on the court record from the Registrar to the respondent dated 10.2.84 which excluded the days (over 900 odd days) taken for the preparation of the copy of proceedings. In view of that letter the respondent had 60 days from 20.2.84 to file his record of appeal, i.e. by about 20.4.84. G When the application to strike out was filed on 1.2.84, the respondent could not be blamed for the delay, as the court up to that date was unable to furnish him with a certified copy of the proceedings. In our view, the application was filed prematurely, as on the 1st February, 1984, no H cause of action existed for any delay on the part of the respondent to institute and prosecute his appeal. We are not concerned with the situation after the furnishing of the certified copy of the proceedings to the respondent in this application. That will no doubt be dealt with when the matter arises for I decision. However this application has to be dismissed, and we so dismiss it with costs.

Application dismissed

1984 TLR p148

B