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. D

-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.

1984 TLR p147

MUSTAFA JA

A 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.

1984 TLR p148

However this application has to be dismissed, and we so dismiss it with costs. A

Application dismissed

1984 TLR p148

B