A Kisanga, Ramadhani and Mnzavas, JJ.A.: There is before us an appeal from the decision of the High Court (Munuo, J. (Mrs.)) dismissing the appellant's claim for damages for breach of a building contract. The appeal was accompanied with an application for extension of time to lodge the appeal, as the appeal had not been lodged within B 60 days of giving the notice of appeal as required by rule 83 (1) of the court of appeal Rules. After the application was filed the respondent, with the knowledge of it, proceeded to file a counter application seeking to have the appeal struck out "on the ground that no order for extension of time to institute the appeal was obtained". When the C appeal was called on, we had to deal with this application first. Mr. B. Lobulu appeared for the appellant while Mr. F.S. Kinabo was for the respondent.
In the course of hearing the applications, Mr. Lobulu submitted that when he filed the notice of motion seeking leave D to lodge the appeal out of time, it was improper for the other side, with the notice of such application, to react by filing a counter notice of motion seeking to have the appeal struck our for want of leave to lodge it out of time, the very short fall which the appellant's application sought to remedy. We think that Mr. Lobulu is right. The course E adopted by the respondent is prone to lead to unnecessary multiplicity of actions and confusion. As suggested by the learned counsel, if the respondent wished to challenge the application, the proper thing to do here was to file a counter affidavit. That would not only avoid confusion and multiplicity of actions, but would also make the proceedings neat and orderly.
F We shall now turn to the merits of the appellant's application. But the appellant and his advocate each filed an affidavit in support of the application. The main points as disclosed by the two affidavits are as follows: The judgment being appealed from was given on 20.10.87. The request for documents for the preparation of the record G was made on 29.10.87 and the said documents were received by the appellant's counsel on 23.9.89. Mr. Lobulu contends that on receiving the documents he could not proceed to lodge the appeal as he was unable to obtain instructions from the appellant who had left for Yemen and Saudi Arabia on 24.3 .89 for purposes of medical H treatment, among other things, and did not return until 11.3.90. The appellant went to see him on 23.3.90 only to find the he (Mr. Lobulu) had travelled out of the country. Mr. Lobulu was back in his office on 9.4.90 and that is when he advised the appellant to pay the fees in Court for the lodging of the appeal. That is to say the appellants filed the appeal over six months after his advocate head received the documents for preparation of record of the I appeal.
KISANGA JJA, RAMADHANI AND MNZAVAS JJA
Mr. Lobulu's notice of motion for the extension of time is brought under rule 8 of the court appeal rules. That rule A says:
The Court may for sufficient reason extend the time limited by those Rule or by any decision of the court or of the High Court for the doing of any act authorized or required by these rules, whether before or after the doing of the act, and any B reference in these Rules to any such time shall be construed as a reference to that time as so extended.
Mr. Kinabo, opposing the application, submitted that the application was wrongly brought under rule 8 of the Rules. C He argued that rule 8 was applicable only where there was an appeal before the Court but in his view there was no appeal here because the appellant had obtained no leave to institute it. He strenuously contended that the appellant's purported appeal was misconceived and incompetent and should therefore be struck out. In support of D the contention he referred to the ruling of this Court in the case of Arusha International Conference Centre v Damas Augustine Ndemansi Kavishe. Civil appeal No. 34 or 1988 (Unreported). That was the substance of his counter notice of motion.
It appears, however, that the submission by the learned counsel is with due respect, somewhat misguided. In the E context of the present case rule 8 as reproduced above is saying that if the appellant failed to lodge his appeal within 60 days after filing his notice of appeal, as required under rule 83 (1), he can apply to the court for leave to do so F out of time. And this is precisely what the appellant has done. He failed to lodge the appeal within the time limit of 60 days, and he is now asking the court to enlarge that time. Mr. Kinabo's submission that the appeal is incompetent because no leave was obtained to institute it is necessarily self defeating because it ignores or G overlooks the fact that there is already before the court the appellant's application for leave to lodge that appeal out of time.
Nor is it correct to argue, as Mr. Kinabo did, that there is no appeal before the Court. The record shows that the appeal was lodged in the sub-registry at Arusha on 12.4.90. That, admittedly, did not institute the appeal. But since H the appellant had given notice of appeal within the prescribed time limit then the process of appeal had commenced. That is to say, there was a proceeding before the court, and the present application is made in pursuance therefore. We should add, for the sake of completeness, that if the present application for leave is I granted, such leave would operate retrospectively and the appeal would be deemed
KISANGA JJA, RAMADHANI AND MNZAVAS JJA
A to have been duly lodged on 12.4.90 in which case it would not be necessary to lodge it a second time.
Kavishe's case cited by Mr. Kinabo is easily distinguishable from the present one. That case dealt with a situation B where the intended appeal was lodged within the prescribed time but the appellant had failed to extract the decree being appealed against and to make it part of the record. Following a series of previous decisions of this court and of its predecessor, we held that the appeal was incompetent and we struck it out accordingly. But in the instant case we are at a different stage of the appeal. We are at the stage where the appeal is not yet lodged; the time for C lodging it has run out and the appellant is seeking leave to lodge it out of time. At this stage the question whether or not the decree has been extracted, and if not what are the consequences, does not fall for consideration yet. It does so only after the leave is granted, if at all, and the appeal is duly lodged. We are therefore satisfied that the D application was properly bought under rule 8 of the Court of Appeal Rules.
Mr. Kinabo's other ground for resisting the application was that no sufficient reason, in terms of rule 8, is shown for granting extension of time. There is merit in this submission. The appellant's main contention was that the delay in E lodging the appeal was caused by his absence from the country at one time, and also by his advocate's indisposition and temporary absence from the county at another time after he himself had returned into the country. The claim, however, is entirely without merit. The appellant travelled to Yemen and Saudi Arabia for the purposes of medical treatment, among other things. But he was not hospitalized there. His medical cards show that he attended only as F an outpatient, reporting at the hospital at intervals of up to four months, which means that he was not seriously sick. As such there was nothing which prevented him from inquiring about the progress of his appeal either directly from the Court or through his advocate when he had duly instructed to rule the notice of appeal and to request for Gdocuments for preparation of the record. His indolence is further demonstrated by the fact that upon his return to the country, he did not go to see his advocate promptly; he did so only after some eleven or twelve days. His claim that he was convalescing during this period is baseless in view of the fact that he was not hospitalized at any time H and was not seriously sick. His advocate's indisposition and temporary absence from the country cannot help him either. His own advocate when arguing this application disclosed that his indisposition started on 25.11.89, which is over two months after he received from the Court the documents for preparation of the record. That provided more I than ample time during
which he could have informed his client of his receipt of the same and ask him for further instructions in the matter, if A any.
Mr. Lobulu further contended that the appeal had overwhelming chances of success, that the appeal was already filed, that the court should not enforce the rule strictly so as to deny justice to the appellant and that if the application is granted, no prejudice would be caused to the either side. We think that these matters do not advance the B appellant's case anywhere. This is a case involving an inordinate delay in lodging the appeal. The appellant has a duty to explain such inordinate delay but he has not. We think that the matters now being put forward by counsel might have been relevant if the appellant explained the inordinate delay but since he has failed to do so, we do not C think we are obliged to consider them.
We therefore uphold Mr. Kinabo's submission that no sufficient reason, in fact no reason at all, is shown for the delay, and hence for granting the leave sought to lodge the appeal out of time. The application is accordingly D dismissed with costs.
Appeal dismissed.
E
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