Makame, J.A.: This is an application for extension of time within which to institute an appeal, brought by Cosmas Construction Company Limited represented by Mr. Maira, learned advocate. It is being resisted by Dr. Lamwai, learned counsel, on behalf of the I respondent Company, Arrow Garments Limited.
The applicant was one of three respondents in the High Court in Misc. Civil Cause 54 A of 1989 in which the respondent alleged that it had been defrauded of a plot of land by one of its directors, one Kunda Isai Mwasha, the second respondent, who in turn sold it to the present applicant, then the third respondent. In the High Court the present B respondent petitioned for rectification of the Land Register under section 99(b) of the Land Registration Ordinance, Cap. 334, so that the memorial entered in favour of the present applicant is struck out.
The second respondent in the High Court, Kunda Isai Mwasha, evidently central in the C whole situation, made some effort to resist the Petition but eventually he left matters mid-air. According to the record, the applicant simply did not bother. Going by an endorsement on the summons, returnable on 15th July 1989, the applicant refused to accept service and thereafter, throughout the proceedings, never appeared. Proof D against the applicant was therefore ex-parte and the hearing closed on 25th June 1991. By then, or thereafter, the learned trial judge, Masanche J. was stationed out of Dar es Salaam and he composed the judgment at Musoma on 1st August 1991. It was delivered in Dar es Salaam by Kaijaga, Ag. SDR, on 17th October 1991. According to E the Coram for that day Dr. Lamwai was there, for the applicant, and Mrs. Sinda or Pinda was present "for the 4th Respondents", (Sic). This does not make sense at all, for there was never a fourth respondent at any stage and so the record fails to contradict the applicant's contention that the judgment was delivered in his absence. F
Dr. Lamwai has submitted before me that the High Court had no obligation to notify the applicant of the date when judgment was going to be delivered. With respect, that view cannot be correct. A party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte, but that is the farthest G extent he suffers. Although the matter is therefore considered without any input by him he is entitled to know the final outcome. He has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow. H
In the present matter the applicant was not present and there is no proof that he was served with a copy of the Notice of Judgment dated 7th October 1991.
On the other hand, and quite seriously, the applicant has held back information he I should have supplied if he really wanted to have time extended. Just as he did not quite come out and say in so
many words that the proceedings were ex-parte - he said, instead, he was A unfortunately absent - he does not say when he eventually got to know that the judgment had been delivered. Both Mr. Subash Patel's affidavit and Mr. Maira before me were conveniently silent on this vital aspect of the matter. Judgment was delivered on 17th October 1991. The Affidavit in support of the motion was not sworn until 17th March B 1992. How can one know how long the applicant kept quiet after knowing the outcome? How can I agree that the applicant could not have instituted an appeal because he 'could not have complied with Rules 76, 77 and 83' - the Rules which impose time - scales? Mr. Maira is an experienced lawyer and it is difficult to see how C he could have expected his client to have time extended without disclosing when he got to know of the existence of the judgment. It is not possible to gauge the extent of the delay.
I am unable to hold that sufficient cause for the delay has been established and so I dismiss the application, with costs. D
Application dismissed.
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