Mnzavas, J.A., read the following ruling:
In a notice of motion under r 82 of the Court of Appeal Rules Mr Kashumbugu, C learned counsel for the applicant argued that the notice of appeal filed by the respondent be struck out, as it was argued it offends r 76(2) which says that notice of appeal should be lodged in court within 14 days from the date of the judgment. It was the learned counsel's submission that in the present case notice was lodged in the court's registry 15 days after the judgment, i.e. one day out of time. D
In rebuttal Mr Safari, learned counsel for the respondent conceded that the notice of appeal was lodged one day out of time. He, however, told the court that the notice was intended to be filed on 21 June 1994 but by an oversight it was filed on E 22 June 1994.
Mr Safari asked the court to exercise its discretion under r 3 of the Court of Appeal Rules and allow the notice of appeal to stand as it is only one day out of time.
In reply Mr Kashumbugu, learned counsel for the applicant countered that the F learned counsel for the respondent should have applied for extension of time to file his notice of appeal after he had learnt that he was already out of time instead of asking the court to invoke its powers under r 3 of the Court of Appeal Rules.
With respect to the learned counsel for the respondent this is not a proper case for the court to invoke its powers under r 3 of the Court of Appeal Rules even if that G rule could be called in aid of the respondent.
As it was held Ratnam v Cumarasamy and Another (1) at 935 -
'The rules of court must prima facie be obeyed and, in order to justify a court in extending time H during which some step in procedure requires to be taken there must be some material on which the Court can exercise its discretion. If the law were otherwise any party in breach would have an unqualified right to extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.' I
Mnzavas JA
A Rules are made to be followed. In the present case the respondent's delay in filing his notice of appeal was due to an oversight; this cannot be said with any stretch of the imagination to be a good reason for the court to exercise its discretion under rule 3 of the Court of Appeal Rules.
B I agree with Mr Kashumbugu's argument that the notice of appeal is incompetent and it is accordingly struck out as incompetent. The applicant to have his costs.
D
