IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAM
CIVIL APPLICATION NO. 164 OF 2005
SAIDI ISSA AMBUNDA …………………………………… APPLICANT
VERSUSTANZANIA HARBOURS AUTHORITY ……………….. RESPONDENT
(Application for extension of time to file Notice of Appeal from the decision of the High Court of Tanzania at Dar es Salaam)
(Ihema, J.)dated the 27th day of February, 2004inCivil Appeal No. 42 of 2005
Date hearing of the matter was concluded: 28th March, 2006
Date Ruling was delivered: 4th April, 2006
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MUNUO, J.A.:
The applicant, Saidi Issa Ambunda, through the services of Mr. Ukwongfa, learned advocate, filed the present Notice of Motion under Rule 43 (b) and 46 of the Tanzania Court of Appeal Rules, 1979 seeking extension of time to file a Notice of Appeal and leave to appeal to this Court against the decision in Civil Appeal No. 42 of 1998 in the High Court of Tanzania at Dar-es-Salaam. The application is supported by the affidavit of the applicant. The respondent, Tanzania harbours Authority, was represented by Mr. Waziri Mchome, learned advocate.
A similar application was dismissed by the High Court as reflected in Annextures C and A. The applicant then filed Civil Application No. 31 of 2004 in this Court seeking extension of time and leave to appeal. The said application was struck out for lack of citation of the provision under which it was instituted. The applicant thereafter filed Civil Application No. 177 of 2004 which was also struck out because the affidavit in support of the said application was defective, thence rendering the application incompetent. Having been unsuccessful twice, the applicant filed this third application praying for extension of time and leave to appeal against the decision in Civil Appeal No. 42 of 1998.
Adopting the affidavit in support of the application, counsel for the applicant contended that the applicant lacked resources and skill to pursue the intended appeal within time so he should be allowed to appeal out of time. The intention to appeal, counsel for the applicant further contended, in manifested in his efforts to lodge the same application thrice.
Mr. Waziri Mchome, learned advocate, deponed to an affidavit in reply, stating that the applicant slept on his rights and failed to diligently exercise his right of appeal within time so the present application lacks merit and ought to be dismissed with costs. He further observed that even Civil Application No. 31 of 2004 was time barred by two days so it ought to be expunged from the record. Being devoid of merit, the present application should be dismissed with costs, counsel for the respondent urged.
The issue is whether there is sufficient ground for extending the period of filing a Notice of Appeal and for granting leave to appeal to this Court.
The applicantfs application for extension of time and leave to appeal, in the High Court, was time barred by three years. After carefully scrutinizing Annexture A and C to the Notice of Motion, I failed to extract a satisfactory explanation for the applicantfs inordinate delay to file a Notice of Appeal for three years. In this regard I find no sufficient reason for extending the period of limitation in this case. I find support in the case of Ratman versus Cumara Samy (1965) 1 WLR 10 at Page 12 wherein the Privy Council, in determining an appeal from Malyasia observed:
The rules of court must be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation.
In this case, I find no material upon which the Court can exercise its discretion in favour of the applicant. He has failed to satisfactorily explain the inordinate delay of three years to warrant extension of time. Under the circumstances, the application is lacking in merit. I accordingly dismiss the application with costs.
DATED at DAR-ES-SALAAM this 4th day of April, 2006.
E.N. MUNUOJUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )DEPUTY REGISTRAR
