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Monday, 4 November 2019

GROUNDS FOR EXTENSION OF TIME IN CIVIL CASES


The legal system in Tanzania allows the court to extend the time for exercising several legal rights when a person is time-barred. However, it is well settled that the court may only extend the time when sufficient reasons of delay have been shown by the applicant.  In the case of REGIONAL MANAGER, TANROADS KAGERA vs. RUAHA CONCRETE COMPANY LIMITED- CIVIL APPLICATION NO. 96 OF 2007- COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM explained what amount to sufficient reason. The court stated that “What constitutes “sufficient reason” cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court material which will move the Court to exercise its judicial discretion in order to extend the time limited by the rules:”  Here is the compilation of the cases on the subject above. These cases demonstrate what amount to sufficient reason and what does not amount to sufficient reason.

The legal system in Tanzania allows the court to extend the time for exercising several legal rights when a person is time-barred. However, it is well settled that the court may only extend the time when sufficient reasons of delay have been shown by the applicant.

In the case of REGIONAL MANAGER, TANROADS KAGERA vs. RUAHA CONCRETE COMPANY LIMITED- CIVIL APPLICATION NO. 96 OF 2007- COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM explained what amount to sufficient reason. The court stated that “What constitutes “sufficient reason” cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court material which will move the Court to exercise its judicial discretion in order to extend the time limited by the rules:”
Here is the compilation of the cases on the subject above. These cases demonstrate what amount to sufficient reason and what does not amount to sufficient reason.



SAMSON KISHOSHA GABBA v CHARLES KINGONGO GABBA 1990 TLR 133 (HC)

Facts
The appellant filed an application at Kakoro Primary Court, in Ngudu, for him to be appointed administrator of estate of his deceased father Gabba Mpondamali. In his application he claimed that the two houses on plots No. 125 and No. 33 Block A, in Ngudu Township belonged to him (applicant) and not the deceased, though the said plots were in the name of the deceased. The respondent on behalf of other members of the family filed on the objection  in court against the appointment of the appellant as administrator. The trial court was satisfied and found candidates unfit for the job and instead, the court-appointed the Ward Secretary of the area to be the administrator of the estate. In addition, the court did two things: First, it held that the houses on plots No. 125 and No. 33 block A in  Ngudu township belonged to the deceased and not the appellant. Second, the Court distributed the property of the deceased to his children. The appellant, after his attempt to file an appeal out of time, was rejected, filed on an application for leave to appeal to the District Court out of time. The District Court rejected the application on the ground that no reasonable ground for the delay was shown. He appealed to the High Court.
  
Held
In determining whether or not to allow an application for leave to appeal out of time the court has to consider reasons for the delay as well as the likelihood of success of the intended appeal;
           

FELIX TUMBO KISSIMA v TANZANIA TELECOMMUNICATION CO LTD AND ANOTHER 1997 TLR 57 (CA)  

Facts
The applicant applied for leave to file his appeal out of time. It appeared that the applicant had lodged the notice of appeal in time and had engaged an advocate to pursue his appeal. The advocate, apparently mixing politics and the legal profession, had failed to pursue the appeal and in fact, lied to his client.

Held
The applicant had given sufficient reasons for delaying in lodging the appeal.  

UMOJA GARAGE v NATIONAL BANK OF COMMERCE 1997 TLR 109 (CA)  

Facts
The applicant applied for an extension of time to file a notice of appeal. The same application had been made before but had been refused. There had been two sets of proceedings in the matter and the applicant, who was aggrieved by the outcome of the proceedings, wished to prosecute the appeal and sought copies of the proceedings. The Registrar supplied a certificate of exemption for the one case but not the other and counsel used the incorrect certificate in the attempt to save the purported appeal in the present case which was long time-barred.    

Held
  1. It was clear that the error had been committed by the applicant's counsel and the Registrar could not be held blameworthy;
  2. In the circumstances, no sufficient cause had been made out for enlarging the time as prayed.

 MICHAEL LESSANI KWEKA v JOHN ELIAFYE 1997 TLR 152 (CA)  

Facts
The applicant applied for an extension of time within which to serve a copy of a notice of appeal and a copy of his letter to the Registrar applying for proceedings in the case. It appeared that the advocate's clerk had, through inadvertence, failed to serve the two documents on the respondent's advocate. 

Held
  1. The Court had power to grant an extension of time if sufficient cause had been shown for doing so;
  2. In the instant case, the applicant had shown reasonable diligence in correcting the error immediately upon discovery and this conduct warranted consideration for enlarging the time in his favor.



FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 154 (CA)  

Facts
The applicant applied for an extension of time within which to file the appeal. The application was opposed by the respondent.

Held 
A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal. In these circumstances, an extension of time ought to be granted.  

 WILLIAM SHIJA v FORTUNATUS MASHA 1997 TLR 213 (CA)

Facts
The respondent had been granted an extension of time by the Court of Appeal within which to file an appeal after his appeal had previously been struck out on the ground that it was incompetent for not having the extracted order attached. The single judge of the Court of Appeal held that the delay on the part of the respondent had been technical and not actual and that the original appeal, though incompetent, had been lodged in time. In the present reference, the applicant contended that the application ought not to have been granted because it lacked the requisite notice of intention to appeal as with the striking out of the appeal the notice of appeal had also disappeared.

Held    
  1. The applicant was correct in contending that when the appeal had been struck out the notice of appeal was also struck out: in that situation if a party still wished to appeal a fresh application had to be filed in the High Court seeking extension of time in which to give notice of appeal;
  2. In determining whether the application should nonetheless be granted, the court took into account that counsel had been negligent in adopting the correct procedure and this could not constitute sufficient reason for the exercise of the court's discretion.


INSPECTOR SADIKI AND OTHERS v GERALD NKYA 1997 TLR 290 (CA)

Facts
The applicants were the respondents in an action for malicious prosecution in the High Court in which judgment was given against them. The applicants filed a notice of appeal within 6 days of the  judgment having been granted but the respondent was neither served with a copy of the notice of appeal nor a copy of the letter requesting copies of the proceedings. It appeared that the applicants reacted only some 40 days after they became aware of the omission.


Held
The cause of the delay in the present case was the error of the applicants. These circumstances did not constitute `sufficient reason' for the purposes of Rule 8.

HELEN JACOB v. RAMADHANI RAJABU 1996 TLR 139 (HC)

 Facts
The Applicant, having lost her case in the Primary Court of Magomeni failed to appeal its decision within the statutory thirty-day period. Her application to the District Court for leave to appeal out of time was dismissed. She presently appeals against that decision.
Held
The fact that The applicant was busy complaining to the CCM and the Minister for Home Affairs is not sufficient reason for extending the time allowed for   noting an appeal and does not constitute any explanation for failing to appeal in time.

COSMAS CONSTRUCTION CO. LTD v ARROW GARMENTS LTD 1992 TLR 127 (CA)

Facts
This was an application, by the applicant company, for extension of time to institute an appeal. The proceedings giving rise to this application were heard by the High Court in the absence of the applicant, the applicant has refused to accept service of summons. It was in evidence that the applicant was not given notice of judgment. On appeal, it was submitted by counsel for the respondent that the High Court had no obligation to notify the applicant of the date when the judgment was going to be delivered. In his application for extension of time, the applicant said that he was not given notice of judgment but did not disclose when he got to know of the existence of the judgment.

Held
A party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte, but 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;
Without disclosing when the applicant got to know of the existence of the judgment it is not possible to gauge the extent of the delay. No sufficient cause for the delay has been established. 

SHEMBILU SHEFAYA v OMARY ALLY 1992 TLR 245 (CA)


Facts
The applicant who lost an appeal in the High Court delayed filing his notice of appeal within the prescribed 14 days period. Then he filed an application in the High Court for extension of time to file a notice of appeal. The application was dismissed because "ill health without elaboration cannot amount to a good reason...." Aggrieved by the decision of the High Court the applicant appealed to the Court of Appeal

Held
No sufficient reason has been given for the delay. 

 MARTHA DANIEL v PETER THOMAS NKO 1992 TLR 359 (HC)

Facts
The applicant lost an appeal in the District Court. Instead of filing her petition of appeal in the District Court the applicant filed the petition of appeal directly in the High Court in contravention of the procedure stipulated in section 25(3) of the Magistrates' Courts Act, 1984. The High Court struck out the appeal which was not properly before it. When the applicant wanted to file the appeal according to the laid down procedure it was discovered that time for so filing had ended. It was, thus, necessary to apply for an extension of time to file the appeal. One of the reasons advanced was that the applicant was a layperson who did not know the rules.

Held
A plea by a layperson that he be allowed to file an appeal out of time in an appropriate court an appeal which was struck out or is voluntarily withdrawn from the High Court because it had been wrongly filed there, but timely constitutes a sufficient reason.

RAJABU KADIMWA NG'ENI AND ANOTHER v IDDI ADAM 1991 TLR 38 (HC)

Facts
This was an application for leave to appeal out of time.  The delay was slight, about a week.  The Court considered the prospects of success of the intended appeal in order to grant the application or otherwise.

Held
Since the intended appeal has absolutely no chances of success the application must fail.


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