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R U L I N G
Topen Industries Ltd, the applicant, was the unsuccessful party in a passing off suit in which it was the defendant. Its earlier appeal against the decision was struck out as incompetent as certain essential parts of the proceedings before the trial court were omitted from the record of appeal.
In the application before me the applicant seeks an order extending the time within which to file and serve a fresh notice of appeal and a record of appeal. The application was brought under rule 4 of the Court of Appeal Rules (the Rules), which provision gives me the unfettered discretion to grant the orders sought. But the discretion being judicial should not be exercised whimsically. Evidence is essential. The duty to produce that evidence lies on the applicant.
The decision against which an appeal is intended was given on 27th June, 2002. The applicant promptly filed a notice of appeal and a record of appeal, but omitted from the said record of appeal certain parts of the proceedin…