Gopal Sri Ram JCA:

Two applications came before us. Both were by the appellant. Both were opposed by the respondent.

By the first the appellant sought leave of this court to file the record of appeal out of time. The second application asked for a stay of execution, pending appeal, of the order made by the High Court. We heard the application for extension of time first because upon its result depended the survival of the application for stay of execution.

In opposing the motion seeking an extension of time, counsel for the respondent submitted that the appellant's affidavit filed in support of the application did not set any, or any sufficient, material upon which this court could exercise its discretion in the appellant's favour.

A perusal of the appellant's affidavit reveals that the only points made in it are these:

(1) On 12 July 1997 the judge sitting in chambers dismissed an appeal from the registrar in the matter of the appellant's bankruptcy.

(2) On 23 July 1997, the appellant lodged notice of appeal to this court against the decision of the judge in chambers.

(3) The time limited for filing the record of appeal by the appellant expired on 2 September 1997.

(4) The appellant was unable to file the record of appeal because:

(a) the appellant's solicitors only received notification from the registry of this court on 6 September 1997 informing them that the notice of appeal which had been filed on 23 July 1997 had been received on 31 July 1997; and

(b) the appellant's solicitors had not received a sealed copy of the order appealed against for inclusion in the record of appeal.

After hearing argument, we came to the conclusion that the respondent's objection was well founded.

There is no doubt that this court has power, exercisable at its discretion, to extend the time limited for the filing or service of any document or the doing of any act under the Rules of the Court of Appeal 1994 ('the Rules'). And it is trite that the burden is upon an applicant who seeks an extension of time to make available sufficient material upon which this court may exercise discretion in his favour.

In the present case, we found ourselves in agreement with counsel for the respondent that there was insufficient material placed before us warranting the exercise of discretion in the appellant's favour. The reasons advanced by the appellant in his affidavit are wholly inadequate. Indeed, counsel for the appellant frankly conceded the point.

The fact that the appellant's solicitors learned on 6 September 1997 that their client's notice of appeal had been received on 31 July 1997 is of no relevance because it did not in any way deter the appellant from doing what was procedurally required of him. After all, the Rules as well as the relevant practice direction clearly set out the steps an appellant should take to get his appeal off the ground and the time frame within which he should act.

Equally irrelevant is the fact that the sealed order had not become available. It was always open for the appellant to file the appeal record without the sealed order and later include it in a supplementary record. Such a practice is commonplace in this court. What is of importance is that an appellant should include the notes of proceedings and the grounds of judgment in the record of appeal. Where these are not made available within the time limited for filing the appeal record, an appellant may, in accordance with the relevant practice direction, obtain an extension of time from the registrar without having to formally move this court. However, if for any reason the appellant fails to act under the practice direction, he may nevertheless apply to this court and obtain an extension of time pending his receipt from the High Court of the notes of proceedings and the grounds of judgment of the judge. In the present instance there is nothing to show when the appellant had applied to the learned judge of the High Court for the notes of proceedin