SYLVIA BAHAME V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 30511 OF 2024 (Arising from the Judgment delivered on 25/10/2019 by Hon. S.A.N. Wambura, J in Revision No. 895 of 20218) SYLVIA BAHAME...........................................................................APPLICANT VERSUS NATIONAL BANK OF COMMERCE (TANZANIA)…………………..RESPONDENT RULING Date of last Order: 05/03/2025 Date of Ruling: 04/04/2025 B.E.K. Mganga, J. On 3rd December 2024, Sylvia Bahame, the abovenamed applicant filed this application for extension of time within which to file a Notice of Appeal to the Court of Appeal to challenge the decision of this Court in Labour Revision No. 895 of 2018 that was delivered on 25th October 2019 in favour of the National Bank of Commerce (Tanzania) the abovenamed respondent. In the affidavit in support of the application applicant deponed inter-alia that, on 31st July 2013, she entered employment relationship with the respondent but on 16th February 2015, the latter terminated her employment unfairly. That, aggrieved with termination, she filed labour 1 dispute No. CMA/DSM/ILA/R240/15 before the Commission for Mediation and Arbitration (CMA) at Ilala as a result the arbitrator issued an award in her favour. That, aggrieved with the CMA award, respondent filed Labour Revision No. 895 of 2018 but on 25th October 2019, this court allowed the said application and revised the CMA award. Applicant deponed further that, she was aggrieved with the decision of this Court as a result she filed Civil Appeal No. 108 of 2020 but the said appeal was withdrawn on 15th February 2023 after noting that it was filed out of time. She further deponed that, after withdrawing the said Civil Appeal No. 108 of 2020, on 14th March 2023, she filed Miscellaneous Labour Application No. 68 of 2023 seeking extension of time within which to file the Notice of Appeal to the Court of Appeal. That, on 13th June 2023, this Court (Hon. Mlyambina, J) allowed the application and granted her 14 days within which to file the Notice of Appeal to the Court of Appeal. She went on that she sought a Certificate of delay as a result on 10th August 2023, the said Certificate of delay was issued by the Deputy Registrar and managed to file Civil Appeal No. 616 of 2023. Applicant further deponed that, when the said Civil Appeal No. 616 of 2023 was called on for hearing on 30th October 2024, the Court of Appeal noted that the Certificate of delay was issued erroneously as a 2 result, she withdrew the said appeal. She added that, the delay was not due to negligence but due to confusion in issuing Certificate of delay after expiration of period of limitation. In resisting the application, respondent filed both the Notice of Opposition and the Counter affidavit sworn by Gladness Mugisha, her principal officer. In the said counter affidavit, the deponent deponed inter-alia that, the appeal by the applicant was time barred two times. The deponent also deponed that, applicant has not advanced good or sufficient reason for the delay and further that she has failed to account for each day of the delay. When the application was called on for hearing, Mr. Majura Magafu, learned advocate appeared and argued for and on behalf of the applicant while Ms. Josephine Safiel, learned advocate argued for and on behalf of the respondent. Arguing in support of the application, Mr. Magafu submitted that, there was technical delay hence good reason for the delay. In support of his submissions that technical delay is a good ground for extension of time, counsel for the applicant cited the case of Yara Tanzania Limited vs DB Shapriya & Co. Limited (Civil Application No. 498/16 of 2016) [2017] TZCA 1340 (12 June 2017) and Subira Hussein & 3 Others vs Doto Yusufu @ Mzuzu (Civil Application No. 328/11 of 2022) [2023] TZCA 17706 (3 October 2023). Mr. Magafu submitted that, it is technical delay because, after the judgment that was delivered on 25th October 2019, applicant filed Civil Appeal No. 108 of 2020 while within time but the same was withdrawn on 15th February 2023 as it was noted that it was filed out of time and the certificate of delay was not properly issued. He went on that; applicant was granted by the Court of Appeal 14 days to rectify the shortcomings. He also submitted that, thereafter, applicant filed Miscellaneous Labour Application No. 68 of 2023 before this Court praying extension of time and that, on 13th June 2023 this Court (Hon. Mlyambina, J) granted applicant 14 days leave to file an appeal. He added that, a certificate of delay was issued also to that effect. Mr. Magafu further submitted that, when applicant appeared before the Court of Appeal, it was noted that, there was no need of filing a certificate of delay as a result, on 30th October 2024 applicant withdrew Civil Appeal No.616 of 2023. He went on that, following withdraw of the said Civil Appeal No. 616 of 2023, on 3rd December 2024, applicant filed this after 33 days thereafter. With those submissions, counsel for the applicant prayed that the application be allowed. 4 Resisting the application, Ms. Safiel, counsel for the respondent submitted that, there is no good grounds for extension of time. She further submitted that, for time to be extended, there must be good reason for the delay, applicant must account for the delay, must have acted promptly and there must be existent of point of law that requires consideration by the Court. Counsel added that, applicant was supposed to show how she promptly acted in ensuring that she can fight for her right. She cited the case of Bank M T. Ltd vs Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (25 October 2018) and submit that, in the said case, there was technical delay, and the Court of Appeal considered promptness of the applicant and granted extension of time. Ms. Safiel submitted further that, in the application at hand, applicant delayed for 34 days to file this application after withdrawal of Civil Appeal No. 616 of 2023 and did not account for each day of the delay of the said 34 days. To support her submissions that applicant was supposed to account for each day of the delay, counsel for the respondent, cited the case of Zito Zuberi Kabwe & Others vs Attorney General (Civil Application 365 of 2019) [2020] TZCA 390 (12 August 2020). With those submissions, counsel for the respondent prayed that the application be dismissed for want of merit. 5 In rejoinder, Mr. Magafu submitted that, applicant acted diligently and that she filed this application within reasonable time. When prompted by the court, counsel conceded that, in her affidavit, applicant did not account the days starting from the date of withdrawal of the appeal from the Court of appeal to the date of filing this application. Counsel was quick to submit that, time spent by the applicant to file this application is reasonable time. I have considered evidence of the parties both in the affidavit and the counter affidavit in this application and submissions made on behalf of the parties. This being an application for extension of time, I am being prayed by the applicant to exercise my discretionary powers. I am alive to the position that discretionary powers must be exercised judiciously. What amounts to judicious discretion was pointed by the Court of Appeal in the case of Mza RTC Trading Company Limited vs Export Trading Company Limited, Civil Application No.12 of 2015 [2016] TZCA 12 wherein it was held inter-alia that:- “An application for extension of time for the doing of any act authorized …is on exercise in judicial discretion… judicial discretion is the exercise of judgment by a judge or court based on what is fair, under the circumstances and guided by the rules and principles of law …” (Emphasis is mine). 6 It is also a settled principle of law in our jurisdiction that, in an application for extension of time, applicant(s) must provide sufficient reason for the delay or provide relevant materials and circumstances to justify the court to grant the application as it was held in the case of Victoria Real Estate Development Ltd vs Tanzania Investment Bank & Others (Civil Application 225 of 2014) [2015] TZCA 354, Rose Irene Mbwete vs Phoebe Martin Kyomo (Civil Application 70 of 2019) [2023] TZCA 111 and Omary Shaban Nyambu vs Dodoma Water & Sewarage Authority (Civil Application 146 of 2016) [2016] TZCA 892 to mention but a few. In addition to the foregoing, it is a settled principle of law in our jurisdiction that, in an application for extension of time, applicant must account for each day of the delay. See the case of Elias Mwakalinga v. Domina Kagaruki and 5 others, Civil Application No. 120 of 2018 [2019] TZCA 231 and Airtel Tanzania Limited V. Misterlight Electrical Installation Co. Ltd & Another, Civil Application No. 37 of 2020[2021]TZCA 517. It is further a settled principle of law that technical delay is a good ground for extension of time. See the case of Bank M T. Ltd vs Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (25 October 2018), Zito Zuberi Kabwe & Others vs Attorney General 7 (Civil Application 365 of 2019) [2020] TZCA 390 (12 August 2020), Yara Tanzania Limited vs DB Shapriya & Co. Limited (Civil Application No. 498/16 of 2016) [2017] TZCA 1340 (12 June 2017) and Subira Hussein & Others vs Doto Yusufu @ Mzuzu (Civil Application No. 328/11 of 2022) [2023] TZCA 17706 (3 October 2023) cited by both counsel. I will, in determination of this application, be guided inter-alia by the above settled principles of law. It is clear from applicant’s affidavit that, both Civil Appeal No. 108 of 2020 and 616 of 2023 were filed out of time. In her affidavit, applicant deponed that the delay was not due to negligence rather, was due to confusion in issuing Certificate of delay after expiration of period of limitation. That is the reason advanced by the applicant for the delay in this application. I agree with applicant that, in Civil Appeal No. 108 of 2028, the problem was relating to Certificate of delay that was issued by the Deputy Registrar. But, in Civil Appeal No. 616 of 2023, the problem cannot be tied to the Deputy Registrar who issued the Certificate of delay rather, that was applicant’s own problem. I am of that view because, it is the applicant who, sought the said Certificate of delay from the deputy Registrar. In other words, did not exercise her mind as to whether there was a need of seeking Certificate of delay after she 8 was granted 14 days leave in Miscellaneous application No. 68 of 2023. In fact, the Certificate of delay was irrelevant as it was noted by the Court of Appeal in its order issued on 30th October 2024 in Civil Appeal No. 616 of 2023. It was submitted by counsel for the respondent that, applicant has not accounted for each day of the delay. I agree with those submissions. It was correctly conceded by counsel for the applicant that applicant did not account for the delay from the date Civil Appeal No. 616 of 2023 was withdrawn to the date of filing this application on 3rd December 2024. In short, applicant did not account for of each 33 days she delayed to file this application. There is a litany of case laws that, each day of the delay must be accounted for. See for example the case of Lyamuya Construction Co. Ltd vs Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA, Sebastian Ndaula vs. Grace Lwamafa, Civil Application No. 4 of 2014, CAT (unreported), Said Nassor Zahor and Others vs. Nassor Zahor Abdallah El Nabahany and Another, Civil Application No. 278/15 of 2016, CAT, (unreported), Finca T. Limited & Another vs Boniface Mwalukisa, Civil Application No. 589 of 2018) [2019] TZCA 56, Zawadi Msemakweli vs. NMB PLC, Civil Application No. 221/18/2018 CAT 9 (unreported), Elias Kahimba Tibendalana vs. Inspector General of Police & Attorney General, Civil Application No. 388/01 of 2020 CAT (unreported) and Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, CAT (unreported) to mention but a few. In Mashayo’s case (supra), the Court of Appeal held inter-alia that: - "…the delay of even a single day, has to be accounted for otherwise there would be no proof of having rules prescribing periods within which certain steps have to be taken." It is my view that, even if agreeing with the applicant that Civil Appeal No. 616 of 2023 was withdrawn due to problems associated with the Certificate of delay, that did not exempt her from accounting for each day of the delay from the date the said Civil Appeal No. 616 of 2023 was withdrawn from the Court of Appeal. In other words, there is no exemption from accounting for each day of the delay when the delay is technical. It is my considered opinion that, even in a situation where a delay is technical, applicant is required to act promptly as it was submitted by counsel for the respondent. In the case of Tanzania Fish Processors Ltd vs Eusto K. Ntagalinda (Civil Appeal 41 of 2018) [2020] TZCA 237 (10 April 2020) there was technical delay but applicant did not account for 14 days that were actual or real delay, as a result, the application for extension of time was dismissed. In the application at 10 hand, there was technical delay, but applicant has failed to account for each day of the 33 days that are real or actual delay. It is my view that since applicant has failed to account for each day of the delay of 33 days, this application is bound to fail. In Subira’s case (supra) it was held inter-alia that: - “…It is a settled principle of law that, despite the presence of technical delay, the applicant still has the duty to account for each day delayed. [See: Mathew I. Kitambala vs. Rabson Crayson and Another, Criminal Application No. 339 of 2018 (unreported)].” As pointed shortly a while hereinabove, applicant did not account for the delay of 33 days. She only relied on technical delay for this application to be allowed. That was wrong because, in the strength of the above cited decisions of the Court of Appeal, she was supposed to account for each day of the said 33 days she delayed. For all what I have discussed hereinabove, I find that this application is unmerited and dismiss it. Dated at Dar es Salaam on this 4th April 2025 B. E. K. Mganga JUDGE 11 Judgment delivered on this 4th April 2025 in Chambers in the presence of Mathew Kabunga, Advocate for the Applicant and Josephine Safiel, Advocate of the Respondent. B. E. K. Mganga JUDGE 12