CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 233/01 OF 2023 TALGWU ON BEHALF OF OMARY ZUBERY & 576 OTHERS...... ................................................. APPLICANTS VERSUS ILALA MUNICIPAL COUNCIL........................................... 1ST RESPONDENT KINONDONI MUNICIPAL COUNCIL................................. 2nd RESPONDENT TEMEKE MUNICIPAL COUNCIL.... ................. ................. .3rd RESPONDENT MOROGORO MUNICIPAL COUNCIL.................................. 4™ RESPONDENT MWANZA CITY COUNCIL......... ...................................5™ RESPONDENT DODOMA MUNICIPAL COUNCIL...................... .................6™ RESPONDENT TANGA CITY COUNCIL..... ................................................7™ RESPONDENT MPWAPWA DISTRICT COUNCIL....................................... 8th RESPONDENT MTWARA MIKINDANI MUNICIPAL COUNCIL.................... 9™ RESPONDENT MASASI DISTRICT COUNCIL.......................................... 10™ RESPONDENT SONGEA DISTRICT COUNCIL........ ................................. 11th RESPONDENT (Application for extension of time within which to file an application for extension of time to lodge a notice of appeal on a second bite against the decision of the High Court of Tanzania at Dar es Salaam) fDyansobera, 3.^ dated th e 24th day of March, 2017 in Miscellaneous C ivii Application No. 555 of 2015 RULING 7th May & 1st August, 2024 KHAMIS. 3.A.: The Tanzania Local Government Workers Union (TALGWU) on behalf of its members, Omary Zubery and 576 others, filed this second i bite application for extension of time to lodge a notice of appeal against decision of the defunct Industrial Court of Tanzania (the Industrial Court) delivered on 24th February, 2010. This application follows a refusal by the High Court (Dyansobera, J) to extend time for lodging a notice of appeal against the Industrial Court decision vide Miscellaneous Civil Application No. 555 of 2015 delivered on 24th March, 2017. The application was filed by notice of motion made under rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and is premised on the grounds that: the applicants accounted for the delay from 14th December, 2020 when the High Court (Masabo, J) refused to extend time to file an appeal against decision of the High Court (Dyansobera, J) of 24th March, 2017 to the date of filing the application (5th April, 2023); the applicants were honestly, faithfully, promptly and diligently pursuing some other matters in courts; and; that, the High Court Judge failed to judiciously exercise his discretionary powers in extending time hence denied the applicants of the right to be heard in the intended appeal. The notice of motion was supported by an affidavit sworn by Stephen Mosha, learned advocate duly engaged by the applicants, who narrated the chronology of events leading to the filing of the application. He said that, after delivery of the High Court decision on 24th March, 2017, the applicants convened a meeting to discuss and agree on the way forward thereby resolved to challenge the decision in the apex Court. Miscellaneous Civil Application No. 397/01 of 2017 was then filed but struck out by this Court on 16th April, 2019 for lack of jurisdiction. It was further deposed that, following striking out of Misc. Civil Application No. 397/01 of 2017, the applicants changed venue and knocked the doors of the High Court vide Misc. Civil Application No. 256 of 2019 seeking extension of time within which to file a notice of appeal against the decision of Dyansobera, J. The application was dismissed by Masabo, J on 14th December, 2020. Determined to challenge the decision of Masabo, J, on 8th January, 2021, the applicants applied for copies of the ruling and proceedings and lodged a notice of appeal on 11th January, 2021. It was further averred that, in May 2021, the advocate for the applicants realised to have slipped into an error for pursuing an appeal against the decision of Masabo, J instead of lodging a second bite application flowing from the decision of Dyansobera, J. On that 3 comprehension, the notice of appeal was accordingly withdrawn on 20th May, 2021. Following the withdrawal, the applicants applied for a certificate of delay which was accordingly availed to them. Following which, the applicants filed Civil Application No. 405/01 of 2021 that was struck out by the Court on 22nd March, 2023. The order of striking out the application was supplied on 23rd March, 2023 and the present application was lodged on 5th April, 2023. Further, Mr. Mosha deposed that, with a view of preparing a well informed and proper application, he spent the time between 23rd March, 2023 to 5th April, 2023, in reading the case file which traces its origin to the proceedings dating as far back as the years 2005, 2008 and 2010. On the delay to file a second bite application, the deponent reiterated the reasons stated earlier, and added that, the applicants were diligent and tireless in pursuing their case, but as employees of the respondents, they were in a weak side and vulnerable to lose their rights should the Court refuse to extend time. The first and second respondents filed the affidavits in reply made by Messrs. Hussein Kambi and Netho Philemon Mwambalaswa, learned State Attorney and Senior State Attorneys, respectively. Hussein Kambi affirmed that, convening a meeting to discuss an outcome of the High Court decision instead of filing a proper second bite application was not a good ground for extension of time. He averred that, the applicants failed to account for the delay of 117 days from 24th March, 2017 when the High Court decision (Dyansobera, J) was delivered to 26th August, 2017 when Civil Application No. 397/01/2017 was filed in the apex Court. Further, he deposed that, the learned advocate for the applicant demonstrated a high degree of negligence and laxity in preferring an appeal instead of a second bite application to this Court. He added that, the applicants also failed to account for 19 days from 25th August, 2021 when the certificate of delay was issued to 13th September, 2021 when Civil Application No. 405/01 of 2021 was filed. Hussein Kambi dismissed an allegation that Stephen Mosha was engaged in reading the case file on the basis that, the learned advocate was fully aware of the facts of the case since he had represented the applicants throughout the proceedings in the High Court and before this Court. Netho Philemon Mwambalaswa made depositions similar to those advanced by Hussein Kambi and subjected the applicants to the strictest proof of their allegations. He specifically challenged the letter allegedly written by the applicants requesting for copies of the proceedings and impugned decision for purposes of appeal on the ground that, it was never served on the respondents. He deposed that, the applicants' counsel was negligent in pursuing an appeal instead of a second bite application and adjoined that, the applicants failed to account for the period from 25th August, 2021 to 13th September, 2021 aside from the 117 days from 24th March, 2017 to 26th August, 2017. In further averment, Mwambalaswa said the applicants failed to adduce sufficient reasons to enable the Court exercise its discretion in granting a time enlargement. At the hearing of this application, Mr. Stephen Mosha, learned advocate, appeared for the applicants whereas Ms. Lightness Msuya and Mr. Celestine Ngailo, learned State Attorneys, jointly acted for the respondents. Addressing the Court, Mr. Mosha adopted the written submissions earlier on filed by the applicants and had nothing to add on. In the written submissions, the applicants adopted the notice of motion and its supporting affidavit and moved the Court to allow the application on the premise that, a good cause for extension of time was shown. He relied on rules 10 and 45A (1) of the Rules in submitting that, this Court is vested with jurisdiction to extend time where a similar application is refused by the High Court. It was contended that, ruling of the High Court refusing to grant an application for extension of time was delivered on 14th December, 2020 and that, going by the rules, the second bite application ought to have been filed latest by 27th December, 2020. It was asserted that, the applicants failed to beat the deadline because from 14th December, 2020 to 20th May, 2021 they were pursuing an appeal in this Court. It was further asserted that, the chronology of events stated in the supporting affidavit saved as a good cause for the delay that was beyond the control of the applicants. In support thereof, the learned counsel for the applicants cited Alliance Insurance Corporation v. Arusha Art Limited, Civil Application No. 512/2 of 2016 (unreported); Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported); and; Stephen B. K Mhauka v. The District Executive Director Morogoro District Council, Secretary Public Service Commission & Another, Civil Application No. 68 of 2019 [2020] T7CA 62 (17 February 2020); Fortunatus Masha v. William Shija [1997] TLR 154; Elly Peter Sanya v. Ester Nelson, Civil Appeal No. 151 of 2018 [2020] T7CA 157 (27 March 2020); Vodacom Tanzania Public Limited Company (Formerly Vodacom Tanzania Limited) v. Commissioner General TRA, Civil Application No. 101/20 of 2021 (unreported); Murtaza Mohamed Raza Virani & Another v. Mehboob Hassanali Versi, Civil Application No. 448/01 of 2020 (unreported); Tanzania Rent a Car Limited v. Peter Kimuhu, Civil Reference No. 28 of 2019 (unreported); and; Exim Bank (Tanzania) Limited v. Johan Harald Christer Abrahmsson & 3 Others, Civil Reference No. 11 of 2018 [2020] TZCA 1. s Further, Mr. Mosha referred to paragraph 6 of the supporting affidavit and contended that, there are illegalities on the face of the impugned decision which the applicants wish to be addressed by the apex Court. He argued that, particulars of such illegalities could not be given at this stage due to legal limitations. On that point, he cited Mary Rwabizi t/a Amuga Enterprises v. National Microfinance PLC, Civil Application No. 378/01 of 2019 [2020] TZCA 355 (15 July 2020) where it was held that, further explanations on the particulars of the illegalities would be given at the stage of an application for extension of time. The learned counsel submitted that, as a single Justice of Appeal, it is not in my mandate to ascertain the illegalities or substantive issues to be featured in the intended appeal. He sought refuge in Attorney General v. Mkongo Building and Civil Works Contractors Ltd & Namtumbo District Council, Civil Application No. 266/16 of 2019 [2020] TZCA 44 (16 March 2020) where this Court scored that, whether the alleged illegalities are real or not are matters within the mandate of the Court and not by the single Justice of Appeal. In those premises, Mr. Mosha urged me to grant the application as presented. On the other hand, Ms. Msuya adopted the affidavit in reply sworn by Netho Philemon Mwambalaswa and made spirited submissions in opposition to the application. She asserted that, the applicants had seriously failed to account for the delay in lodging the application without any good cause. The learned State Attorney cited Lyamuya Construction Company Ltd (supra) in support of the assertion that, the period of delay must be accounted for by the applicants; delay should not be inordinate; and; that, the applicant must show diligence and not apathy. She nudged the Court to consider 152 days were not accounted for by the applicant between the dates of conclusion of Miscellaneous Civil Application No. 555/2013 (24th March, 2017) and the filing of Misc. Civil Application No. 397/01 of 2017 (26th August, 2017). She submitted that, no technical delay could exist in those circumstances. Further, she faulted the applicant for failure to attach copy of the decision in Misc. Civil Application No. 397/01 of 2017 that was allegedly struck out The learned State Attorney dismissed the allegation that, a meeting was convened by the applicants to agree on the way forward on the basis that, such is not a good ground for extension of time. She 10 submitted that, failure to attach copies of the minutes and or resolutions proved that, the allegation was an afterthought. Ms. Msuya contended that, as a second bite, the application ought to be filed by 28th December, 2020 being 14 days from 14th December, 2020 when the High Court refused to extend time. She added that, requesting for copies of proceedings on 8th January, 2021 suggested lack of diligence on the applicants. She subjected the applicants to strict proof of their allegations on the basis that, copies of the letter requesting copies of the proceedings, notice of appeal and the reminder letter were not served on the respondents contrary to rule 93 of the Rules. She asserted that, the certificate of delay was not of aid to the applicants on the basis that, counting from 25th August, 2021, the applicants were late to file the application for 5 days. On the illegalities, Ms. Msuya urged me to disregard the contention on the ground that, it was made from the bar and does not originate from the notice of motion or the affidavit in support thereof. She explained that, paragraph 6 of the affidavit had nothing to do with the illegalities but rather, refers to a certificate of delay. li The learned State Attorney moved the Court to dismiss the application for lack of merits. In rejoinder, Mr. Mosha reiterated his earlier submissions and contended that, it was not proper to account for the period from 2017 on the basis that, the High Court decision under which a second bite application is predicated, was delivered on 14th December, 2020. He submitted that, the period from 14th December, 2020 to 4th May, 2023 was spent by the applicants to file several applications in this Court intended to challenge the impugned decisions of the High Court. I have considered the notice of motion, the affidavit in support of the notice of motion, the affidavits in reply, the counsel rival submissions and the authorities cited. The issue for determination is whether the applicants have disclosed a sufficient cause for extension of time. The applicants are aggrieved by the decision of the High Court (Dyansobera, J) in Miscellaneous Civil Application No. 555 of 2015 dated 24th March, 2017 which refused their application for extension of time to file an appeal to the High Court against the decision of the Industrial Court of Tanzania dated 24th February, 2010. It is intended to seek an extension of time as a second bite in this Court. 12 Rule 45A (1) of the Rules provides that, where an application for extension of time to lodge a notice of appeal, to apply for leave to appeal or for a certificate on a point of law is refused by the High Court, the applicant may within fourteen (14) days from the date of such decision, apply to the Court for extension of time. Therefore, the fourteen days within which to lodge a second bite application expired on 7th April, 2017 and not 27th December, 2020 as wrongly suggested by the counsel. Rule 10 of the Rules provides that, the Court may, upon good cause shown, extend the time limited by the Rules or by any decision of the High Court or tribunal, for the doing of any act authorised or required by the Rules. In Daphine Parry v. Murray Alexander Carson [1963] E.A 546 it was held that, a legal provision for extension of time should receive a liberal construction so as to advance substantial justice, when neither negligence, inaction nor want of bonafide is imputed on the applicant. Rule 10 of the Rules does not provide the criteria to be considered in an application for extension of time. However, in a plethora of authorities, this Court has devised appropriate principles to be applied in arriving at a just decision depending on the circumstances of the case. 13 In Lyamuya Construction Company Limited (supra), the Court laid down points to be considered in an application for extension of time, thus: "As a matter o f general principle, it is in the discretion o f the Court to grant extension o f time. But that discretion is judicial, and so it must be exercised according to the rules o f reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: a) The applicant must account for all the period o f delay b) The delay should not be inordinate c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take. d) I f the court feels that there are other sufficient reasons, such as the existence o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged. " It is trite law that, for the Court to exercise its discretionary powers for extension of time, the applicant must adduce sufficient cause 14 to move it to that end. Once that is done, the Court is bound to objectively assess the cause for the delay to arrive at a just decision in a case. There is no maximum or minimum period of delay set out under the law. However, the reason for the delay must be reasonable or sufficient to enable the Court exercise its discretionary powers. In Yero Transport Services Ltd & Another v. Attorney General & Others, Civil Application No. 58 "A" of 2001 (unreported), this Court held that, failure of a party's advocate to check the iaw is not sufficient ground for allowing an appeal out of time. In African Marble Ltd v. Tanzania Saruji Corporation, Civil Application No. 44 of 2000 (unreported), the Court was of the view that, ignorance of the law is not a defence in law, particularly where a party was represented by an advocate. To cement its stance, the Court pointed out that: "...So the claim o f being ignorant o f the procedural rules in processing the appeal or seeking leave to appeal is without foundation..." In paragraphs 3, 4 and 5 of the affidavit, the applicants contended that, Miscellaneous Civil Application No. 397/01 of 2017 was struck out for lack of jurisdiction and Misc. Civil Notice No. 18 of 2021 (in respect of the High Court decision in Misc. Civil Application No. 256 15 of 2019) was withdrawn after realising that, an appeal was not a correct approach. In all previous proceedings before the High Court and in this Court, the applicants enjoyed legal services of Neptune Law Attorneys, learned advocates. It is on record that, the withdrawn notice of appeal was run after for almost six months from 14th December, 2020 to 20th May, 2021. It is worth noting that by that time, the applicants were already out of time to file a second bite application for almost four years. Therefore, they have failed to account for the entire period of delay. In paragraphs 6, 7 and 8 of the affidavit, the applicants averred that, they requested for copies of the typed proceedings, ruling, orders and a certificate of delay in Misc. Civil Application No. 256 of 2019 for purposes of filing a second bite application, and that, the same were ready for collection on 25th August, 2021. After obtaining those documents, the applicants lodged Civil Application No. 405/01 of 2021 which was struck out by the Court on 22nd March, 2023. I have examined a letter written by Neptune Law Attorneys referenced NU\-HCD/01/TLALGWU/21 and dated 8th January, 2021, a ie reminder letter by the same law firm to the Deputy Registrar of the High Court dated 22nd April, 2021, a notice of appeal dated 11th January, 2021 and an order in Miscellaneous Civil Notice No. 18 of 2021. It is evident from these documents that, the applicants focused to challenge the High Court decision in Miscellaneous Civil Application No. 256 of 2019 which was handed down by Masabo, J on 14th December, 2020 and not the ruling of the High Court (Dyansobera, J) in Miscellaneous Civil Application No. 556 of 2015 dated 24th March, 2017. It is further noted that, prior to the filing of this application on 5th April, 2023, the record is silent on the steps taken by the applicants to file the second bite application following decision of Dyansobera, J on 24th March, 2017. The learned counsel for the applicants casually asserted that, there are illegalities to be addressed by this Court. However, he failed to give particulars for the alleged illegalities. That notwithstanding, the assertion is not founded in the affidavit in support of the application and therefore, it remains to be a baseless allegation from the bar. In the circumstances, it is dear the delay to file the second bite application was caused by the applicants' failure to identify the appropriate legal remedy and not otherwise. Given that the applicants were duly represented throughout the proceedings under discussion, 17 their imprecise approach to a legal remedy does not constitute a technical delay as wrongly advanced in this case. In my view, no sufficient reason for the delay has been shown by the applicants to warrant this Court exercise its judicial discretion to extend time. The Court's stance in D.P Valambia v. Transport Equipments Ltd, Civil Application No. 13 of 1991 (unreported) is fitting here, thus, where the counsel's conduct amounts to inaction leading to non-compliance of the mandatory statutory requirement, this Court will not be easily moved to condone the conduct. At the end, I find no merits in this application which is dismissed with no order for costs. DATED at DAR ES SALAAM this 31st day of July, 2024. A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 1st day of August, 2024 in the presence of Mr. Kaizer Msosa, learned counsel for the Applicants and Mr. Salehe Mohamed Manoro, learned State Attorney for the Respondents; is