Serengeti Breweries Limited vs Hector Seqeuiraa (Civil Appeal No. 137 of 2025) [2026] TZCA 474 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A.. MURUKE J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 137 OF 2025 SERENGETI BREWERIES LIMITED...........................................APPELLANT VERSUS HECTOR SEQEUIRAA ........................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) fMaanaa. J.1 dated the 11th day of Decem ber, 2024 in Misc Application No. 25643 of 2024 JUDGMENT OF THE COURT 21st April & 9 h May, 2026 MURUKE. J.A.: The present appeal, arises from the decision of the High Court of Tanzania (Labour Division) at Dar es salaam, delivered on 11th December, 2024, in which the respondent was granted extension of time to file an application for review, against the dismissal order dated 8th April, 2019 issued in Labour Execution No 279 of 2016. Being dissatisfied with the ruling, the appellant fronted four grounds of appeal namely: 1. That the High Court Judge erred in law by entertaining a defective application whose affidavit did not comply with the mandatory i requirements of the law, and dismiss preliminary objections raised and proceed to determine an incompetent application. 2. That, the learned High Court judge erred in law by improperly exercising his discretion and granted the extension of time sought, while the respondent's application had not met the criteria upon which an order for extension of time could be granted. 3. That, the High Court judge erred in law by his failure to make a finding that the respondent had failed to account for each day of the delay of filing the application for extension of time sought while the respondent failed to account for each delay is submission the bar. 4. That the High Court Judge erred in law by improperly making an incorrect finding that the respondent ought to have accounted for the period from 27th March 2024 without legal basis to support of such finding and the High court judge did not consider that the Respondent did not account for each day of delay as required by law. Both sides filed submission for and against the four grounds of the appeal which essentially boil down in to two issues for considerations before us. One; whether the application for extension of time was defective on account of defective affidavit supporting the application and two; whether the respondent adduced sufficient cause to justify the High Court to grant the extension of time sought, to file review. 2 At the hearing of the appeal before us, the respondent was represented by Dr. Alexander T. Nguluma assisted by Ms. Nora Mara, both learned counsel whereas Mr. John Laswai and Mr. Alex Mianga also learned counsel represented the appellant. The leading appellant's counsel, Mr. Laswai, adopted written submission filed earlier as part of his oral submission, and amplified further on issue of defective application, the affidavit in support of the application for extension of time did not comply with the requirement of Rule 24 (3) (a), (b), (c) and d) of the Labour Court Rules, G. N. 106 of 2007. Specifically, the affidavit did not contains the following: names, description and address of the parties, two; the statement to the material facts in chronological order, three; statement of legal issues which are involved in the matter and four; the relief sought. In reply Dr. Nguluma, apart from adopting submission filed earlier, to be part of his oral submission, he asserted that the affidavit set out a legal issue arising from material facts namely a procedural illegality concerning the Courts functus officio status, following the issuance of a garnishee order absolute as highlited at paragraph 12 of the affidavit, reflected at page 11 of the record. Additionally, paragraph 13 of the affidavit, reflected at page 11 of the record of appeal, expressly state the relief sought, being 3 leave to file a review against the dismissal order, consistent with the notice of the application. Accordingly, the affidavit complied with rule 24(3) of the Labour Court Rules, 2007 insisted the respondent's counsel. Further, the respondent's counsel submitted that the complaint that affidavit in support of the application was defective for failure to attach affidavit from the persons alleged to have provided information, is devoid of merits because; the statement made at paragraphs 8, 9, 10, and 12 of the affidavit at page 10 to 12 of the record, relate to events and communication within the respondent's direct knowledge and experience, based on interactions and decisions made in the course of handling the matter, they are not hearsay. Having heard both sides on this issue, a complaint that affidavit in support of the application was incurable defective, outright is not true on the following reasons: one, paragraphs 1 and 2 described the respondent then the applicant, in compliance with rule 24 (3) (a), two; paragraphs 3, 4, 5, 6, 7 8,9,10, 11 are all material facts of the dispute incompliance with rule 24(3) (b), three; paragraphs 12 and 13 raise legal issues in compliance with rule 24(3) (c), four; paragraphs 14 and 15 contain prayers in compliance with of rule 24(3) (d). 4 The above notwithstanding, there was an omission to describe the appellant then the respondent and her address, but that is not fatal. The respondent now appellant was able to be served and filed her counter affidavit including raising preliminary objections. It is worth noting that, the High Court Labour Division is the Court of record, equity, and justice. Thus, it is not bound by undue technicality as clearly provided under Rule 55 (1) and (2) of the Labour Court Rules, G.N. No 106 of 2007 which reads that: "In the exercise and performance o f its powers and functions or in any incidental manner, the court may act in a manner that it considers expedient in the circumstances to achieve the object o f the Act and good end ofjustice." In labour matters, minor procedural irregularities, such as the placement of the address at the end of the affidavit instead of being in the first descriptive paragraph, do not render the affidavit defective, and where no prejudice is occasioned. The Court has repeatedly held that justice should not be sacrificed at the altar of technicality, if no prejudice is occasioned. In Mwakipesile vs Barclays Bank [ 1997] T. L. R 52 it was held that the court will not allow technical objection to defeat a substantial claim. Equally so, in Ally M. Kaimu vs Said M. Nyamwasi [1998] T. L. R 110 it was held that "Justice is not a slave to technicality, it must be served". In Tanzania Breweries Limited vs Jumanne Kessy [2000] T.L.R 47 it was insisted that: "A party should not be deniedjustice because o f a technicality, unless the technicality is o f a nature that goes to the root o fjurisdiction". The appellant's counsel raised an issue of verification clause, as being defective. With respect to the appellant's counsel, it is glaring that it is based on both belief and personal knowledge of the respondent, Mr. Hector Seqeuiraa. Same did not introduce facts obtained from external sources, thus, there is no need of other affidavit as claimed by the appellant's counsel. Another issue raised is that there is no notice of representation. The respondent was thought represented in terms of the record of appeal. At no point in time the appellant failed to serve the respondent for lack of written notice of representations. To the contrary, the appellant then respondent presented her case well, and no prejudice that was suffered by the appellant for failure by the respondent to file written notice of representation. Thus, it is a minor defect that was not material to the proceedings at the High Court and no injustice occasioned. In totality, ground one is devoid of merits, thus dismissed. Grounds 2, 3, and 4 raise one issue as to whether the respondent adduced sufficient cause to justify the High Court to grant extension of time to file review. The appellant's counsel submitted that in order for extension of time to be granted the Court must satisfy itself that the applicant has established sufficient cause. It was further submitted that application for execution was dismissed for non-appearance of the respondent at the executing court before the Registrar. The application for extension of time was inordinately filed after 4 years, eleven months and 27 days. The High Court Judge was wrong into holding that the respondent's delay was explained. To support his argument, Mr. Laswai cited the case of Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Women Association, Civil Application No. 2 of 2010 [2011] TZCA 4, which insisted on accounting period of delay, delay should not be inordinate, the applicant must show diligence, and existence of point of law of sufficient importance, such as illegality of the decision sought to be challenged. On failure to account for the delay, it was submitted further that, Execution No 279 of 2016 was dismissed on 8thApril, 2019, the respondent filed application for extension of time on 15th October, 2024 when filed Labour application No 2564 of 2024, whose decision is subject of this appeal. 7 The reason for the delay that were stated at paragraph 7 of affidavit in support of the application at the High Court does not hold water as the respondent failed to make a follow up of his execution proceedings at the High Court, alleging to be making a follow-up of the case at the Court of Appeal. Inordinate delay of this magnitude of more than 4 years amounted to nothing, other than proof of negligence by the respondent, insisted the appellant's counsel. It was further submitted by Mr. Laswai that, there is no point of illegality as claimed by the respondent counsel, as same is not on the face of record, citing the case of Justice Tihairwa vs Chief Executive Officer, TTCL, Civil Application No. 131/01 of 2019 [2019] TZCA 335, where it was insisted that for point of illegality to exist must be apparent on the face of record, to support his arguments. In the end, the appellant counsel insisted that applicant ought to have filed an application for restoration of the dismissed application for execution not to file the application for extension of time to file review. In the end, Mr Laswai prayed for the appeal to be allowed. On the second issue as to whether there were sufficient adduced reasons by the respondent for the High Court to extend time to file review, Dr. Nguluma was of the view that High Court, in granting the 8 application for extension of time exercised its discretion judiciously and in accordance with the settled principles of the law, among others counting each day of the delay as articulated in the case of Lyamuya (supra) and point of illegality apparent on the face of record, as cited by the appellant's counsel. The respondent counsel submitted further that the appellant has not denied that the respondent had successfully filed an application for execution and the final order of garnishee absolute was issued and decretal sum was deposited in the Court's account. When dealing with Execution No 279 of 2016, the Court was functus officio in issuing dismissal order, while the proceedings were finalized. As such, the likelihood of success of the review application is strong to address the substantive point of law which if ignored or continue to be ignored will occasion miscarriage of justice to the respondent who had diligently prosecuted his case at the CMA and the Labour Court but due to error apparent on the face of record, could not enjoy the fruits of the decree that was issued in favor of him. The respondent's counsel further asserted that, following the decision of Chandrakant Joshubhai Patel vs Republic [2004] TLR 9 218 the Court made it explicit that for the Court to revisit its decision the test was that: "The ingredients o f an operative error are that first, there ought to be an error; second the error has to be manifest on the face of the record and third, the error must have resulted in miscarriage o fjustice". In relation to counting for days of the delay, it was submitted that the respondent became aware of the status of the execution proceedings on 27th March 2024, based on the affidavit evidence and documentary record filed in support of the application. Before 27th March, 2024, the respondent was not aware of the dismissal of his execution proceedings. In the case of Samwel Phelemon vs The Republic, Criminal Application No.2/8 of 2016 [2017] TZCA 1382 the Court held that lack of awareness of a court decision constitute reasonable grounds for the delay. In the case at hand, the respondent was unaware of the judgment due to circumstances beyond his control, and the High Court found this to be sufficient to warrant an extension of time. Similarly, the respondent's unawareness of the dismissal order, caused by their advocate' illness and procedural complexities, is a valid reason for the delay, warranting this 10 Court intervention, insisted Dr. Nguluma for the respondent, who then beseeched us to dismiss the appeal for lack of merits. Having heard both sides on the issue, before resolution of the same, we wish to point out that, it is elementary principle that in cases that are being fought on the basis of affidavits as in this case, where both sides filed affidavits for and against the revision, the evidence is what is averred in the affidavit on oath or affirmation. The law is also settled, where evidence is adduced by way of affidavit evidence supported by documentary exhibits, both should be employed in resolving and demining the matter before it. Furthermore, where documentary evidence support deposition in an affidavit or counter affidavit as in this case at the High Court, such disposition are taken as the correct positions of what it seeks to establish because the documents once attached as required by law, are legally speaking, taken as having been tendered as evidence. It is also worth insisting that uncontroverted facts contained in an affidavit are taken as true. The respondent in paragraph 8 of his affidavit in support of the application for extension of time to file review at the High Court, deposed as follows: 11 "That on 17 March 2024, after seeking legal assistance from the Legal and Human Rights Centre, I discovered that Execution Application No. 279 o f 2016 had been dismissed on 8 h April 2019 for non-appearance in Court on a mentioned day. Upon advice from my advocates, the Legal and Human Rights Centre, I learnt that the Gurnishee Order Absolute had already resolved the matter to its finality, rendering the Court functus officio at the time o f dismissal. I filed an application for enrolment, which was subsequently struck out on 9h May, 2024". The appellant then respondent in her counter affidavit sworn by her principal officer replying to the contents of paragraph 8 above at paragraph 10 stated that: "In response to paragraph 8 of the affidavit, I state that the application for execution had not been concluded at all material times and that there was no order finalizing the execution application. I further state that the application for execution was pending before the court until the Court lawfully dismissed it for want of prosecution". From what has been demonstrated above, the appellant then respondent's counter affidavit to the serious averments of paragraph 8 of 12 affidavit in support of the application for extension of time at the High Court, contains evasive denial and no more. It is trite law that evasive denials in a counter affidavit, are often taken or countered as admission because evasive denial alone without more, cannot amount to controverting the evidence earlier averred. From uncontroverted, averments of paragraph 8 reproduced above, following issues are not in dispute: one; that on 27th March, 2024 is the date that the respondent became aware of the status of the execution proceedings. The High Court Judge cannot be faulted by holding that the period of inaction began from 27th March, 2024. Two; issue of illegality was raised at paragraph 8 of the affidavit in support of the application as reflected at pages 7 to 13 of the record of appeal, in that issuance of dismissal order after a garnishee order absolute had already been granted. Three; the Registrar in execution proceedings lacked jurisdiction to dismiss the execution No. 279 of 2016, while the court was fanctus officio. It is an irregularity that goes to the root of the court's authority, that cannot be left unchallenged, to the contrary it is to leave a nullity to flourish in the court record. Four; the dismissal order by the Registrar without jurisdiction is an error on the face of record, that has occasioned miscarriage of justice as the respondent can no longer proceed with executions until the error is corrected. The above four issues were the sufficient cause for the High Court to allow the application for extension of time to file revision, as rightly done by Hon. Mganga J, on his ruling reflected from page 338 to or 342 of the record, thus, same cannot be faulted. In totality, there is no merit in the appellant's appeal. The same is dismissed. The dispute having originated from an employment action is not amenable to award of costs. DATED at DAR ES SALAAM this day 4th of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 5th day of May, 2026 in the presence of Ms. Caroline Mageni, learned counsel for the Appellant also holding brief for Dr. Alex Nguluma, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original.