Edward Ngw'enge and Another vs Pangea Minerals (Civil Application No. 372 of 2025) [2025] TZCA 1175 (10 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 372 OF 2025 EDWARD NGW'ENGE 1 st APPLICANT ELIATOSHA NDOSI 2 n d APPLICANT SALOME DAVID 3 rd APPLICANT VERSUS PANGEA MINERALS RESPONDENT (Application for extension of time to file Notice of Appeal against the decision of High Court of Tanzania, Labour Division at Shinyanga) (Mipawa, J.1 dated the 23r d day of November, 2015 in 26th August & 10th November, 2025 MASHAKA, JA.: This second bite application is brought by way of notice of motion by the applicants in terms of rule 45A (1) of the Court of Appeal Rules, 2009, (the Rules), seeking for extension of time within which to file a Notice of Appeal. The intended appeal is against the ruling of the High Court of Tanzania (Labour Division) which was delivered on 23r d day of November, 2015, in Revision Nos. 104, 105 and 106 of 2015. Revision No. 104,105, and 106 of 2015 RULING l The applicants are seeking for the Court's indulgence following the rejection of their first application for extension of time by the High Court. The application is supported by the affidavit of the 1s t applicant, sworn on his own behalf and on behalf of the other applicants. The application is opposed by the respondent through an affidavit in reply deposed by Caroline Kivuyo, the advocate for the respondent. The factual background from the record leading to the instant application shows that; the applicants were employed by the respondent on different dates and holding different positions. Basing on economic requirements, the respondent retrenched the applicants. Aggrieved with the retrenchment that it was unfair; the applicants filed their complaint before the Commission for Mediation and Arbitration (the CMA). The CMA found that the respondent had a valid reason to retrench the applicants, likewise the procedure for retrenchment was followed. Therefore, the applicants were not entitled to any compensation. The High Court upheld the CMA award and decision on 23r d November, 2015. Undaunted, the applicants lodged Civil Appeal No. 211 of 2016 to challenge the decision. When the appeal was called on for hearing on 11th 2 August, 2017 the respondent lodged a notice of preliminary objection that the appeal was incompetent based on; first, for being filed without leave of the High Court and; two, lacking complete record. On 16th August, 2017 the Court delivered its ruling upholding the second point and proceeded to strike out the appeal. It led to the filing of Miscellaneous Labour Revision No. 30 of 2017 on 02n d October, 2017 before the High Court seeking extension of time to file notice of appeal. The High Court dismissed the application on the ground that the applicants failed to account for each day of delay from 16th August, 2017 when the appeal was struck out to 02n d October, 2017 when the application for extension of time was lodged. The order to struck out the application has led to the present application. As set forth in the supporting affidavit, the applicants' impecuniosity constitutes the principal ground for the relief sought. At the hearing of the application, Mr. Frank Samwel, learned advocate appeared for the applicants, whereas Mr. Faustin Malongo, also learned advocate represented the respondent. Mr. Samwel commenced his submissions by adopting the notice of motion, the supporting affidavit of the 1s t applicant as part of his oral 3 submissions. Expounding the reason of financial incapacity, Mr. Samwel argued that the applicants had first lodged the notice of appeal on time and thereafter lodged Civil Appeal No. 211 of 2016 which was found to be incompetent and it was struck out on 14th August, 2017. He argued that as the applicants were not conversant with the law and due to financial constraints, they managed to engage an advocate on 25th September, 2017, who prepared Misc. Labour Application No. 52 of 2017 and lodged it on 2n d October, 2017 which was dismissed on 11th December, 2019. The applicants then filed Misc. Application No. 555 of 2020 which was later withdrawn on 21s t October, 2024. The applicants requested to the Registrar to be availed with the certified copies of pleadings, exhibit, proceedings, ruling and drawn order on 13th December, 2019. The said record was availed to the applicants and the Registrar issued a certificate of delay to exclude the days from 13th December, 2019 to 10th February, 2025. The applicants lodged this application on 20th February, 2025, he argued. It was Mr. Samwel's argument that the applicants had financial constraints, and promptly took action to file application for extension of 4 time to file notice of appeal that is Misc. Civil Application No. 555 of 2020. He therefore prayed for the application to be granted. Opposing the application, Mr. Malongo adopted the contents of the affidavit in reply objecting to the grant of the application as the notice of motion and its supporting affidavit did not disclose any good cause warranting this Court to grant the second bite application for extension of time. He contended that, the law is clear that the applicants have to account for each day of delay as stated in the case of Wambele Mtumwa Shahame v. Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018), that even a single day of delay, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. He submitted that the applicants have not accounted for each day of delay when Civil Application No. 555 of 2020 was withdrawn on 21s t October, 2020 to 21s t February, 2022 which is a lapse of almost four months. Mr. Malongo contested the presence of the certificate of delay issued by the Deputy Registrar to exclude days and argued that, the facts which were deponed at paragraph 21 of the supporting affidavit is incorrect as 5 paragraph 14 of the affidavit in reply clearly shows that the applicants had already been supplied with copies of the proceedings, ruling and drawn order of Misc. Application No. 52 of 2017 before the filing of Civil Application No. 555 of 2020 as averred under paragraph 13 of the notice of motion that the necessary documents were supplied on 14th April, 2020 hence the application ought to be dismissed. He further submitted that, the main ground argued by the applicants is financial constraints which is not a good cause for the Court to grant extension of time as it was held in the case of Wambele Mtumwa Shahame (supra) that financial constraints, is not sufficient cause for extending the time. He thus prayed this ground to be dismissed. More so, Mr. Malongo referred to paragraphs 15 to 20 of the supporting affidavit and argued that, the applicants are challenging the decision of the High Court which refused to grant extension of time hence they are irrelevant since this is a second bite application in which this Court is not sitting as an appellate court, a position which was taken in the case of Eveline Leonard & 18 Others v. Phanuel Charles Nzenda, (Civil Application No. 427 of 2019) [2022] TZCA 304 (25 May 2022). 6 Elaborating further, Mr. Malongo referred to paragraph 14 of the affidavit in reply that on 21s t May, 2020 the applicants filed an application for extension of time to file Notice of Appeal in Civil Application No. 555 of 2020 which is similar to the present application. As averred at paragraph 15 of the affidavit in reply, on 21s t October, 2024 the same was withdrawn and not struck out. The applicants had willingly withdrawn and the matter came to an end, thus bringing another application of the same nature is an abuse of court process, he stressed. In his short rebuttal, Mr. Samwel argued that the cases referred to by the learned counsel for the respondent were distinguishable as they did not arise from labour disputes. He reiterated his prayer. It is imperative to note at the outset that the instant application constitutes a "second bite" application, brought pursuant to rule 45A (1) of the Rules subsequent to the initial application's dismissal by the High Court. In adjudicating the matter, as argued by Mr. Malongo, this Court's function is not to revise or sit in appeal over the exercise of discretion by the learned High Court Judge. Rather, the Court is tasked with a fresh consideration of the application on its merits independently by assessing whether sufficient cause exists to warrant the exercise of its discretion in the applicants' favor, irrespective of the prior determination by the High Court. This legal principle was firmly affirmed in Eveline Leonard & Others (supra) and the Court had this to say: "However, we do not think the learned advocate's criticism was called for because, this is not an appeal from the ruling o f the High Court dismissing the application rather a second bite application to be considered on its own merit This is more so because we are not concerned with any determination o f the exercise o f discretion by the High Court Judge rather, looking at the application afresh and weighing whether there exists good cause for exercising our discretion in the applicant's favour independent o f what the High Court decided ." Having delineated the foregoing principles governing a second bite application, I now turn to the merits of the instant motion. Upon consideration of the rival submissions advanced by learned counsel for the respective parties, the sole issue for determination is whether financial constraint constitutes "good cause" sufficient to warrant the exercise of 8 judicial discretion to extend the prescribed period for filing a notice of appeal. Rule 10 of the Rules requires the applicant to show good cause to warrant the Court exercise its discretion to extend time for the doing of any act authorized or required by the Rules. In the present application, Civil Appeal No. 211 of 2016 was struck out on 16th August, 2017 and on 2n d October, 2017 the applicants lodged Misc. Labour Application No. 52 of 2017 which is after the lapse of 46 days, and the reason advanced for such delay is financial constraints. Yet again, the applicants filed Civil Application No. 555 of 2020 which they later had it withdrawn on 21s t October, 2024 and later lodged this present application on 20th February 2025 after a lapse of four months. The reason for such delay as advanced by Mr. Samweli is financial constraints but he also averred that the High Court had delayed to supply certified copies of the proceedings, ruling and drawn order of Misc. Labour Application No. 52 of 2017; which contradicts with paragraph 13 of the notice of motion which shows that they were availed with the necessary documents on 14th April, 2020. 9 Certainly, in Wambele Mtumwa Shahame (supra), the Court held that financial constraint is not a sufficient reason for extending time. Nevertheless, in the case of Yusufu Same & Another v. Hadija Yusufu, Civil Application No. 1 of 2002 (unreported) while acknowledging that financial hardship is not a good cause, the Court held that there are certain circumstances where it may accept such reason. It stated: "It should be observed that the term sufficient cause should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or cases which are outside the applicant's power to control or influence resulting in delay in taking any necessary step... As for the period from 29.11.1996 when the application for leave was dismissed by Bahati J. up to 3.1.1997 when the application leading to this appeal was lodged, the explanation by the respondent is based mainly on her numerous shuttles between Dar es Salaam where the court records were and Moshi where her counsel was based, coupled with poverty. We are aware that financial constraint is not sufficient ground for extension o f time. See Zabitis Kawuka v. Abdui Karim (EAC) Civil Appeal No. 18 o f1937. But in the circumstance o f this case at hand, where 10 the respondent was a widow depending on legal aid, her plea for financial constrain cannot be held to be insignificant" In the present application, as gathered from the facts of the application, the applicants were neither depending on legal aid nor work for gain. As averred under paragraph 3 of the notice of motion they were only unemployed that alone cannot fit in the exceptional circumstances stipulated in the above excerpt. That being the case, the applicants were obliged to account for each day of delay as correctly submitted by Mr. Malongo as referred to the case of Wambele Mtumwa Shahame (supra) when citing the case of Bushiri Hassan v. Latifa Mashayo, Civil Application No. 3 of 2007 (unreported) that; "Delay even o f a single day has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken ." According to the excerpt above, the applicants failed to account for the days from the 16th August, 2017 when the Civil Appeal No. 211 of 2017 was struck out to 2n d October, 2017 when Misc. Labour Application was filed and when Civil Application No. 555 of 2020 was withdrawn on 21s t ii October, 2014 until the present application was lodged on 20th February, 2025. I thus agree with Mr. Malongo, that financial constraints is not a good cause to warrant extension of time. This Court cannot exercise its discretion to grant extension of time to file notice of appeal out of the prescribed time. The application is meritless and is dismissed. I make no order as to costs as this application originates from a labour dispute. DATED at DAR ES SALAAM this 28th day of October, 2025. L. L. MASHAKA JUSTICE OF APPEAL The Ruling delivered this 10th day of November, 2025 in the presence of Mr. Imani Mfuru, learned counsel for the Respondent also holding brief of Mr. Frank William, learned counsel for Applicants vide link from Mwanza and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the 12