Juma M. Nkondo vs Tol Gases Limited/Tanzania Oxygen Limited & Another (Civil Application No. 566/01 of 2024) [2025] TZCA 1011 (2 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 566/01 OF 2024 JUMA M. NKONDO ................... . .............................................. APPLICANT VERSUS TOL GASES LIMITED/TANZANIA OXYGEN LIMITED ........... 1 st RESPONDENT ABDULRAHMAN MOHAMED KHATIB ................... ............2 nd RESPONDENT (Application for Extension of Time to appeal to the Court of Appeal against the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Kaduri. J.l dated the 19th day of March, 2015 in Civil Case No. 108 of 2009 RULING 25th August & 2n d October, 2025 MAKUNGU. J.A: This is an application for extension of time to file an appeal against the decision of the High Court of Tanzania at Dar es Salaam (Kaduri, J.) dated 19th March, 2015 in Civil Case No. 108 of 2009. The application which is brought under rules 10 and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) is supported by the affidavit of the applicant himself. The application was strongly opposed by the 1s t respondent on whose behalf an affidavit in reply made by its advocate, i

Mr. Isaya Gibson Matambo, was filed. There was no affidavit in reply filed by the 2n d respondent. The background information to the application is that the applicant was aggrieved by the decision of the High Court delivered on 19th March, 2015. The applicant lodged a notice of appeal and requested for necessary documents to appeal. On 31s t March, 2015, he sought leave to appeal in Misc. Civil Application No. 142 of 2015 and same was struck out on 6th October, 2016. He filed Misc. Civil Application No. 713 of 2016, which was dismissed on 11th May, 2017. On 31s t October, 2017, the applicant filed Misc. Civil Application No. 293 of 2017 sought extension of time to file leave to appeal, however, on 13th November, 2017, the same was struck out. Upon that, on 30th October, 2017, he filed Misc. Civil Application No. 689 of 2017, and on 27th June, 2019 the court dismissed the application as it become functus efficio. On 9th September, 2019, the applicant sought a certificate of delay and filed a second bite application in Civil Application No. 382/01 of 2019. However, on 12th September, 2021, the application was struck out for being omnibus. On 29th September, 2021, he filed Civil Application No. 370/01 of 2021 which was struck out on 31s t March, 2023. Dissatisfied, he filed Civil Reference No. 6 of 2023 on 11th April, 2023 to challenge the 2

decision of a single justice which was withdrawn on 17th July, 2024 for being overtaken by event as leave to appeal was no longer a requirement. Moreover, the applicant claimed that the decision is tainted with serious illegality as he was deprived of his right to be heard. He also claimed that the High Court had no jurisdiction to hear and record a settlement in a deed to compromise claims of labour. The applicant was not able to file the appeal within sixty days provided under the Rules and he is now before the Court seeking for extension of time to file the appeal. When the application was called on for hearing, the applicant appeared in person, unrepresented. On the adversary side, Mr. George Sangudi, learned advocate appeared for the 1s t respondent while Ms. Aziza Msangi, also learned advocate appeared for the 2n d respondent. Before the hearing of the application could proceed on merit, Ms. Msangi informed the Court that the notice of motion was not served on the 2n d respondent within the prescribed time in contravention of rule 55 of the Rules. She therefore invited the Court to strike out the application with costs. In reply, the applicant submitted that the point raised by the 2n d respondent's counsel is devoid of merit. He stated that the 2n d respondent was represented by the office of Mbamba & Co. Advocates. The said office

refused to receive the service for the reason that they have no instruction from the 2n d respondent. They asked him to serve the 2n d respondent in person. The applicant went to the 1s t respondent who was the employer of the 2n d respondent, but he was told that the 2n d respondent was retired and they do not know his whereabouts. Therefore, the applicant could not serve him. He implored the Court to overrule the objection because the office refused to receive the service, and to proceed with the hearing of the application in the absence of the 2n d respondent. Rejoining Ms. Msangi submitted that the applicant was required to notify the Court that the whereabouts of the 2n d respondent was not known and substituted service on publication could be done but the applicant failed to do so. She insisted that the 2n d respondent was not served and therefore the application should be struck out. First I have to deal with the above point raised by the 2n d respondent's counsel. The issue for my determination is the competence of the application before the Court. If I find it is incompetent that will be the end of the matter but if I find otherwise I will proceed with the merit of the application. Ms. Msangi argued that the 2n d respondent was not served with the application as required by the Rules and therefore the application 4

contravenes rule 55 of the Rules. On the other hand, the applicant contended that the 2n d respondent was served through the office of Mbamba & Co. Advocates which was refused to receive the service for lack of instruction. Firstly, I respectfully take note that Ms. Msangi is not representing the 2n d respondent because she did not tell the Court that now they have instruction. She did not deny that the office had refused to received the service. She told the Court that the office received the hearing summons from the Court and not from the 2n d respondent. Since the office had no instruction, Ms. Msangi, in my view, cannot appear on behalf of the 2n d respondent who is not their client. I find that the 2n d respondents whereabouts is unknown, hence accepting that there was any non-service of any document to him would be a speculation. I respectfully decline the invitation to strike out the application. I find the point raised is void of merit. On the merit of the application, having adopted the notice of motion, the supporting affidavit and the written submission in support of the application, the applicant urged me to grant the application on the grounds that there was good cause for condonation of the delay and that

the decision of the High Court intended to be challenged was fraught with an illegality. In the supporting affidavit and the written submission in support of the application, the delay is attributed to, among other things, the following: first, the then protracted proceedings in both the High Court and this Court for an order for leave to appeal of which by then was a legal requirement. Secondly, waiting to be supplied with the requisite copies of judgment/ruling, order and proceedings. Thirdly, delay in research, looking for the law and fourthly, technical delay caused in Court pursuing other applications on same matters. On the other hand, the 1s t respondent, having adopted the affidavit in reply along with the opposing written submission, argued that the application failed to disclose any good cause for the delay and that it ought be dismissed with costs. Before dealing with the substance of this application in the light of the competing submissions, it bears restating that although the Court's power for extending time under rule 10 of the Rules is both broad and discretionary, it can only be exercised if good cause is shown. Even though it may not be possible to lay down an invariable definition of the phrase "good cause" so as to guide the exercise of the Court's discretion under

rule 10, the Court invariably considers factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent, whether there is point of faw of sufficient importance such as the illegality of the decision sought to be challenged: see for instance the Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] TLR 387; and Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). I have given due consideration to all the material on the record in the light of submissions of the parties. The question that I have to determine is whether there is a good cause for condonation of the delay. It is common ground that the applicant duly lodged his notice of appeal and requested for necessary documents to appeal. Subsequently, he duly applied to the High Court for leave to appeal vide Misc. Civil Application No. 142 of 2015 but that application was struck out on 6th October, 2016. Afterwords, the applicant re-approached the High Court yet again applying for leave to appeal (Misc. Civil Application No. 713 of 2016) but that effort proved futile as it was dismissed on 11th May, 2017.

On 31s t October, 2017 the applicant filed Misc. Application No. 293 of 2017 applied for extension of time to file leave to appeal, however, on 13th November, 2017 the same was struck out. Upon that on 30th November, he filed Misc. Civil Application No. 689 of 2017 and 27th June, 2019 the court dismissed the application as it became functus officio . From that the applicant applied for a certificate of delay and timely fled the second bite application in Civil Application No. 387/01 of 2019 on 9th September, 2019, which was struck out for being omnibus. Still determined on 29th September, 2021 the applicant filed Civil Appeal No. 370/01 of 2021, which was struck out on 31s t March, 2023. On 11th April, 2023 he filed Civil Reference No. 6 of 2023 to challenge the decision of a single justice of the Court, which was withdrawn on 17thJuly, 2024 on the reason that it was overtaken by event as leave to appeal was no longer a requirement. Admittedly, the delay between the date when the High Court's decision sought to be appealed against was handed down (that is, 19th March, 2015) and the termination of the Civil Reference on 17thJuly, 2024 could be held to constitute an excusable delay. For that delay arose from the time he spent in the corridors of the Court in a pursuit of justice in good faith. Nonetheless, I find justification in the 1s t respondent's criticism 8

that the applicant was busy filing incompetent applications which ended being struck out and dismissed. This means that the applicant has been negligent by filing incompetent applications before the Court. It seems to me that the applicant is ignorant of the law as the cause of the delay involved. But it has been held many times without number that ignorance of the law has never been accepted as a sufficient or good cause for extension of time - See for example, Charles Machota Salungi v. Republic, MZA Criminal Application No. 3 of 2011 (unreported). It is not in dispute that the decision subject of this application was delivered on 19th March, 2015 and the current application was filed on 29th July, 2024 nine (9) years lapsed without justification. The whole period is, in my view, not fully accounted for. There is no denying that the delay involved was so incoordinate. It is settled that in application for enlargement of time, the applicant has to account for everyday of the delay: See, for example the unreported decision of this Court in Bushiri Hassan v. Latifa Mashayo, Civil Application No. 2 of 2007. In the circumstances, I reject the applicant's explanation of the delay involved and hold him to have failed to account for each and everyday of the delay. The above finding takes me to the second limb of the justification for the application that time be extended on the ground that the impugned 9

decision of the High Court dated 19th March, 2015 is vitiated by illegalities. The applicant specifically argued that his right to be heard was deprived during the recording of the deed to be comprised by the High Court, as he raised his concern on the deed but the High Court proceeded to record the deed without allowing him to be heard. He also believed that the High Court main Registry at Dar es Salaam had no jurisdiction to entertain the labour matter, since such jurisdiction is exclusively vested in the High Court Labour Division. Fortunately, the record (annexture JMN-1) shows that the applicant was heard by the High Court where his advocate Mr. Kariwa gave detailed explanation on the compromise agreement which was drawn by him. I wish to remark, at this point that it is settled jurisprudence of the Court that where a point of law involved in the intended appeal is a claim of the illegality of the impugned decision, that in and of itself constitutes a good cause for the court to extend the limitation period involved. In Lyamuya Construction Company Limited (supra) a single Justice of the Court elaborated that: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in my view, be said that in VALAMBHIA's case the Court meant to draw a general rule that 10

every applicant who demonstrates that his intended appeai raises point o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point of law must be that "of sufficient importance" and, I would add that it must be apparent on the face of the record, such as the question ofjurisdiction; not one that would be discovered by long drawn argument or process. [Emphasis added] I subscribe, unreservedly, to the above position. Applying the above settled position to the instant application, I have no difficult in holding that the applicant's contention that the decision sought to be challenged is fraught with illegalities is nothing but unsubstantiated general complaint without the details of the alleged illegalities, it is impossible to determine whether the said illegalities are apparent on the face of the record and that they are sufficient importance to merit the attention of this Court. I would, therefore, reject this argument. In the upshot, it is my finding that this matter discloses no good cause for the Court to exercise its powers to enlarge time. Accordingly, I dismiss this application in its entirety. 11

I make no order as to costs because the application arises from a labour dispute where ordinarily we award no costs. It is so ordered. DATED at DODOMA this 24th day of September, 2025. 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 2n d day of October, 2025 in the presence of the appellant in person unrepresented and Mr. Samson Mbamba, learned counsel for the 2n d respondent also holding brief for Mr. George Sangudi, learned counsel for the 1s t respondent connected via Teleconference and Mr. Stephene John Msila, Court Clerk, is hereby certified as a true copy of the original. 12