A1 Outdoor (T) Limited vs Godfrey Shuma (Civil Application No. 40/18 of 2024) [2025] TZCA 969 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 40/18 OF 2024 A1 OUTDOOR (T) LIMITED ........ ............................................... APPLICANT VERSUS GODFREY SH U M A ................. ........... ...................................RESPONDENT (Application for extension of time to present Bank Guarantee pursuant to the Court order in Civil Application No. 296/18 of 2022) fWambali. Kerefu And Maiqe. JJA.) dated the 20th day of November, 2023 in Labour Revision No. 303 of 2021 RULING 27th August & 15th September,2025 RUMANYIKA, 3.A.: This application traces its genesis from the decision of the High Court of Tanzania (Labour Division) vide Labour Revision No. 303 of 2021. In that matter, the decision of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/DSM/I LA/518/2020/203 was reversed on the 25th March, 2022. The High Court found the respondent's employment contract to have been unfairly terminated by the applicant. The latter was ordered to pay the respondent TZS. 136,319,230.77 being unpaid salaries for the remaining

contractual period. Dissatisfied, the applicant lodged a notice of appeal to this Court seeking to assail the decision of the High Court. However, alongside the appeal process, the respondent initiated the execution proceedings. Consequently, the applicant lodged Civil Application No. 296/18 of 2022 for stay of execution of the impugned decree. In its ruling dated 20th November, 2023, the Court issued an order of stay pending the determination of the intended appeal. That order was given upon a condition precedent that the applicant deposit in the Court a bank guarantee equivalent to the said decreed amount within sixty (60) days from the date thereof. Nonetheless, the applicant did not comply with that order within the time frame. He has therefore filed the instant application under rules 4(1), 4(2) (a) and (b), and 10 of the Tanzania Court of Appeal Rules, 2019 ("the Rules") seeking an extension of time within which to furnish the afore stated security for the due performance of the decree. The application is supported by an affidavit of Mr. Enock Zadock Koola, the Executive Director of the applicant. The ground fronted by the applicant is that the delay to file a bank guarantee was not her fault but due to some staff members of the bank responsible for approval who

were on leave, not readily available. The respondent did not file an affidavit in reply. On the date the application came for hearing, Messrs. Gilbert Mushi and January Kambamwene, learned counsel represented the applicant and the respondent, respectively. Mr. Mushi adopted the founding affidavit as part of his submissions in support of the application. In a nutshell, he asserted that the delay in filling a bank guarantee within the sixty days' time was not the applicant's fault but due to inaction of the bank. Elaborating, Mr. Mushi contended that, at first he requested it in writing on 24th January, 2025 vainly as it was towards end of year and therefore, the responsible bank officials were on annual leave. And so was for the reminder letters which could not work out. He added that, being an individual incapable to refund, the respondent would not be prejudiced had the application be granted. Being prompted by the Court, Mr. Mushi asserted that, though belatedly, the bank was ready to do the needful immediately after 2-3 weeks of the filling of this application. The applicant had no option but seek extension of time to file a bank guarantee. And the Court could not compel the bank, it was argued.

In reply, Mr. Kambamwene informed the Court that no affidavit in reply was filed. Nevertheless, he blew both cold and hot contending that, no sufficient cause has been shown for the grant of extension of time. Also, he wondered why the seemingly non-complex process to procure a bank guarantee took the applicant unnecessarily so long. In the same breath and quite unusually, Mr. Kambamwene did not object the application. He did not have qualms if the applicant is given fourteen days extra to present a bank guarantee. Being prompted by the Court, he quickly responded that, the statements that the bank is ready to release the long-awaited bank guarantee is coming from the bar and not averred in the founding affidavit. He thus, urged me to grant the application as presented. As such, notwithstanding Mr. Kambamwene's concession to the application, the decisive question is whether it has met the threshold set forth under rule 10 of the Rules. See- CRDB Bank Ltd v. George M. Kilindu & Another (Civil Application 87 of 2009) [2010] TZCA 118 (13 July 2010; TanzLII) and Mumello v. Bank of Tanzania (Civil Appeal 12 of 2002) [2006] TZCA 12 (12 October 2006;TanzLII). 4

It is a rule of thumb that extension of time for the doing of an act under rule 10 of the rules can be granted only upon good cause being shown by the applicant. For clarity, that rule goes thus: "The Court may, upon good cause shown , extend the time limited by these Ruies or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended . " In the light of the legal principle and excerpt above, therefore, the applicant has to explain how she utilized the period of 60 days from the 20th of November, 2023 when she was ordered to deposit a bank guarantee to 19th January, 2024 when that order lapsed. Needless to say, the applicant has to exhibit diligence and promptness inter alia, by accounting for each day of the said delay. See- Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011, TANZLII; TanzLII).

It is averred that, the applicant in the supporting affidavit alleged that, she initiated the process to procure a bank guarantee instantly by a letter to the Managing Director BancABC TZ (the bank) on 24th November, 2023 (as per Annexture Al-2 to the application). She also stated to have written a reminder letter to the bank on the 10th January, 2024 (Annexture Al-3) on the same subject. Nevertheless, her averments apart, the applicant did not present any tangible material at least to show that the bank acknowledged to have received any one of the alleged written requests. Under the circumstances, therefore, I will not rely on the applicant's plain and unauthentic allegations. As such, her diligence in making follow ups of the matter left much to be desired. Her inaction contravened the legal principle that a party seeking extension of time is duty bound to provide the relevant material upon which the Court to exercise its discretion. We reiterated it in Oswald Masatu Mwizarubi v. Tanzania Fish Processors Ltd. (Civil Application No. 13 of 2010) [2012] TZCA 450 (1 March 2012; TanzLII). Therefore, I do not agree with Mr. Mushi's contention that the applicant acted diligently but the bank's bureaucracy resulted into the applicant's failure to comply with the stay order within time. As such, the applicant's delay in furnishing a bank guarantee was caused by her sloppiness and inaction.

It is as good as no account for the delay was given. After all, it is open secret that, the strength of a bank and customer relationship is based on mutual trust between them. Therefore, the applicant's total failure to comply with the stay order or, as is in this case, unexplained delay to furnish a bank guarantee is tantamount to a serious default rendering the stay order to lapse automatically. Without prejudice to the observations above, also notably under paragraph 15 of the supporting affidavit, the applicant fronted illegality of the decision of the High Court as sufficient cause for the grant of extension of time. I need not belabor it more than is necessary. She should have sufficiently accounted for each day of the sixty days' delay which she did not, nor did she show, if any, that the hindering factors were beyond her control. Put in other words, unlike in an application for extension of time to file an appeal, whether or not, in this application the High Court's decision is tainted with illegality is irrelevant. It is so because, before me the application does not intend to challenge the Court's stay order in Civil Application No. 296/18 of 2022. Rather, it seeks for an extra time for the applicant to furnish a bank guarantee. Therefore, the issues of the applicant being prejudiced or likely to suffer substantial loss are neither here nor there. To hold otherwise, it is

tantamount to hearing a disguised application for stay of execution which was finally determined by the Court long ago. All said, now that the applicant did not justify the delay to furnish a bank guarantee, the institution of this application was unjustified. It closely resembles an abuse of the court process to say the least. Therefore, the application is hereby dismissed with costs. DATED at DODOMA this 10th day of September, 2025. S.M. RUMANYIKA JUSTICE OF APPEAL Ruling delivered this 15th day of September, 2025 in the presence of Mr. Gilbert Mushi, learned counsel for the applicant and Mr. January Kambamwene, learned counsel for the respondent both through Virtual Court and Mr. Elias Nkwabi, Court Clerk is hereby certified as a true copy of the original. ^— ^ 4 R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 8