Nokia Solutions & Network Tanzania Limited vs Honest Mangale (Civil Application No. 549/05 of 2023) [2025] TZCA 928 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 549/05 OF 2023 NOKIA SOLUTIONS & NETWORK TANZANIA LIMITED ............. APPLICANT VERSUS HONEST MANGALE .................................... . ............... . ........ RESPONDENT (Arising from Appeal against the Judgment of the High Court of Tanzania, District Registry at Moshi) fMweneoazi, J.1 ) dated the 21st day of April, 2022 in Labour Application No. 43 of 2020 RULING 25th & 28th August, 2025 MLACHA. J.A.: The applicant, Nokia Solutions & Network Tanzania Limited, was the applicant in Labour Revision No. 43 of 2020 of the High Court of Tanzania at Moshi (the High Court) seeking to challenge the award of the Commission for Mediation and Arbitration for Kilimanjaro at Moshi (the CMA) in CMA/KLM/MOS/ARB/59/2019. It was aggrieved by the decision of the High Court and lodged a notice of appeal before the Court. It also wrote a letter to the Registrar requesting for a copy of proceedings for appeal purposes. It was late in serving the respondent, Honest Mangale, with the letter hence the application for extension of time now pending before me.

The facts relevant to this application can be presented briefly as follows: The applicant's counsel, Luca Elinganya prepared the notice of appeal and the letter requesting for a copy of proceedings for appeal purposes and sent them to advocate Shose Simon Macha in Moshi for filling and service to the respondent. The advocate filed the documents properly in Court but served a copy of the notice of appeal to the respondent without a copy of the letter. The applicant discovered that it was late in serving the letter to the respondent, hence the application for extending the time as intimated above. The application is based on three grounds namely: one, failure to serve the letter to the respondent happened inadvertently; two, the application for extension of time was filed promptly without unreasonable delay; and three, there is an illegality in the award of the CMA and the judgment of the High Court as the CMA acted without. Before me, the applicant was represented by Mr. Lucas Elinganya, learned advocate, whereas the respondent was represented by Ms. Jane James. The submission of Mr. Elinganya was brief and focused. After the background, he submitted that, failure to serve the letter to the respondent was not done deliberate or negligently. It was just a human

error which is excusable. He contended that, having noticed the delay, the applicant filed the present application promptly without delay. He contended further that, there is an obvious illegality in the decision of the CMA because it was made after an earlier decision in the matter hence res judicata. Based on this submission, he urged me to allow the application. Ms. James did not file an affidavit in reply so her right to respond was limited on matters of law. When she was given a chance to respond, she contended that, the notice of appeal lodged by the applicant was filed contrary to rule 83 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) which required the notice of appeal to be lodged within 30 days from the date of the decision. She contended that, the notice of appeal in this case was lodged after 302 days hence invalid. She contended further that, the applicant cannot seek for extension of time to sen/e a copy of the letter to the respondent while there is no valid notice of appeal before the Court. She urged me to strike out the application as being improperly before the Court. In rejoinder, Mr. Elinganya submitted that rule 83 (2) of the Rules has to be read with rules 91 (b) and 93 of the Rules. He contended that there is an exception in rule 91 (b) in favour of the applicant. 3

I had time to examine the record and consider the submission of the learned advocates closely. I will start with the point raised by Ms. James. Rule 83(2) of the Rules states: "83(2) Every notice shall, subject to the provisions o f rules 91 and 93, be so lodged within thirty days o f the date o f the decision against which it is desired to appeal." [Emphasis added] Rule 91 states: "91 where a party who has lodged a notice o f appeal fails to institute an appeal within the appointed time; (a) he shall be deemed to have withdrawn his notice o f appeal and shall, unless the court orders otherwise, be liable to pay the costs o f any persons on whom the notice o f appeal was served arising from that failure to institute the appeal. (b) any person on whom the notice o f appeal was served shall be entitled to give notice o f appeal, notwithstanding that the appointed time has expired, if he does so within fourteen days o f the date by which the party who lodged the previous notice o f appeal should have instituted his appeal."

[Emphasis added] Rule 93 is on the content and formal of the memorandum of appeal. My reading of rule 83(2) shows that, a notice of appeal should be filed within 30 days from the date of the decision. But this period is subject to rule 91. Rule 91 regulates a situation where a party who has lodged a notice of appeal fails to institute an appeal within the appointed time. It has two limbs. Under item (a) he may be deemed to have withdrawn his notice of appeal. Under item (b) the other party is given a right to present a notice of appeal to take over the matter if he so wishes. The law has given him protection. He is not bound by the 30 days rule. He can lodge his notice of appeal notwithstanding that the 30 days has expired, if he does so within fourteen days of the date by which the party who lodged the previous notice of appeal should have instituted his appeal. But with respect to Ms. James, the respondent in this appeal did not fail to file an appeal. He lodged a notice of appeal and withdrew it. In other words, the appeal was withdrawn by the respondent so rule 91(b) cannot come in to play. The legal point raised is thus misconceived and dismissed. Looking through to what happened to the applicant, I did not find difficult to believe his story. I have the view that, failure to serve a copy of the letter requesting for a copy of proceedings for appeal purposes to

the respondent happened inadvertently; not through any negligence on the part of the applicant. It was a human error and therefore excusable. I accordingly, grant an extension of 30 days within which to serve a copy of the letter to the respondent. I make no order for costs. It is ordered so. DATED at DODOMA this 28th day of August, 2025. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Peter Clevery, holding brief for Mr. Lucas Eligaya, both learned counsel for the Applicant, Mr. Peter Clavery learned counsel for the Respondent via virtual Court and Christina Mwanandenje, Court Clerk; is hereby certified opy of the original. H. KINGWELE ► U TY REGISTRAR COURT OF APPEAL 6