Shaizad Azad Bhanji vs Raju A. Mwambungu and 163 Others (Civil Application No. 270/18 of 2023) [2024] TZCA 1049 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 270/18 OF 2023 SHAIZAD AZAD BHANJI.................................................................... APPLICANT VERSUS RAJU A. MWAMBUNGU AND 163 OTHERS ........................ . ..... RESPONDENT (Application for stay of execution of the decree of the High Court Labour Division at Dar es Salaam) (Mgangg, J.) Dated the 23rd day of September, 2022 in Revision No. 182 of 2022 RULING 28th October & 5th November, 2024 MGEYEKWA. J.A.: The applicant, Shaizad Azad Bhanji, has lodged this application seeking an extension of time to file an application for stay of execution before the Court. The application is by way of notice of motion made under rules 10 and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit sworn by Mr. Evans R. Nzowa, learned counsel for the applicant. Briefly, the present dispute arose as follows: On 19th April, 2022,the applicant was summoned to appear before the Deputy Registrar of the High Court Labour Division. On 25th April, 2022, the Deputy Registrar delivered a

Ruling in favour of the applicant and declared that he was one of the directors of the decree debtor liable to be arrested and detained as civil prisoner in execution of the award against the decree debtor's company. Aggrieved, the applicant unsuccessfully lodged an application for Revision No. 182 of 2022 at the High Court Labour Division. The High Court issued an order to summon the applicant to show cause as to why he should not be detained as a civil prisoner. Undeterred, on 24th October, 2022 the applicant lodged a notice of appeal before the Court and an application for stay of the execution vide Civil Application No. 738/18 of 2022 which was withdrawn on 11th April, 2023. Hence the instant application for extension of time to file an application for stay of execution. When the application was called on for hearing, Mr. Evans Nzowa, learned counsel represented the applicant. The hearing proceeded exparte against the respondents who defaulted appearance despite being duly served with the notice of the hearing. Therefore, the matter proceeded exparte against them. When the applicant's counsel was given the floor, he began by fully adopting the contents of the notice of motion and the supporting affidavit.

The learned counsel was brief and straight to the point. He submitted that applicant was served with a notice to show cause on 20th November, 2022 and 5th December, 2022 the applicant filed an application for stay of execution in Civil Application No. 738/18 of 2022. He further submitted that on 4th April, 2023 the applicant filed an application to withdraw the application for stay of execution for being lodged out of time, and the same was marked withdrawn on 11th April, 2023. Mr. Nzowa continued to submit that, thereafter, they realized that the application for stay of execution was lodged within time. Following the said discovery, the applicant lodged the instant application. In conclusion, he implored me to grant the applicant's application. From the foregoing submission, it is essential to reiterate that the Court's power of extending time under Rule 10 of the Rules is both wide ranging and discretionary but the same is exercisable judiciously upon good cause being shown. It may not be possible to lay down an invariable or constant definition of the phrase "good cause", but the Court consistently considers such factors like, the length of delay involved, the reasons for the delay; the degree of prejudice, if any, that each party stands to suffer depending on how the Court exercises its discretion; the

conduct of the parties, and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal or revision. There are numerous authorities to this effect. See for instance the cases of Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd (2006) TLR 235, Dar es Salaam City Council v. Jay anti la I P. Rajani, Civil Application No. 27 of 1987. Equally, important is that an application of this nature must be filed as soon as an applicant becomes aware of the need to do so and he is obliged to account for the delay for every day within the prescribed period. There are a plethora of legal authorities in this respect, in the case of Bushfire Hassan v. Latina Lucia Masanya, Civil Application No. 3 of 2007 (unreported), it held that: - "D ism issal o f an application is the consequence befalling an applicant seeking an extension o f tim e who fa ils to account fo r every day o f delay" See also Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, (supra) and FINCA (T) Ltd & Another v Boniface Mwalukisa,

Civil Application No. 589 of 2018 [2019] TZCA 93; (15 May 2019 TanzLII). The crucial issue for determination by the Court is whether the applicant has accounted for each day of delay. The reasons that has been advanced by Mr. Nzowa and also found on paragraph 6, 7 and 8 of the supporting affidavit is that, the Civil Application No. 738 / 18 of 2022 for stay of execution was withdrawn on 11th April, 2023. Computing time from 11th April, 2023 when the application for stay of execution was withdrawn to 21st April, 2023 when the applicant filed the instant application, is clear that it is a delay of ten (10) days. The applicant was expected to account for such delay and give reasons in the supporting affidavit explaining why he stayed mute for ten (10) days. I have scrutinized the applicatn's supporting affidavit, unfortunately, there is no any single paragraph where the applicant has accounted for the days of delay. According to paragraph 8 of the supporting affidavit, he said that, he withdrew his application on 11th April, 2023. Thereafter, the applicant did not state as to what tranpired and step taken before lodging the instant application. I am therefore not pursuaded that, the applicant has accounted for the days of delay from 11th April, 2023 when he withdrew the

application for stay of execution to 21st April, 2023 when he lodged the instant application. In the premises, I find and hold that, the applicant has failed to adduce good cause to justify the grant of extension of time. Consequently, the application is without merit and is accordingly dismissed In the circumstances, I make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 5th day of November, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 5th day of November, 2024 in the presence of Mr. Hamis Katundu, learned counsel holding brief for Mr. Evans Nzowa, learned counsel and in the absence of the Respondent is hereby certified as a true copy of the original.