Coca-Cola Kwanza Limited vs Erastus Vicent Mtui (Civil Application No. 727/01 of 2024) [2024] TZCA 1044 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DARES SALAAM CIVIL APPLICATION NO. 727/01 OF 2024 COCA-COLA KWANZA LIMITED.. .......... ...... ...... ...... APPLICANT VERSUS ERASTUS VICENT MTUI ...... ..... ..... ............... ........... RESPONDENT (Application for Extension of Time to file Security for the due Performance of the Decree of the High Court of Tanzania, Labour Division at Dares Salaam) (Mga n q a J .) Dated the 31s t day of May, 2024 in Labour Revision No. 220 of 2022 RULING 4h No vember, 2024 KEREFU, J.A.: By notice of motion the applicant herein has brought this application for extension of time under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) to file security for the due performance of the decree of the High Court of Tanzania, Labour Division in Labour Revision No. 220 of 2022, in compliance with the Order of the Court issued on 24th July, 2024, in respect of Civil Application No. 522/18 of 2024 out of time. The application is supported by an affidavit of one Daniel Haufe Ngudungi, l

learned counsel for the applicant. On the other hand, the respondent has filed an affidavit in reply opposing the application. For a better appreciation of the issues raised herein, it is important to highlight a brief background of the matter giving rise to the current application as obtained from the record. That, the applicant having been aggrieved by the decision of the High Court of Tanzania, Labour Division at Dar es Salaam in Labour Revision No. 220 of 2020 where she was condemned to pay TZS 1,650,351,661.54 to the respondent, she lodged Civil Appeal No. 553 of 2024 which is still pending before this Court. Subsequently, the respondent filed Execution Application No. 15749 of 2024 seeking to execute the decree arising from the said Labour Revision. The said application prompted the applicant to file an application for stay of execution vide Civil Application No. 522/18 of 2024 which was granted by the Court on 24th July, 2024 on the condition that the applicant should deposit a security in the form of a bank guarantee on the decreed amount within forty-five (45) days from the date of that Order. The applicant managed to secure the said bank guarantee on 4th September, 2024 and forwarded it to her counsel on 6th September, 2024 which was on Friday. That, on Monday, 9th September, 2024 the next

working day, the said counsel filed the said bank guarantee in Court through online judicial e filling system and the same was admitted, but when he presented it for physical filing, it was wrongly rejected by the Registry Officers on the ground that, it was out of time. It is the contention of the learned counsel that, the physical lodging of the bank guarantee was properly done on the 45th day, as the actual 45th day fell on Saturday, 7th September, 2024 and the next working day was Monday, the 9th September, 2024. Thus, the same was wrongly rejected by the Court Registry Officers, as the applicant was well within the time given by the Court, The applicant's counsel contended further that, the next morning, le 10th September, 2024, he approached the Deputy Registrar and informed him what had happened but, he also insisted that the applicant is out of time and should file an application for extension of time. Hence, the current application which was lodged in Court on 11th September, 2024. In the reply affidavit, the respondent contended that the forty-five (45) days issued by the Court lapsed on 6th September, 2024 and by the 9th September, 2024 the respondent had not received any information from the applicant regarding the lodging of the bank guarantee. Thus, on 10th

September, 2024, the respondent wrote a letter to the Registrar to confirm as to whether the applicant had complied with the Order of the Court. That, in its letter, dated I I th September, 2024, the Registrar confirmed that, until the 9th September, 2024, the applicant had not deposited any document concerning the bank guarantee as Ordered by the Court. At the hearing of the application, the applicant was represented by Messrs. Daniel Ngudungi and Kenneth Mgongolwa, both learned advocates whereas the respondent was represented by Mr. Frank Mwalongo, also learned counsel. It is noteworthy that the learned counsel for the parties entered appearance through video conference linked to the Court of Appeal of Tanzania in Dar es Salaam. Submitting in support of the application, Mr. Mgongolwa commenced his submission by fuily adopting the contents of the notice of motion and the supporting affidavit. He thereafter, narrated the historical background to this application as indicated above and argued that, the applicant has complied with the Order of the Court by depositing the bank guarantee well within time, but the same was wrongly rejected by the Registry Officers, who erroneously computed the time contrary to the requirements of rule 8 (a) and (b) of the Rules. To clarify his point, he

referred me to paragraphs 2 to 11 of the affidavit in support of the application and insisted that, since the applicant lodged the said guarantee on line within time and it was admitted, it was improper for the Registry Officers to reject the physical filling which was done on the same date. He clarified further that, since the last date for filing the said guarantee, as per the Court Order was 7th September, 2024, which was on Saturday, the applicant was well within time when lodged it on Monday, 9th September, 2024, the next working day. As such, the learned counsel urged me to grant the applicant prayers sought in the notice of motion. In his reply, Mr. Mwalongo, as well, adopted the contents of the affidavit in reply and acknowledged the chronological of events narrated by his learned friend in the supporting affidavit that it portrayed the factual situation of the matter. He however, argued that the application has been overtaken by event on account of failure by the applicant to comply with the Order of the Court. He contended further that, since the Order for stay had already lapsed on default by the applicant, there is no basis for this application. That, without an application by the applicant to restore the stay Order, the current application is misconceived.

Mr. Mwaiongo also faulted his learned friend for failure to indicate in his affidavit further steps taken by the applicant to deposit the said bank guarantee such as, evidence of physical admission, seeking of control number for payment and payment of the registration fee for filing of the said guarantee. He contended further that, since, the execution of the decree is currently at an advanced stage, the respondent should be allowed to enjoy the fruits of his decree and not otherwise. He thus urged me to dismiss the application for being misconceived and unmaintainable. In a brief rejoinder, Mr. Ngudungi challenged the submission made by Mr. Mwaiongo by arguing that issues of control number and payment of registration fees are all not applicable in this application, as it emanated from a labour dispute. In addition, Mr. Mgogolwa urged me not to consider Mr. Mwalongo's submission, because all what he stated in his submissions were merely statements of the counsel from the Bar and not reflected in the respondent's reply affidavit. He finally reiterated what he submitted earlier and insisted for the application to be granted. Having perused the record of the application and considered the submissions advanced by the learned counsel for the parties, the only calling issue for my determination is whether the applicant has been able

to advance good cause to warrant extension of time as envisaged by rule 10 of the Rules. There is no dispute that, the Order of the Court which granted a stay of execution was issued on 24th July, 2024 where the applicant was given forty-five (45) days from the date of the said Order, to deposit a bank guarantee on the decreed amount, The counsel for the applicant has stated that, he filed the bank guarantee online on 9th September, 2024 well within the time, and on the same date, he approached the Court Registry for physical filling but, the same was wrongly rejected by the Registry Officers who erroneously computed the period given by the Court. It is on record and as correctly submitted by the learned counsel for the applicant that, since the 45th day felt on a Saturday, 7th September, 2024, the applicant was justified to lodge the same on the next working day, Monday, 9th September 2024 in terms of rule 8 (a) and (d) of the Rules. For the sake of clarity, the said rule provides that: "8. Any period o f time fixed by these Rules or by any decision o f the Court for doing any act shall be reckoned in accordance with the following provisions-

(a) a period o f days from the happening o f an event or the doing o f an act or thing shaii be deemed to be exclusive o f the day in which the event happens or the act or thing is done; and (d) where any particular number o f days is prescribed by these rules, or is fixed by an Order o f the Court, in computing the same, the day from which the said period is to be reckoned shaii be excluded, and, if the last day expires on a day when the Court is dosed, that day and any succeeding days on which the Court remains closed shall also be excluded." Pursuant to the above rule, it is clear that, the forty-five (45) days issued by the Court started to run on 25th July, 2024 and the last day was on 7th September, 2024, which was on Saturday. As such, the following working day being Monday, 9th September, 2024, the date when the applicant filed the bank guarantee online and physically presented it in the Court Registry, it was improper for the Registry Officers to reject the same. I am cognizant of the fact that, in his submission, Mr, Mwolongo challenged the applicant's application by contending that it has been

overtaken by events, and that, without restoration of the stay Order, the current application is misconceived and unmaintainable. He also raised issues of failure by the applicant to seek admission, control number and payment of registration fees. As correctly argued by Mr. Mgongolwa, such narration was merely a counsel's statement from the Bar, as they were not indicated anywhere in the respondent's affidavit in reply filed in this Court on 23r d September, 2024. In the cases of Fweda Mwanajoma & Another v. Republic, Criminal Appeal No. 174 of 2008 [2010] TZCA 96 and Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l of 2014 [2017] TZCA 209, we declined to consider statements made by the counsel from the Bar. In the same vein, this Court is unable to evaluate the submission made by Mr. Mwafongo in this application. In the circumstances, and considering that there is ample evidence that the applicant had acted diligently well within time, but only delayed by the inadvertently mistakes of mis-caleulation done by the Registry Officers, I cannot lay some of these blames to the applicant. If the Registry Officers did not reject the said filing which was submitted well within time in terms of rule 8 (a) and (d) of the Rules, all this confusion could not have

happened. In the premise, I find no reason to penalize the applicant for the mistake that was beyond her control. For the foregoing reasons, I hold that, this application is meritorious and ought to be granted. I accordingly grant this application and extend time for the applicant to deposit the bank guarantee out of time. The same should be deposited in accordance with the law, within five (5) days from the date of delivery of this Ruling. DATED at SUMBAWANGA this 4th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL The Ruling delivered this 4th day of November, 2024 in the presence of Messrs. Daniel Ngudungi and Kennedy Mgongolwa, both learned advocates for the applicant and Mr. Frank Mwalongo, learned counsel for the respondent through video conference linked to the Court of Appeal of Tanzania at Dar es Salaam; is hereby certified as a true copy of the original. 1TARANIA DEPUTY REGISTRAR COURT OF APPEAL