capital decoration building works vs edward rugayaza 45 others 2010 tzhcld 19 6 january 2010

IN THE HIGH C6URT OF TANZANIA

LABOUR DIVISION

AT DAR ES .((•, ,• |

SALAAM I i ' i APPLICATIO N IN LABOUR EXECUTION 418 OF 2009 ■ ;' j' • 1 . -p’ iy- ■. . , /■ 1' I i •>. ; - CAPITAL DECORATION & BUILDING WORKS - APPLICANT/3udgment debtor AND • •.! EDWARD RUGAYAZA & 45 OTHERS - RESPQNDENT/Decree holder - (Original CMA/DSM/KIN-ILA/2212) 6 / 1/2010 & 8 / 1/2010 Rv/evemamu R. M. 3.:

RULING This application was brought by the applicant/judgment debtor cum employer, seeking an order for stay of execution of the Registrar's order dated 13/10/2009 issued in execution of the Commission for ■ i ' ■i I i . i :i Mediation and Arbitration (cma) exparte award in the sum of Shs 40,841,052.02/- issued ;r ,f ^vour of the respondent/decree 'holder'com employees. The CMA award in question was handled down on . . 'J '■ r : i 18/9/2009. The application is filed under Order xxi rulej;24(l), , ■ 1 | ~Sl*W| i| section 68 anH qs ofthe Civil! Procedure Code ' cap 33r .e . 20021 j \ (herein CPC) andsection 91 (2) of thebmplovment and Labour i i Relations Act.6/2004 (herein-the Act).Both parties were represented ! S ■j I 't t liij' by advocates namely Mr. D. J. Msemwa and Mr. A. M. Balomi for the applicant and respondent respectively. I wish to commence by examining the basis of this court's / i competence in the matter, an jissue not directly addressed by the parties. ) {■ • m'iL- The application was brought unde • provisions o f the CPC and ['■ ’• % : K.-y. •!. the Act. The procedures under the CPC are not ordinari y a-- '| | . ■| ■ p....r ■ ;* V. in conduct of cases in this court; but; under section 89 (2) of the Act, ; j>-,;f. ;■! L " •' ! ! ipCElKi. ; "1? read together with rule 48 (3) of the Labour Court Rules. GN 106/2007 (the rules), an arbitration award by CMA is served

and executed in the Labour Court "a s if it were a decree o f a court o f law". ' ' i | : I t 1 Under the rules a court decree is enforceable by the court exercising powers conferred by the CPC, and enforcement is made following V * -.1**j I 'J ■ : . “ .j ’ * ! I. I, 4; ! ; ■• - application by the decree holder under rule 49 (2) of the rules. i.' i i ! ■ '"I?J L: JH The Registrar(s) of this court appointed under section 54 of the ■ ;■ i ■ '! I „ 4: f ■ .iftSaWapMlfe m .,’- j ,fi| „ ......... . . " - L i .. . , .. 'S' Labour Institutions Act. 7/2004 are responsible for execution processes under Order XLIII (g) to (i) cf the CPC. It is under sud powers that dppiicalion fur execution of the CMA award, subject matter of the impugned Registrar's order was filed on 5/ 10/2009 as I >1; I i ; ::i; Exe. No 418/2009.. I hasten -to mention at this stage that the f; , ! : ! ;|l | !» ~ subsequent execution process was rather unusual. The process went thus: 1. On 13 /1 0 /2 0 0 9 , the Registrar ordered execution to proceed and or ■ :• ■ ' " I | 16/10/2009, a 'prohibitory order' Was issued. On 20/10/2009 the applicant filed the present applicatior/for stay; but on 17/11/2009, the Registrar issued an order fot/ "proclamation for sale" yet on 15/12/2009, the Registrar issued an order worded as follows, " hearing on 15/2/2010, status quo be maintained till then.' , • i 2. It is not clear to me

what status quo was ordered to be maintained; it was only following complaints by the respondents regarding the stalled i 1 |", execution, that the parties were summoned and questioned regarding the pending matter, when it was agreed that the pending matter was the present application filed on 20/10/2009 subject matter of this ruling. It is to be noted that the application sought to be stayed is I ! the Registrar's order of 13/10/2009 although long after the applicant filed the present application on 20/10/2009: on 17/11/2009, the Registrar issued a proclamation for sale- almost an end process in execution. It is not clear again what prompted the last I i ,1. order of 15/12/2009, subject of complaint by the respondents, or | i 1 whether the proclamation for se-e was stayed by that last order. What is clear from the above is that the decree remains : . unexecuted but three issues have exercised my mind. The first is ! ! j *-! whether the cjjrent appM-rSion filed on 20/10/2009 to set aside the Registrar's order made on 13/10/2009 was not overtaken by events when the Registrar issued the proclamaton for sale on 17/11/2009. ! ! ; ' The second is whether this court h?= nowers ro\/io\/v/ the Registrar's order in execution- that is whether the order made by the Registrar on 15/12/2009 ordering the status quo maintained, which amounted to an order for stay can be reviewed by this

court. And last, whether ‘ ■n. • . •■•xuir-Jk t his court has powers to deal with the application for stay,Spending tearing o f the applicants' application by the c m a . On the first and second jssue, I find that the order of .3/10/2009 which was followed by the proclamation for sale order of L7/11/2009 was not acted upon instead it was overtaken by the i|. 4. i f ,<£ •.« • I 1 '• : t. jrder made on 15/12/2009. The fact is that the decree remains jnexecuted because that last order in effect amounted to a stay of IS: i 1 ;• execution awaiting hearing of this application. But that last order 5: J simply ordered the status quo maintained pending hearing of the ! ' : j ' i ; ■ vX ■i{' application for stay filed under a certificate of urgency. It was treated with the urgency required and is now being, heard earlierl than j . ordered, as such, that order is no longer an issue. Last, the applicants seeks an order for stay -pending hearing of ■ •j ■ ■■' '■' i i ij '"I i their application to the c m a for extension of time within which to apply to set aside the exoarte award. That ^ection^ however, deals with application for stay by an appellate court but, this cnnrt being the executing court, I rina that it has powers t!o deal with the application ■ for stay under Order xxi rule 24 and Order xxxix rule 5 of the CPC, : J :\ ■ j • . : and-to apply the usual principles that govern

practice in grantina stay i . ' " of execution. i , , . , tI Further, after careful consideration of the facts of this case i I ! | :i (which is detailed below) in light of the law, particularly section 68 and 95 of the CPC read together with rule/55 (1) and (2) of the I/ ! i , ; . s-; Labour Court rules, I find that this court hayinherent powers to act in the matter in the interest of justice. That done I find it necessary, to give a brief background of the history of the dispute between the parties prior to the impugned Registrar's order for a better appreciation of the reasons for my decision, even at the risk of making this ruling unduly long. I find it convenient to give the same chronologically in point form as follows:- 1. The respondents referred a dispute to the CMA of unfair termination against the applicant on 11/12/2007 claiming compensation of an amount equal to 12 months salary and other: statutory rights. On 20/5/2008, the'CMA issued an exparte award • I i ]; ' under section 87 (3) of the Act. i 2. Subsequently, the respondents made an application for execution of that decree dated 10/6/2006 registered as No. 170/2008. That I | ! was followed by the applicant's consolidated application filed under a-certificate o~ j e rsey on 30/6/2.303 for sir,* or execution of that; award and its revision. It was registered as Revision 105/2008. I should point out that at least at this stage, the employer was aware i - j •!: of existence of the case preferred by its employees.

3. After a number of processes, the DR made an order on 25/8/2008 i * ■ • I . . •- „ • 11 that: "The applicant/respondent is ordered to file his applicatior o f review at CMA within one week and to deposit.... as security". Apparently the m atter proceeded at the CMA as indicated below. Ultimately in its ruling dated 6/10/2008^the cMa dismissed the application on ground that the same wa/tim e barred, because the impugned award was issued on 20/5/2008, while the application to ■• '■ •; t. iI ii•.f .Hv.i■ set it aside was filed on 9/9/2008 On 24/10/2008. vide Mr. RutahiwSa advocate, the applicant filed I i ! ■ 7 Revision No. 239/2008 challenging the, same CMA, award of V.I ■‘ I. I ! I"i ' i i ■ • 20/5/2006, already subject of the unconcluded Revision 105/2008. In that second application,- the following orders were sought: 1 • 'T v I j‘‘l&J.i: 1. That this Honorable Court be pleased to reverse and set aside exparte judgements and Awards delivered by the commission for mediation and Arbitration (CMA) on 19th May 2008 and 20th May 2008, against the applicant. , •' ; |I - ' . f I ; I 2. That this Honourable court be pleased to make any order it considers appropriate for the ends of justice. 1 I *. I. i ! 4 '< While that revision and execution matters were pending, so disconcerting was revealed.

5. In a ruling dated 13/11/2008 in execution file 170/2008, the DR ■ : : •. j ' I ; - . . V. ■■ r.' '■ •!,! a stay ct stat'^-que maintained-m. I % I -I' . ground that "I came to discover that there is two awards delivery 1 I | 4,- . „• 1 by the same arbitrator, the first one dated l$ h May award T shs 36,482,566.02 and the second one dated 2Cfh May, 2008 award T sha 40,841,052.02 to my opinion this is a triable issue ...to be forwarded to Honourable Judge for further direction/decision. " * ■*»* v. I t r ■• r \ m (order/statement) in the records, titled/"Maelekezo ya Tume Kuhusu Usahihi wa'Tuzo" stating that tKe correct and only award l j I : { : M was the one with the figure 40 841,052/02 and not the second one in the sum of shs 36j 482566./=, whose origin he could not , . , . , • verify/understand. I should again point out that this was the third time the dispute between the parties was considered bv the CMA, and the applicant was represented. t L i 7. Ultimately, revision 239/2008 was scheduled for hearing before this I J ' *' *' i j • |’ 4 i . i •I court and in its ruling dated 30/4/2009, (delivered in presence of both parties representatives) Revision 239/2008 and 105/208 | -1 were ordered consolidated and; a. the CMA award subject matter of both revision application^ j | J quashed on ground that the CMA had proceeded without I jurisdiction when it failed to first hear the application for I ■; i condonation of late referral filed by the applicants; b. ultimately it was ordered that the matter "should stand as it i -■ ' ' m m m m i *i was after the condonation form was filed, and the dispute should thereafter be processed according to law"and; c. The court expressed its dism ay and disbelief regarding the issue of appearance of two CMA awards from same proceedings.

8. The CMA then heard the application for condonation of late referral exparte and granted the same on 16/7/2009. Thereafter; the . | dispute was arbitrated again exparte and: an award subject matter __ _ ___. •_ .! nf trie applicant's key complaint issued1on 18/9/2009, whose execution application No 418/2009 was filed in this court or 5 /1 0 /2 0 0 9 as explained herein. I have read the award ir question, the arbitrator therein explained that both the applicatior I ; I ■■ NV • for condonation and the arbitration were conducted exparte, aftei the CMA was satisfied that the applicant was served but chose not : i 7 to appear. Fortunately, the undisputed facts are less complicated. The applicant seeks execution of the award stayed i and the cma !i. MSei.' respondents want it executed. Mr Msemwa for the applicant gave grounds for the application in his affidavit and oral submission'. They f... • ; ‘ r . • | * I ’• 1 tIE* can be sum m ed up thus:- » T he applicant has filed a tw in ap plication in the c m a ; « ! ’ . ' t i ii! i* extension of time to apply to set aside the exparte ;T , J judgment, and the application to set aside the award.fei,. •Vijf » The award was wrongly issued exparte because the | j applicant was not served to appear. | I © In response to the respondent's averment in the affidavit that the applicant was served vide his advocate one j

: Rutahiwha, he submitted that the latter was never ■ ! ■ ': instructed to represent the applicant, as such; service on him amounted to no service. • i * “Tr:::; i? the is ppiic'^ucr.s penair.grrr the CMA would be rendered nugatory, on the other hand, j j I V . the applicant's business issolid and it is capable of paying :v. , I Ir J'. • If ijfa j| the decree holders - b u t only a fte r th e c a s e ‘is * *. .-■» j j inter-partes and th e ir entitlem ents proved. In response, Mr. Malomi for the respondents submitted that:- • The facts disclosed in the applicant's affidavit and submission in court lack merit as n o ! sufficient 'cause to support the application for stay have been disclosed. • In regard to the exparte award, counsel submitted that the 1 1 ■* applicant was duly served according to law. Service was made vide the advocate who represented1the applicant in the case at j ' t . %, • | .! ^ j j . | " ,4 !1 the CMA and subsequent application for revision 105 and 239 (explained herein above). That ethically and as a matter of procedure, if the advocate had ceased to represent the applicant, either himself or the applicant should have informed the respondents and the c m a but did not. . . . ■ ■ ,. • ' ' c|' ’ In reply, the applicant submitted i that service to a former advocate is no proper service, that Mr. Rutahihwa was never instructed by the applicant to handle

the case in the c m a following this court's order of 30/4/2009 - (from the facts the fourth time •i J • . I : ♦ » V 7 *1 around). me issue ror decision is one namely Whether or nut yoou icSoufte have been adduced to make this court exercise its discretion in ! ! i L ,• , ' favour of granting the applied for order. To* begin, J agree with :.r T . . . . A' submissions made by counsel for the respondents that an appeal or pending application in this case, cannot operate as a bar to execution . ... ; .• j ' ■ ;i of decree. Stay can be ordered on conditions stipulated by law. Considering the issue, the CAT in Albert Braganza & Another Vs Mrs. Flora % /(/-•% % Lourdu Braganza (1992) TLR 307 - stressed that ^an order for stay can j i / be given when compelling reasons are showr/ Under the law, stay is grantable when it is found that one " substantia! loss my result to the party 1 | applying for stay o f execution unless the order is made; two that the application has been made without unreasonable delay; and that security has been given by the applicant for the due performance o f such decree or order as may ultim ately , j . i i i . * •i be binding upon him ." a ;:C;.j ! I- I begin with consideration of the second issue, whether the application has been made without delay. I believe the issue of delay by the applicant has to be looked at in the context of the bigger : picture of the

history of the dispute between the parties well painted under subparagraph 1 to 8 herein above. The applicant has I 1 r submitted that he has filed an; application for extension of time to i ,■ :j,4; •; j , apply for setting aside the exparte award. An award claimed to have I ; t been made without service of summons on them. From the history explained, no reasonable tribunal would believe , ' .. ,. Ir ., J '■ , I !. , : i the applicant was not aware of thp r?f'Wndjents caselin the cm a , when the same was made following an order of this court, delivered in the presence of its advocate, who must have reported back the '' '! j j 1 11 ! result even if !i actions were withdrr,W«*i from him thereafter. The 1* I : , 1‘ . i distinct impression created is that the applicant has not acted with ■ i h v vigilance in the matter, its vigilance is only seen when an execution mb I m, w i •* order is served. Without prejudging the case before the / m a , it is dbvious the applicant was aware of the case all the time, particularly the second and third time the same was before the CMA. He had counsel. If j j instructions had been removed from counsel the fourth time around, the advocate was duty bound to inform the other side and the c m a . ’, "p" ■; ■ :1 ■ ’ : !i ■ -! }’!I There was no evidence to show that he did and as held a number of t, i> r 1 a I ■• ■ ■ i j times by the courts in this

country, negligence or inaction on the part i of counsel is not sufficient cause for extending time. I wish to invite the applicant to be mindful of the observations made by Lubuva J.A, , :! -i I in Abdul Ramadhani Vs Said Ramadhani Baamary and another, Civil > ' - Application No. 14 of 1994, (TCA), a case where inaction by counsel was put up as a ground for extending time tha„. ■ •!• - J I i "The legal position regarding negligence and inaction in the ■. ' j** ,v- • 1 i r ■ .1 y performance o f Counsel's duty in conducting the client's | cases has been recapitulated in a number o f cases by the ! • j- fpj I i I i ! 1 Court o f Appeal fro Eastern Africa and this Court. It is common knowledge that negligence or inaction on the part V - if . • • i j o f counsel which causes in ordinate delay in the processing I; I j I o f cases has norm ally been held by the Courts as not as ; . , J ’ .;*'* I I -; t n o t Sufficient reason tor extenamg the time unaer Ruie u ot ; ! I 1 ; it* j.; the Court Rules unless acceptable explanation is given. However, in rare and peculiar circumstances, depending fe , i upon die m erits o f individual cases, mistake o f Counsel • I I may be considered as sufficient cause. The logical behind this is easy to appreciate. Once an individual person has entrusted his or her case to counsel to defend the case, it is expected that such counsel is to exercise a ll

due ! ! I ' diligence and industry professionally'in handling the case at I < - a ll stages. I f negligence and mistakes /on the part io f counsel were to be taken lightly, there would be no and to ' I I j 'I f: ' ' •; ■. litigation in Court as losing parties would seek to re-instate cases out o f time on grounds o f negligence on the part o f counsel. On the basis o f this principle, the Courts have taken a strict view on alleged acts of\negligence by counsel !l > "'!•••;/ 'J '■* ! • j ' ’ ' I (The Court there then quotes, with approval, the cases o f ■g*j.’.I'.i i ij|!■ Henry Bharma! and Bothers V. Santosh Kumari w/o J. N. Bhofa (1961) E.A. 679; Kiahoma A li Malim i v. Abbas Yusuf Mwinaamno C ivil Application No. 5 o f 1987 (unreported): Institute o f Finance Management and Simon ManvakL Civil Application No. 13 o f 1987 (unreported) and M aulid Juma v. Abdalla Juma - Civil Application No. 20 o f 1988" | •i • I ' W': (unreported). Referred to in Misc Cr. Appl. 109/1994 (Mwanza registry - unreported). That apart, the applicant after withdruwmy nion uv-uuiio uom its counsel should have pursued the case as ordered by the court. It is i . ; in that wider context that I consider the issue of actinq: without •t I i | ' i inordinate delay and find that the applicant's inaction was a • : ; ! I•, i- --h- ! \ deliberate cfcr-gend of the necessity trie dispute betweerirtfe .j ; j ■' !

I parties resolved, it was reckless at the very least and no reasonable i ! r : if f 1 tribunal would grant an application in the background of this case.' .;r.;£1 Admittedly, th e 1other ground considered in granting such* an application is that: "the loss or injury that an applicant would be subjected' to. : !* 1 The loss had to be o f an irreparable nature which could not I ! be adequately compensated bv wav o f damages;" See, CAT in Nicholas Were Lekule Vs Independent Boiwer (T) Ltd & Another 1997 TLR 58, The issue for decision is whether the applicant has shown that i i- 1 ,1: he would suffer irreparable loss. I ' •j '-S.- < In the applicant's affidavit in support of this application it was pleaded in the last paragraph that irreparable loss would be occasioned if the application is not granted. At the hearing much of the submission was focused on showing merits of the application for setting aside the exparte award, in the event extension to file the I * .1 same was granted by the cma . As to the issue of loss, the applicant submitted briefly that the decree holders would not be able to refund the monies received in the event the decree is set aside after] execution. The applicants ; | ' I y.-”':., " though added in reply that it would be able if ordered to put up hall i j i ■ r ■ : j| the amount; in r?ch ?nd trx- ether half by-pu*&f registered properties - m ■' ' i : ’

I as securit?/. Conside-ing Li ie histor/ of this case however, I find that nc compelling reasons exists to move this court to grant the application i , \ • --n and it would not be in the interest of justice to deny the decre< holders their valuable right persistently sought, by prolonging th< process or execution to trie point may De wnen the value of the rights earned would be meaningless. :• I At this juncture I should repeat the observation made by the 1 i i 1• court in Amratial Damondar vs B. Jariwalla (1980) TLR 31 that; "the rule o f law is not to be equated with a reign o f iitigiousness... dilatory procedure may defeat the very purpose o f the judicial process, nam ely to vouchsafe justice, since if litigation is p ro lo n g ed n o t only is there waste o f time and money and j I ~'ij m oral e n e rg yb u t circumstances may change in such a way that what would have been at the outset a ju st conclusion is lin the end no longer s o " To conclude, I dismiss this application and order the file returned to the ! i Registrar to enable the execution process proceed. j. • •, : 4 5 V■X-i "v "•- - " ' '4 "V f'* t. '"V I I I; 1 R.M. Rweyemamu • * •\> ••• _

JUDGE VV :J Date: 8/1/2010 Coram: R.M. Rweyemapnu, J. Decree Holder: Mr. Balomi Advocat? - Present Decree Deliico*: Mr. L>. hiieniwa Advocate Present C.C. Salehe COURT: This matter is coming for ruling. Ruling dcJiverec this 8/l/2ujl0 in presence lot parties' representatives as above. M. Rweyemamu

JUDGE 8 / 1/2010