RULING Learning Institutions vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS LABOUR APPLICATION NO. 19912 OF 2024 (Originating from the Commission for Mediation and Arbitration at Songea in Ruvuma Region in Labour Dispute No. CMA/RUV/SONG/6/2024/52024) AGUSTIVO HIGH SCHOOL …………..……………………….…………. APPLICANT

VERSUS ALLY SHABANI HUSSEIN .……….………………….…..…………... RESPONDENT

RULING 04th & 22nd November, 2024. KAWISHE, J.: The applicant herein above named, filed this application by way of chamber summons requesting this court to grant an order for stay of execution of an arbitral award passed by the Commission for Mediation and Arbitration at Songea in Ruvuma Region. The application is made under the provision of Order XXI, Rule 24 (1) & (4), Order XLIII, Rule 2 and section 95 of the Civil Procedure Code (Cap. 33, R.E 2019) (the CPC) and any other enabling provision of the law. 1 The application was supported by an affidavit sworn by Mr. Mosses Mdaka Mapunda, the headmaster and Principal Officer of the applicant stating the grounds upon which the prayers sought in this application are premised to. Also, the application is vehemently resisted by the respondent through a counter affidavit affirmed by the respondent himself. According to the affidavit and the counter affidavit filed by the applicant and respondent respectively, before the Commission for Mediation and Arbitration at Songea (the CMA) in Labour Dispute No. CMA/RUV/SON/6/2024/5/2024, the applicant in this application was the respondent and the respondent was the applicant. That the arbitral award was obtained through ex parte hearing following the applicant’s failure to attend before the arbitrator. The ex parte proceedings before the CMA concluded in favour of the respondent. Thereafter,

the respondent filed an application for execution before the High Court requesting for the attachment of the applicant’s bank account No. 0150015181800 – CRDB BANK. The application for execution was also heard and determined in the absence of the applicant. The ruling of the same was delivered on 7th August, 2024. This court granted the prayer as sought. Upon being served with the ruling, the applicant filed an application to set aside an ex parte award before the CMA. 2 It was deponed by applicant that, this court issued an order for attachment of the applicant’s bank account, which is the only account used by the applicant in running her office including purchasing food for the students, teaching materials and paying salaries to the employees. The applicant deponed further that, if the bank account will be attached, the applicant will suffer greater loss and inconveniences than the respondent if the application is granted pending determination of the application to set aside an ex parte arbitral award lodged before the CMA. The applicant averred further that, there is a great chance of succeeding in the application filed before the trial court for the reason that the ex parte arbitral award is tainted with illegalities which occasioned injustice on part of the applicant. When the matter was called for hearing, the applicant was represented by Mr. Gaudence Ndomba, learned

advocate whereas the respondent appeared in person and fended himself. The hearing of the application was by way of oral submission. Arguing in support of the application, the applicant’s counsel requested for the prayers made in the chamber summons and fact deponed in the affidavit sworn in support of the application to constitute part of his oral submission. He amplified that, the execution to be carried out is in respect to an ex parte arbitral award issued by the CMA 3 in which the respondent was to be paid TZS. 13,500,000/= of which the applicant has filed an application before the CMA to set aside. He added that, if this application will not be granted, the application which is pending before the CMA will be useless and the applicant will suffer irreparable loss since the bank account which is subject for execution is used by the applicant in running his daily businesses including students’ welfare as well as meals and salaries for the applicant’s employees. That the inconvenience and loss to be suffered by the applicant herein will be more than the loss to be suffered by the respondent herein if the court will grant the prayer for stay of execution. In reply, the respondent resisted the granting of the application for stay of execution. His basis in objecting the granting of the stay of execution hinges on the ground that, the application pending before the CMA has no

merit since the ex parte hearing was ordered following the applicant’s failure to honor the orders and summons issued by the CMA. The respondent was of the view that, there is no chance for the applicant to succeed in the application for setting aside the ex parte arbitral award filed before the CMA. He added that, an application for execution was a result of the applicant’s failure to abide with the order of paying the respondent the amount awarded in the arbitral award by the CMA. Also, he argued that, it is not correct that the applicant will 4 suffer more loss if an order for attachment of the applicant’s bank account will not be stayed compared to the respondent for the reason that, the respondent is also suffering from great hardship in running his family which depends on him and he is jobless. He prayed for the application to be dismissed. Mr. Ndomba rejoined briefly insisting that, the applicant has a great chance of succeeding in the application which is pending before the CMA considering that the applicant was not served with the summons to attend before the CMA for arbitration. He contended further that, for the interest of justice, this court is obliged to grant the application for stay of execution pending the determination of the application which is pending before the CMA. He concluded by insisting that, if the application will not be granted, the loss to be

incurred by the applicant will be more compared to the respondent. I have examined and considered the rival submissions of the parties and their respective affidavits, I think, the issue for my determination is whether the applicant has satisfied all the conditions for the grant of the application. The application has been made under Order XXI, Rule 24 (1) of the CPC. The provision empowers the court to order for stay of execution if there is a pending proceeding in respect to the executable 5 decree. It also provides for the conditions to be complied with for the application for stay of execution to be granted. It provides that: - '24.-(1) The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution or for any other order relating to the decree or execution which might have been made by such court of first instance or appellate court if execution had been issued thereby, or if application for execution had been made thereto.' The powers of the court to order for stay of execution provided in the above quoted provision can only be exercised upon fulfillment of the grounds set

under Order XXXIX, Rule 5(3) of the CPC. Order XXXIX, Rule 5(3) provides that: “No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the High Court or the court making it is satisfied that: - (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.” After reproducing the laws governing stay of execution it is in my view that, the three mandatory conditions for any court to grant stay of 6 execution must be satisfied. Now, the question is, has the applicant satisfied the mandatory conditions set by the law? To answer this question, this court is set to go through one condition after another. With regard to the first condition that there must be a substantial loss that may result to the party applying for stay of execution, the applicant’s learned counsel has argued that, if this application will not be granted, the application which is pending before the CMA will be useless and the applicant will suffer irreparable loss. His may contention being that the bank account which is subject for execution is used by the applicant in running his daily businesses including students’ welfare as well as

meals and salaries for the applicant’s employees. That the inconvenience and loss to be suffered by the applicant herein will be more than the loss to be suffered by the respondent herein if the court will grant the prayer for stay of execution. In his part, the respondent resisted the grant for the reason that if the application is granted, he will suffer more than the applicant taking into consideration that, at the moment he is jobless and his family depends upon him. Having considered the arguments made by the parties, I am of the view given the submission of the applicant’s learned advocate, the bank account attached seems to form a fundamental part of the running of the school. Given the necessity of the bank account, I 7 find the applicant has managed to prove that there will be loss on her party. Therefore, the first condition for grant of an order for stay of execution has been established. Reverting to second condition that the application has been made without unreasonable delay, the applicant’s learned advocate has averred that, the applicant came to know that there is an order for execution of an ex parte award on 07th August, 2024 and the application was filed 15th August, 2024, which in simple calculations, it was after only 8 days. In my reading of the CPC there is no time limitation for filing application for stay of execution. Order XXXIX, Rule 5(3)(b) of

the CPC uses the phrase without unreasonable delay. The provision has not defined what is reasonable delay. However, filing the application within 8 days, that is due diligence and it is clear that the applicant was willing to prosecute this applicant. Given the fact that, the applicant filed the application for stay of execution within 8 days from the date she became aware of the execution order. In my view, I find that this application was filed without unreasonable delay for it has been filed even before execution process of the decree is put in motion by the decree holder. Thus, the second condition is met. In respect to the third condition on security being furnished by the applicant, the applicant’s affidavit is silent on this mandatory legal 8 requirement. The applicant’s learned counsel in his submission never even attempted to submit on it. He totally closed his eyes and zipped his mouth on the vital legal requirement for the granting of the application. Principally, in application for stay of execution, security is furnished so as to protect the respondent from facing difficulties or impossibility of realizing the decree. This was so accentuated in the case of Africhick Hatchers Limited vs. CRDB Bank Plc, Civil Application No. 98 of 2016 [2019] TZCA 148 (TanzLII) the Court stated the importance of security in the following terms: "Of course; most important is the fact

that the respondent should not find it difficult or impossible to realize the decree in case the intended appeal fails. This is the cornerstone of the requirement for security. In such circumstances, the court is principally obliged to figure out whether or not any one particular mode of security vouchers risks on the part of the respondent.” From the authority I have cited above, the requirement for security is inevitable in this kind of application. I am alive that the applicant has her right to pursue the application filed before the CMA. However, the court has to keep its eye open by taking measures to protect the respondent’s rights of enjoying the fruits of the arbitral award in case the applicant's application fails. The condition on security for due performance has been stressed by the Court of Appeal in various decisions. I would like to bank on the case of Mantrac Tanzania 9 Limited vs. Raymond Costa, Civil Application No. 11 of 2010 (Unreported), where the Court discussed the mode of giving security and stated as follows: “To meet this condition the law does that strictly demand that the said security must be given prior to the grant of stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, all things being equal to grant the stay order provided the Court sets a reasonable time limit within which the

applicant should give the same.” [Emphasis added] Being led by the passage quoted, it is clear that security has to be given prior to the grant of the order. In this application none has been given by the applicant. It is a settled law that, the applicant was not required to state the kind of security rather to show the willingness of furnishing the same. Whereas, the court would give orders accordingly. The applicant’s numbness on the willingness to furnish the security for due performance has resulted in the applicant’s failure to satisfy the third condition. It is a trite law that the three conditions must be fulfilled cumulatively. This was substantiated clearly in the case of Joseph Soares @ Goha vs. Hussein Omary, Civil Application No. 12 of 2012; Hai District Council and Another vs. Kilempu Kinoka Laizer and 15 Others, Civil Application No. 10/05 of 2017, Gilbert Zebedayo 10 Mrema vs. Mohamed Issa Makongoro, Civil Application No. 369/17 of 2019 (all unreported) and Ongujo Wakibara Nyamarwa vs. Beatrice Greyson Mmbaga (Civil Application 200 of 2021) [2022] TZCA 732 (TanzLII). In Ongujo Wakibara Namarwa (supra), the Court stated that: “It is trite law that, in order for the Court to grant the application for stay of execution all the three conditions must be cumulatively fulfilled.” In the present application the applicant’s affidavit is silent about furnishing security

for due performance of the arbitral award sought to be stayed. Also, the applicant’s learned counsel submission did not cover the same. Thus, the failure to state the willingness on the part of the applicant to furnish security, the conditions for granting stay of execution cannot be said to have been fulfilled cumulatively. Therefore, the issue raised, whether the applicant has satisfied all the conditions for the grant of the application, is answered in the negative. Consequently, I find that the three conditions set for the grant of the application for stay of execution are not cumulatively met. As a result, the application fails and it is hereby dismissed. Due to the nature of this application, I give no order as to costs. It is so ordered. 11 DATED and DELIVERED at SONGEA this 22nd day of November, 2024. E. L. KAWISHE

JUDGE COURT: Ruling delivered in in the presence of Mr. Gaudence Ndomba, applicant’s learned advocate and in the presence of the respondent Mr. Ally Shaban Hussein in person. E. L. KAWISHE

JUDGE 22/11/2024 12