CIVIL APPLICATION NO 772 18 OF 2024 ALLIANCE INSURANCE CORPORATION LIMITED VS GEORGE MKANGALA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 772/18 OF 2024 ALLIANCE INSURANCE CORPORATION LIMITED ................. . APPLICANT VERSUS GEORGE MKANGALA................ ......................................... RESPONDENT (Application for stay of Execution of the Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) (Opiyo, 3.) dated the 16th day of May, 2024 in Consolidated Revision Application Nos. 264 & 266 of 2023 RULING 30th September & 2nd October, 2024 RUMANYIKA. 3.A.: Before the High Court, Labour Division (Opiyo, 1), on 16/05/2024, Alliance Insurance Corporation Limited (the applicant) lost a battle in consolidated Revision Application Nos, 264 and 266 of 2023. In those applications, the applicant had successfully challenged decision of the Commission for Mediation and Arbitration (the CMA). Not satisfied, she lodged a notice of appeal on 10/06/2024 challenging the resultant judgment and decree. She also took some other essential steps. The said appeal process apart, it is alleged that, the respondent filed Application No. 21890 of 2024 executing the decree, which prompted the filling of the instant application. Briefly, the background to the application goes thus, George Mkangala (the respondent) had been employed by the applicant. He served in capacity of a Deputy Manager, Legal Department from 2016 until on 24/09/2020 when the employment was allegedly terminated by way of retrenchment. He successfully referred the dispute to the CMA challenging it for being unfair termination. He was awarded TZS. 15,600,000/= being twelve months' salary compensation. There followed the said two consolidated revision applications filed by the parties since, each was aggrieved by the decision. At the end of it all, the High Court upheld the CMA'S decision. It found the termination to be unfair. However, it doubled the compensatory award. As hinted above, despite of the said appeal process, the respondent is busy seeking to execute the decree. Messrs Evodius Rutabingwa and Mwang'enza Mapembe, learned counsel appeared for the applicant and respondent, respectively, at the scheduled hearing of the application. It is worth noting that, the application is by Notice of Motion which is predicated under rules 11(3) (4) (5) (a) ~ (c) (6) (7) (b) - (d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). It is supported by an affidavit sworn by Janki Sinha who is the applicant's Principal Officer. The respondent opposed the application although he did not file a respective affidavit in reply. Mr. Rutabingwa began by adopting the supporting affidavit forming part of his submission. To show that the application was consonant to the enabling provisions of the rules cited, Mr. Rutabingwa contended; one, that, the corresponding notice of appeal was filed within time, two, that, upon being served with notice of the intended execution on 18/09/2024 this application was filed within fourteen days, that is on 25/09/2024 and three, that, attachment of the applicant's Business Bank Account Nos. 0300174027 and 0300174019 being run with Exim Bank Limited will cause her day to day business to be sterile, thereby causing irreparable loss. The more so, Mr. Rutabingwa further asserted, if the intended appeal succeeds while the respondent has been paid the decreed amount, the latter would not be traced to refund the money. Additionally, he contended that, the applicant is ready to furnish security and that copies of the necessary documents had been appended to the application, namely; Notice of Appeal, Judgment and decree and notice of the intended execution (Annexures "C", "A" and "B"), respectively. Stressing on the requirement of fulfilling the conditions for the grant of a stay order, Mr. Rutabingwa cited our decision in Nacky Easther Nyange v. Mariam Marijani Wilmore & Another, Civil Application No. 426/01 of 2009 (unreported). He reiterated a prayer that the application be granted pending determination of the intended appeal. In reply, while acknowledging that the respondent did not file affidavit in reply thus no right of audience on factual issues, Mr. Mapembe contended as follows; one; that the applicant may have met the requisite conditions safe for the missing an equally crucial copy of the notice of appeal, in terms of rule 11(3) and (7) (a) of the Rules. And that the purported notices of appeal under paragraphs 5 and 7 (annexure "C") to the affidavit only concerned with the two distinct Revision Application Nos. 264 and 266 of 2023 and not the respective single consolidated judgment and decree. That no notice of appeal was filed at all and therefore, the Court lacks jurisdictions to entertain the present application since, the omission contravened rule 11(7) (a) of the Rules. On those basis, Mr. Mapembe urged me to strike out the application for being incompetent. To bolster his proposition, he cited the Court's decision in Jane Machness Macharia v. Lucy Macharia Ess (Civil Application 132 of 2009) [2010] TZCA 66 (10 November 2010; TanzLII). In rejoinder, Mr. Rutabingwa contended that, it is common ground that, the instant application seeks to stay execution of the consolidated decree arising from the said two consolidated revision applications. He thus, proposed that, the purported notices of appeal appended to the application cannot invalidate the intended appeal nor do they infer existence of two distinct impugned decrees. Additionally, Mr. Rutabingwa asserted that, Macharia case (supra) and the application at hand are distinguishable since, in the former case there was no notice of appeal filed whereas in the present situation the notice of appeal was timeously filed. And that Mr. Mapembe's concern has been raised prematurely and out of context. He reiterated that the application be granted pending determination of the intended appeal. I have considered the submissions by both learned counsel and the record of the application. For the purposes of this application, I note that, the essence of filing a notice of appeal and serving a copy on the Decree Holder cannot be overstated. On that one, the most operative part of 11(3) of the Rules is self-explanatory. It reads thus; "In any civil proceedings, where a notice o f appeal has been lodged... An appeal shall not operate as a stay o f execution o f the decree or order appealed from ... But the Court, may upon good cause shown, order stay of execution o f such decree or order", I agree with Mr. Mapembe's contention, just as I shall follow the Court's stance which we restated in Macharia case (supra) that, for an application for stay of execution, a notice of appeal accompanying it is paramount. It cannot be overstated than is necessary since it has a jurisdictional effect. Also see- Engen Petroleum v. Commissioner General Tanzania Revenue Authority, Civil Application No. 137 of 2004 and Saidi Abdallah Alawi v. Zulekha Suleman Alawi & Another, Civil Reference No. 29 of 1997 (both unreported). The only issue for my determination is whether there was no notice of appeal filed and its copy appended to the instant application. At least it is not Mr. Mapembe's contention that Annexure "C" to the application is no notice of appeal essentially. Rather, he only sees it to be an invalid notice(s) contrary to rule 11(7) (a) of the Rules. In that they are two distinct notices which may not necessarily meant for the said impugned consolidated judgment and decree. I note that, the purpose of attaching copy of a notice of appeal to an application of this nature poses double coincidence of wants; one, it informs the Court that if no order of stay is made, execution of the impugned decree would pre-empt an intended appeal and two, that the Decree Holder, the respondent herein is made aware of the applicant's grievances on the decree and intention to appeal thus, the likelihood for the respective decision to be overturned. As such, Mr. Mapembe cannot say that, the application did not meet the test much as it is also not his contention that copies of the said notices of appeal and affidavit were not served on the respondent. For more clarity, paragraph 6 of the supporting affidavit reads as follows: "That the applicant is aggrieved with the Judgment of the High Court (Labour Division) and has filed a notice o f appeal... and has already applied for copies o f proceedings, Judgment and decree for purposes of appeal to this Court. Copies o f the said Notices of Appeal and letters requesting for documents for appeal purposes are collectively attached hereto and marked as annexures "C" " From the excerpt above, therefore, speaking through Mr. Mapembe, the respondent had been aware of the applicant's grievance and intention to appeal the decision since then. Whether, the notice of appeal appended to the application is invalid or not is immaterial in the circumstances. The alleged invalidity may have something to do with competency of the intended appeal which is respectfully premature at this stage, as rightly contended by Mr. Rutabingwa. In this regard, what counts most is what is reasonably in the parties' minds. Put in other words, the application has fulfilled all the conditions for the grant of a stay order. In conclusion, the application is hereby granted. The execution of the decree of the High Court of Tanzania dated 16/05/2024 in Consolidated Labour Revision Application Nos. 264 and 266 of 2023 is hereby stayed. However, the stay order is upon a condition that the applicant shall present a bank's guarantee for TZS. 31,200,000 in favor of the respondent within forty-five days from the date hereof. DATED at DAR ES SALAAM this 2nd day of October, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 2nd day of October, 2024 in the presence of Mr. Peter Msimwa, learned counsel for the Applicant, and also holding brief of Mr. Mwangeza Mapembe, learned counsel for the Respondent; is hereby certified as a true copy of the original.