CIVIL APPLICATION NO 471 08 OF 2024 BHARYA ENGINEERING AND CONTRACTING CO LIMITED VS LABOUR COMMISSIONER ANOTHER

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 471/08 OF 2024 BHARYA ENGINEERING AND CONTRACTING CO. LIMITED...... APPLICANT

VERSUS LABOUR COMMISSIONER.................................. ........ 1st RESPONDENT LEGIT AUCTION MART....................................... ....... 2nd RESPONDENT (Application for Stay of Execution of the Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) ( Maahimbi, 3.^ dated the 27th day of May, 2022 in Labour Appeal No. 01 of 2022

RULING 18thJuly & 7th August, 2024 RUMANYIKA. J.A.: By notice of motion, Bharya Engineering and Contracting Co. Ltd, (the applicant herein) seeks the Court's order to stay execution of the decree of the High Court of Tanzania, Labour Division at Dar es Salaam (Maghimbi, J.) dated 27/05/2022, in Labour Appeal No. 01 of 2022. The application is predicated on rules 4, 11(3)(4) (4A) 5 (a)(b), (6) (7)(a) - (d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). It is supported by an affidavit sworn by Manraj Singh Bharya who is the Managing Director of the applicant company. The Labour Commissioner and Legit Auction Mart ("the respondents herein) preferred not to file an affidavit in reply, although they opposed the application. i According to the record and the supporting affidavit, all began with one of the applicant's employees, a data analyst, being terminated for unanimously absconding from work. And that while facing that predicament, the Local Labour Officer served the applicant with such a compliance order being requested to pay the employee TZS 24,296,000.00 as salary arrears. The applicant's vainly requested for a discussion with a view to the employee establishing the validity of his claims as the employee withheld the applicant's work equipment. That the foregoing apart, the applicant was served with an application for execution which prompted her to

apply for extension of time/ though belatedly to challenge the said compliance order. However, her move was simply kept away. Being satisfied, the applicant appealed to the High Court vainly. Still aggrieved, she lodged a notice of appeal seeking the Court to reverse the said decision. However, despite that appeal process, the applicant was served with a notice of execution on 27/6/2024 and on 04/07/2024 the 2nd respondent was appointed to carry out valuation of the applicant's motor vehicle with Registration No. T 222 DHL Make Volkswagen Amorok Pickup. This prompted the filing of present application. It is noteworthy that, by an exparte order dated 11/07/2024, I stayed the execution, as a Single Justice of the Court, pursuant to rule 11(6) of the Rules. 2 At the hearing of the application, Messrs. Goodlove Godwin Sanga and Ayoub Sanga, learned counsel and State Attorney, appeared for the applicant and respondent, respectively. From the outset, the learned State Attorney readily supported the application, provided that, the applicant gives security for due performance of the decree in such a form and manner which the Court would appropriately order. He proposed it be of bank's guarantee, to be deposited within thirty days of the ruling hereof. In response, the learned counsel for the applicant welcomed Mr. Sanga's concession. As regards the requirement of security, he referred

to paragraph 9 of the supporting affidavit reiterating that the applicant is willing and ready to give security of T7S 24,296,000.00 satisfying the decree under rule 11(5) of the Rules. He agreed with the learned State Attorney's proposal in all aspects. Having heard the learned Attorneys' submissions and given their due consideration, on 26/07/2024 I granted the application ordering stay of execution of the decree, as requested. However, I reserved the reasons therefor, which I am now set to give. The central issue for my consideration is whether the applicant has satisfied the conditions stipulated under rules 11(3)(4) (4A) (5) (a) (b) (6) (7) (a) - (d) and 48(1) of the Rules, for the granting of an order of stay of execution. 3 All things being equal, it is trite that, for an order of stay of execution to be granted, such requisite conditions have to be fulfilled cumulatively. We have stressed this stance on a number of occasions, including in National Housing Corporation v. AC Gomes (1997) Ltd, Civil Application No. 133 of 2009 and Hai District Council and Another v. Kilemp Kinoka Laizer and 15 Others, Civil Application No. 10/05 of 2017 (both unreported). With regard to the limitation period for the filling of application, which is fourteen days, it is not disputed, in the instant application that, it was timely lodged on 08/07/2024, as the application was served with

the notice of the intended execution on 27/06/2024, as averred at paragraphs 7 and 10 of the supporting affidavit Further, I note that, copies of the notice of appeal, judgment and decree appealed from and notice of the intended execution have been attached to the application. For the condition to give security for due performance of the decree, which I consider to be solely contended in this application, the applicant had made it clearly at paragraph 9 of the supporting affidavit, as follows: " ...the applicant is also ready for any directive o f the Court in respect o f the security for due performance o f the decree in case the appeal fair. Put in other words, the conditions required for granting of a stay order have all been complied with. All said and done, it is for those reasons that I made on order staying the execution of the impugned decree on 26/07/2024. Consequently, execution of the CMA award which was upheld by the Court on 27/05/2022 is hereby stayed pending determination of appeal. This order is conditional upon the applicant depositing a Bank's Guarantee for TZS 24,296,000.00, within thirty days from the date hereof. Because the application emanates from a labour dispute, where ordinarily we do not award costs, each party shall bear their costs. DATED at DAR ES SALAAM this 31st day of July, 2024. S. M. RUMANYIKA

JUSTICE OF APPEAL The Ruling delivered this 7th day of August, 2024 in the presence of Godlove Godwin Sanga, learned counsel for the Applicant, Mr. Salehe Mohamed Manoro, learned State Attorney for the 1st Respondent but in the absence of the 2nd Respondent, is hereby certified as a true copy of J- J- KAMALA

DEPUTY REGISTRAR

COURT OF APPEAL