CIVIL APPLICATION NO 341 18 OF 2024 CATS TANZANIA LIMITED VS SAVIO FERNANDES

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 341/18 OF 2024 CATS TANZANIA LIMITED ..................................................APPLICANT

VERSUS SAVIO FERNANDES......... ......... ........................................... RESPONDENT (Application for stay of execution of the decision of High Court of Tanzania, at Dar es Salaam) (Tarimo. DR.1 Dated the 25th day of April, 2024 in Execution No. 178 of 2021

RULING 28th May & 18th June, 2024 MAKUNGU, 3.A.: The applicant, CATS TANZANIA LIMITED, is moving the Court by notice of motion for stay of execution of a decree of the High Court of Tanzania (Labour Division) at Dar es Salaam in Execution No. 178 of 2021, pending hearing and determination of an intended appeal. The application is brought under rules 11 (3), (5), (6) and (7) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (hereinafter the Rules). The notice of motion is supported by the affidavit of the Managing Director of the applicant Mr. Mohamed Hameer. As can be gathered from the record, the respondent was employee of the applicant until 15th February, 2010 when his service was i terminated. However, the respondent was dissatisfied and he subsequently filed Labour Dispute No. CMA/DSM/ILA/761/12/924 at the Commission for Mediation and Arbitration ("the CMA") claiming unfair termination which was exparte decided and the award was delivered on 24th June, 2014. Following the exparte award the applicant herein lodged application to set aside the exparte award at the CMA. On 25th August, 2014 the CMA dismissed the application on ground that the applicant failed to adduce reasons for non- appearance in arbitral proceedings. Aggrieved, the applicant lodged Revision Application No. 34 of 2015 at the High Court Labour Division at Dar es Salaam challenging the decision of the

CMA. On revision the High Court (Nyerere, J.) dismissed the application and confirmed the CMA's award. Following that dismissal, the applicant filed Civil Appeal No. 210 of 2019 before this Court which was struck out for non appearance of the applicant who was the appellant in the appeal. In consequence, the respondent filed Execution Application No. 178 of 2021 since there was no pending appeal against Revision Application No. 34 of 2015. Insofar as this application is concerned the applicant now seeks exparte and interparte orders staying the execution of the decree/order on Execution No. 178 of 2021 pending hearing and determination of the intended appeal by the Court. In support of the application, the applicant has annexed to the supporting affidavit a number of documents including the following: One, a copy of notice of appeal dated 7th December, 2022; two, a copy of the decision of CMA of Chacha B; three, a copy of the decision of Nyerere, J; and finally, a copy of the application for execution dated 6th May, 2021. When the application was called on for hearing on 21st May, 2024, Mr. Mussa Daffa, learned advocate holding a brief of Mr. Magusu Mugoka, learned advocate appeared for the applicant. The respondent was absent because he did not receive a notice of hearing. Mr. Daffa prayed the Court to adjourn the hearing because the Managing Director of the applicant insisted

that the hearing should be conducted by his advocate Mr. Mugoka. I agreed with the prayer and I ordered the interparte hearing to be on 24th May, 2024. When the application was called on for hearing on 24th May, 2024, Mr. Mohamed Hameer, the Managing Director of the applicant appeared accompanied by Mr. Matojo Cossata, who introduced himself as the Legal Officer of the applicant's Company. On the other side Mr. Jovenalis Ngowi assisted by Mr. Sweetbart Elgidius, both learned counsel, entered appearance for the respondent. Before the commencement of hearing, Mr. Cossata was quick to intimate to the Court that their advocate Mr. Magoka had no interest to conduct the application. He thus prayed to be allowed to proceed with the hearing for the applicant. Since Mr. Elgidius had no objection to the prayer I allowed him to proceed. After he was allowed to proceed, he prayed the Court to adjourn the matter to give him time to prepare himself because the respondent has filed a notice of preliminary objection. Again, the advocate for the respondent did not appose the prayer, the matter was fixed for hearing on 28th May, 2024. On 28th May, 2024 when the application came up for hearing, Mr. Matojo Cossata appeared for the applicant whereas Mr. Sweetbert Elgidius assisted by Mr. Alex Mianga, both learned advocates entered appearance for the respondent. The application is resisted by the

respondent not only by way of an affidavit in reply, but also by a notice of preliminary objection of which was filed under rule 107 of the Rules and served on the applicant on 23rd May, 2024. So when the application came up for hearing, I had to start with the preliminary objection. The respondent in his notice of preliminary objection raised only one point as follows: "(0 That, the application is time barred for being filed contrary to mandatory provision o frule 11(4) o f the Court o fAppeal Rules Cap. 141 R,E 2019 as amended by GN No. 88 o f2024". Submitting on that point, Mr. Mianga, while referring to rule 11 (4) of the Rules, briefly argued that the application before the Court is out of time as the same was supposed to be filed within a period of fourteen (14) days from the date of receiving the notice of execution or otherwise became aware of the ongoing execution process. To demonstrate that the application was out of time, he submitted that this application was filed on 16th May, 2024 but the application for execution of decree was filed in court on 6th May, 2021. It is obvious that the application was filed almost three years from the date when the application for execution was lodged, he added. On the basis of the above argument and in view of the decision in Mbarala A. Maharagande and 4 Others v. Mahiku A. Maharagande, Civil Application No. 496/01 of 2021

(unreported) that, this would be in violation of rule 11 (4) of the Rules, He prayed for this application to be struck out. In response to the foregoing submissions, Mr. Cossata admitted that the present application was filed beyond the specified time. However, he argued that the delay was due to the unique situation regarding this application. He explained the unique situation was that; One; when the respondent filed the application for execution there was a stay order of this Court which was granted in 2016. Two, when the respondent filed the application for execution there was a notice of appeal and the appeal before this Court. From those circumstances, he invited me to invoke rule 4 (1) of the Rules and proceed to determine the application on merit. He bolstered his argument by our decision in UAP Insurance (T) Limited v. Yuda Thomas Shayo & 5 Others, Civil Application N. 611/18 of 2022 (unreported). The Court wanted to ascertain from the applicant, whether or not in the notice of motion or affidavit there is a paragraph stating a firm undertaking and confirmation at the hearing that the applicant shall furnish security for the due performance of the decree. That is the legal requirement of rule 11 (5) of the Rules, Mr. Cossata conceded with the remarkable forthrightness that the notice of motion and the accompanying affidavit do not have that paragraph of firm

undertaking that the applicant shall furnish security for the due performance of the decree. In spite of this, he however invited me to depart from the Rules and proceed to determine the application on merit. He cited to me the case of Rutagatina C. L v. The Advocates Committee and Another, Civil Application No. 98 of 2010 (unreported). 6 In rejoinder, Mr. Mianga submitted that since the applicant conceded that the present application was filed out of time, therefore it should be struck out with costs. I have carefully examined the record before me and taken account of the arguments of the parties. It is common cause that the notice of execution was filed on 6th May, 2021 and that in terms of rule 11 (4) of the Rules, the present matter ought to have been filed within fourteen (14) days thereafter. It is apposite to extract rule 11 (4) hereunder: "(4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f execution on the appellant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution" Reckoning the fourteen days limitation time from the date of service of the notice of execution, the said period expired on 20th May, 2021 but this application was lodged on 16th May, 2024, which was almost three years after the service of the notice of execution. The time

limitations and their computations for the purpose of the proceedings before this Court are stipulated and governed by the Rules. With respect, I decline the invitation extended to me by Mr. Cossata for reason that he did not tell me the unique situation which he thought the interests of justice in this case require me to depart from the said Rules. In this regard, Mr. Cossata's request was not substantiated or backed up by good reasons. All in all, I see no justification for making a departure from the Rules in this matter. The Court cannot ignore the trashing of the mandatory time limitation prescribed by rule 11 (4) of the Rules. The applicant ought to have preceded his present pursuit by applying for extension of time under rule 10 of the Rules. On this basis, I am disinclined to hold that the present application has prim e facie met all the requirements of the law particularly that stipulated by rule 11 (4) and (5) of the Rules. As told, I sustain the preliminary objection raised and find the application time barred. Accordingly, the matter is struck out, but it being from labour proceedings, I make no order as to costs. DATED at DAR ES SALAAM this 14th day of June, 2024. 0.

0. MAKUNGU

JUSTICE OF APPEAL The Ruling delivered this 18th day of June, 2024 in the absence of the Appellant and in the presence of Mr. Sweetbert Eligidius, learned counsel for the Respondent both via video conference, is hereby certified a fru p r n n v n f th p nrininal