CIVIL APPLICATION NO 308 17 OF 2024 CATS TANZANIA LIMITED VS SAVIO FERNANDES

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 308/17 OF 2024 CATS TANZANIA LIMITED ............................. ............. ............ ...APPLICANT VERSUS SAVIO FERNANDES....... ........ ................................................ RESPONDENT (Application for stay of Execution of the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam) (Maruma. 3.1) dated the 25th day of April, 2024 in Execution No. 178 of 2021 RULING 13th & 25th September, 2024 RUMANYIKA. J.A.: This is an application for stay of execution. It is taken at the instance of CATS TANZANIA LIMITED, the applicant. It is with respect to the decision of the High Court (Labour Division) in Execution No. 178 of 2021 dated 25/04/2024 from a decision by Tarimo, Deputy Registrar. The application is by way of a notice of motion which is predicated on rules 11 (3) (5) (6) (7) 48 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by Mohamed Hameer who is the Managing Director of the Applicant Company. The respondent did not file affidavit in reply. i For the reasons that will come to light shortly hereinafter, the grounds upon which the application is pegged may not necessarily be reproduced. Briefly, Savio Fernandes, the respondent herein had been employed by the applicant until February, 2010 when the former's employment was allegedly terminated. Then, the respondent instituted a labour dispute before the Commission for Mediation and Arbitration at Dar es Salaam (the CMA) challenging it for being unfair. Whatever had happened before the CMA, the dispute was determined exparte in favour of the respondent. The applicant applied to set it aside vainly. He unsuccessfully challenged the said refusal by way of revision in the High Court (Nyerere, 1). Still aggrieved, the applicant lodged appeal to this Court which was struck out for being incompetent. The record further shows that, on 13/12/2016 the Court granted the applicant a stay order in Civil Application No.108/2016. Besides, the respondent filed Execution Application No. 178 of 2021 which was granted by the High Court on 14/03/2023. Still aggrieved, the applicant filed Civil Appeal No. 619 of 2022 which is now pending in the Court, hence this application. It is the applicant's averment at paragraphs 12 and 13 of the supporting affidavit that, if execution is not stayed she will suffer irreparable loss since the respondent will not be able to refund her, should the intended appeal succeed. At the scheduled hearing of the application, the said Mr. Mohamed Hameer appeared arguing it on behalf of the applicant whereas Mr. Alex Mianga, learned counsel appeared for the respondent. Mr. Mianga had three preliminary points of objection challenging the competence of the application. Being mindful that the respondent did not file an affidavit in reply, Mr. Mianga limited his submission to points of law only, as follows; one, that, the application is time-barred and therefore liable to be struck out. Elaborating, he asserted that, the respective application for execution was filed on 04/05/2021 while the instant application was filed about three years later on 03/05/2024. This application, he added, was filed beyond the fourteen days stipulated under rule 11 (4) of the Rules; two, that the application is res judicata and the Court is fanctus officio. He contended that the matter had been competently determined by Single Justice of the Court (Makungu, J.A) who struck out a similar matter, Civil Application No. 34/18 of 2024 on 14/6/2024 for being time-barred and three, but, in the alternative, that this application has not fulfilled all the conditions required for the grant of a stay order. Elaborating, Mr. Mianga contended that, the application was not accompanied by copies of notice of appeal and notice of the intended 3 execution as required under rule 11 (7) (a) and 11 (7) (d), respectively. He also asserted that, the applicant had not promised to give security for the due performance of the decree. The learned counsel reiterated his prayer for an order to strike out the application. In reply, speaking through Mr. Hameer, the applicant blamed the respondent for having had pressed for execution of the decision while being aware of the applicant's notice of appeal filed on 07/12/2022 and the Court's stay order dated 20/12/2016. Additionally, Mr. Hmeer stressed that, in fact the application was filed within time. However, he admitted that the application is not accompanied by copy of the notice of appeal and that the omission was not intentional. Regarding the issue of undertaking to give security, the applicant contended that, this step is both prejudicial and a disguised compulsion on the applicant. Nonetheless, he promised to furnish it, as it may be ordered by the Court and stressed for the grant of a stay order. In his rejoinder, Mr. Mianga beseeched the Court to discount the applicant's purported undertaking to give security for being an afterthought, since, he did not state it in the affidavit. Regarding the contending arguments above, I am guided by the stance which has been taken by the Court repeatedly testing the provisions of rule 11 (2) - (7) (d) of the Rules. That, in order an 4 application for stay of execution to succeed, all the necessary conditions have to be fulfilled cumulatively. See- a plethora of the Court's authorities which include Joseph Soares @ Goha v. Hussein Omary, Civil Application No. 12 of 2012 (unreported). For clarity, the operative part of rule 11 of the Rules reads thus; 11(3) - "In any civ il proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from nor sh all execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution. (4) an Application for stay o f execution sh all be made within fourteen days o f service o f the notice o f execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution. (4 A ).... N/A (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that- (a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) Security has been given by the applicant for the due perform ance o f such decree or order as may uitim ateiybe binding upon him. (6) N/A (7) An appiication for stay o f execution shaii be accom panied by copies o f the follow ing:- (a) A notice o f appeal; (b) a decree or order appealed from; (c) A judgm ent or ruling appealed from; and (d) A notice o f the intended execution." With regard to the issue of time-bar, I note, from the supporting affidavit that, neither the date of filling of the present application nor the date of service of a notice of the intended execution to the applicant was stated. Just as is also the case for when the applicant became aware of the said execution process. Nevertheless, it is not disputed that the 1st application for execution was filed on 04/05/2021 and the instant application was filed on 03/05/2024. Therefore, the application is time- barred for about three years far beyond the limitation period of fourteen days. The 1st limb of preliminary objection is sustained. It is capable to dispose of the application. Without prejudice to the foregoing, the issue of the application being res judicata shall not task my mind than is necessary. It is so 6 because the record of this application is clear that, on 20/12/2016 which is about eight years ago, the full Court issued a stay order vide Civil Application No.108 of 2016 between the same parties and subject matter. Fortunately, that decision is still intact. On that account this appiication should not have been filed in the first place. Regarding the alleged missing copies of documents which ought to have been appended to the application, pursuant to rule ll(7)(a) of the Rules, the applicant cut the long story short. Her admission that she omitted to attach the respective notice of appeal significantly advanced Mr. Mianga's preliminary objection since, my perusal of the record has revealed the same. Whether or not the said omission was accidental is immaterial in the circumstances. The preliminary objection is also sustained. To make it worse, I note also that, be it expressly or impliedly, the applicant did not promise to give security. As such, the omission contravenes rule ll(5)(b) of the Rules. The applicant may wish to know that, the requirement of firm undertaking to furnish security for the due performance of the decree is not prejudicial nor is it a disguised undue influence to the applicant as alleged. Rather, it safeguards the interest of the parties. However cumbersome and longer the process may be, it is double coincident since, the Decree Holder is assured of enjoying the fruits of his decree while it gives the Judgment Debtor such comfort while exercising his right to exhaust the appellate hierarchy if he wishes so to do. In conclusion, I am not satisfied that the application has fulfilled the conditions for the grant of stay of execution of the impugned decree. It is hereby dismissed. Being a labour matter, no order is made as to costs. DATED at DAR ES SALAAM this 23rd day of September, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 25th day of September, 2024 in the presence of Mr. Mohamed Hammer, Director of Cats Tanzania Limited as Applicant and and Mr. Switbert Eligidius, learned counsel for the Respondent is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL ★ 8