CIVIL APPLICATION NO 757 18 OF 2022 EXIM BANK TANZANIA LIMITED VS DAVID MUMBII

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 757/18 OF 2022 EXIM BANK (TANZANIA) LIM ITED............................................. APPLICANT VERSUS DAVID MUMBII........................................................................ RESPONDENT (Application for stay of Execution of the Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) fRwizile. J.^ dated the 1st day of July, 2022 in Revision No. 218 of 2021 RULING 8th July & 6th August, 2024 RUMANYIKA. J.A.: This is an application for stay of execution of the decision of the High Court of Tanzania at Dar es Salaam (Rwizile,J.) in Civil Revision No. 218/2021. It is by way of notice of motion which is predicated on rules 11(3), 11(4), ll(5)(a) (b) & (c), 11(6) and ll(7)(a)-(d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules")- The application is supported by an affidavit sworn by Edmund Mwasaga who is the Legal Services Manager of the applicant bank. The respondent opposed by filing an affidavit in reply sworn by David Mumbii. It is the applicant's contention that having been aggrieved by the decision of the High Court, he lodged a notice of appeal. And that the said essential step taken apart, the respondent had filed an application for execution of the decision being appealed from, It is asserted thus, that, if an order for stay of execution sough is not granted, the applicant would suffer a substantial loss. The factual background to this application albeit briefly goes thus: The respondent formerly worked with the applicant company as a bank teller until on 09/01/2023 when his contract of employment was terminated. Not satisfied by the termination, the applicant instituted a dispute before the Commission for Mediation and Arbitration ("the CMA") challenging it for being unfair vide Labour Dispute No. CMA/DSM/ILA/R.63/13/139. He prayed for, among other orders, reinstatement or compensation. The applicant denied the respondent's claims entirely. Upon hearing the parties, the CMA decided the dispute in favour of the respondent, that he was unfairly terminated. Therefore, the respondent was ordered to be reinstated without losing the benefits. Dissatisfied with the decision above, the applicant filed Labour Revision No. 445 of 2016 in the High Court which quashed it and set aside the resultant orders. The respondent re-filed the labour dispute vide No. CMA/DSM/ILA/R. 727/18. The CMA decided it exparte in favour of the present respondent. 2 Aggrieved by that decision, the applicant preferred an application for revision before the High Court vide Revision No. 218 of 2021 (Rwizile, J.), which was dismissed on 1st July, 2022 for being time barred. On 11th July, 2022, the applicant took some essential steps towards appealing. She applied for copy of respective proceedings and filed a notice of appeal. Further, it is averred that, the said steps apart, the respondent has been busy with the execution process, hence the present application. At the hearing of the application, Ms. Hamisa Nkya, learned counsel represented the applicant while the respondent had the services of Mr. Michael Nyambo, also learned counsel. At the very outset, Mr. Nyambo readily conceded to the application provided that, if the Court is satisfied that the applicant has fulfilled all the conditions required. In reply, Ms. Nkya, who welcomed Mr. Nyambo's conditional concession as she began by adopting the affidavit in support of the application. She asserted contended that, the applicant has satisfied all the conditions required, as follows: -One, that, the applicant had had filed a notice timely, on 11/07/2022, two, that, a notice of the intended 3 execution was served on her on 08/12/2022 being required to show cause why she should not comply with the impugned court order, three, that, the applicant stands to suffer a substantial loss should the intended execution not be stayed and four, that, the applicant is ready to give security in form of a bank's guarantee, as may be directed by the Court. Nonetheless, she contended, that while the appeal process is under way, on 8th December, 2022 the applicant was served with the notice to show cause, together with the application. And that, on 13th December, 2022 the applicant was issued with a warrant of attachment which prompted her to file the present application. It is the applicant's further contention that, if the execution is now allowed, the applicant would suffer irreparable loss, as the respondent is not financially capable to refund her, should the intended appeal succeed. Ms. Nkya also contended that the applicant is willing and ready to give a security for due performance of the impugned decree as may ultimately be binding on the parties. In reply, Mr. Nyambo contended that, the applicant has nothing to lose, unlike the respondent who has been fighting for his rights since in 2012, when his employment was unfairly terminated. 4 After I have heard the rival arguments of the learned counsel, the issue that arises for my consideration is whether the applicant has met the threshold for the granting of an order of stay of execution. The break through provision for kind of application is rule 11(3) of the Rules. It reads as follows: "In any civil proceedings, where a notice o f appeai 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 shall 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 of execution o f such decree or order". Then, sub rule (4) of rule 11 of the Rules reads; "An application for stay of execution shall be made within fourteen days of service of the notice of 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" (Emphasis is added) Another requisite condition is stipulated under rule 11(5) of the Rules. It provides as under: "No order for stay o f execution shall be made under this rule unless the Court is satisfied that- 5 (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 performance o f such decree or order as may ultimately be binding upon him " The provisions of rule 11(6) is not applicable Finally, is for copies of the documents which need to be attached to the application under sub rule (7) of rule 11 of the Rules. It reads to the following effect: "An application for stay o f execution shall be accompanied by copies o f the foiiowing- (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution" Having revisited the above provisions of the Rules, therefore, I would reiterate the legal principle that, for an application of stay of execution to be successful, all conditions stated above must be fulfilled cumulatively. See our decision in Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No 247 of 2016 (unreported) where the Court held that; - "... for an application for stay o f execution to be granted under the Rules, the above conditions had to be cumulatively complied with, meaning that where 6 one o f them could have not been satisfied, the Court would decline to grant the order for stay o f execution. The duty o f the applicant to satisfy ail the conditions cumulatively has been constantly reiterated by this Court in its several decisions. See for instance the cases o f Joseph Anthony Spares @ Goha v. Hussein Omary, Civil Application No. 6 of 2012 and Laurent Kavishe v. Eneiy Hezron, Civil Application No. 5 of 2012 (both unreported)." I note, in the instant application that, the applicant was served with a notice of the intended execution on 08th December, 2022 and she lodged the application on 19th December, 2022 which is about 11 days later. As such, the application was filed within the limit of fourteen days stipulated under rule 11(4) of the rules. Regarding the requirement to plead possible substantial loss which one stands to suffer, the applicant had averred it at paragraph 10 of the affidavit in support of the notice of motion clearly. I take note that it did not bother the respondent to challenge it. About the requirement of rule 11 (5) (b), on giving security, I take note of the applicant's averment at paragraph 11 of the affidavit undertaking to give it for due performance of the decree appealed from. 7 As regards rule 11 (7) of the Rules which requires for copies of the corresponding judgment, drawn order, notice of appeal, and the application for execution to be appended to the application, I am satisfied that this condition also has been complied with. All the above done, in terms of the rule of cumulative effect of it is that, this application is merited. Consequently, I order stay of execution application. The application is granted upon the condition that the applicant shall present a bank's guarantee which is equivalent of TZS 75,600,000.00 within thirty days from the date of this ruling. I make no order for the costs, as the application arises from a labour dispute where ordinarily we do not award costs. DATED at DAR ES SALAAM this 31st July, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 6th day of August, 2024 in the presence of Ms. Hamisa Nkya, learned counsel for the Applicant and Mr. Michael Nyambo, learned counsel for the Respondent; is hereby certified as a true copy of the original.