helenic foundation ta st constantines international school vs jessica teffe 2023 tzca 17727 4 october 2023

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA. J.A.. MAKUNGU. J.A And MDEMU, J.A.^ CIVIL APPLICATION NO. 529/02 OF 2022 HELENIC FOUNDATION OF TANZANIA t/a ST. CONSTANTINE'S INTERNATIONAL SCHOOL........................ APPLICANT VERSUS JESSICA TEFFE....................................................................... RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Arusha) (Gwa_e_3.) dated the 8th day of November, 2021 in Labour Revision No. 113 of 2020 RULING OF THE COURT 2nd & 4th October, 2023 MDEMU, J.A.: This application for stay of execution has been preferred by way of a notice of motion under rules 11 (3), (4), (4A), (5) (a) and (b), (6), (7) (a) (b) (c) and (d) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and is supported by an affidavit sworn by one Victoria Thomas, the Director of Administration and Finance of the applicant. It is for stay of execution of the decree of the High Court of Tanzania at Arusha, in Labour Revision No. 113 of 2020. According to the supporting affidavit, the respondent herein who was employed by the applicant for a specific term contract, filed a labour dispute for unfair termination before the Commission for Mediation and Arbitration (the CMA) at Arusha. She was successful as the CMA awarded compensation of twelve (12) months' salary. The applicant was not happy thus filed an application for revision to the High Court of Tanzania, which as was to the CMA, decreed in favour of the respondent by confirming the award of twelve months remunerations. Further aggrieved, the applicant commenced appeal processes by filing a notice of appeal (annexure HFT.2) for appeal purposes to this Court. While the appeal processes were underway, the applicant was served with the notice of execution on 5th August, 2022 in application for execution No.47 of 2022 lodged by the respondent on 29th July, 2022. This prompted the applicant herein to lodge the Instant application on 12th August, 2022 on the grounds set forth in the notice of motion. In the said application for execution, the respondent intended to attach the following vehicles being the properties of the applicant in realization of the decretal amount: T 147 DZB, T 137 AQP, T 760 BCG, T 373 CKQ, T 464 CLL and T 422 AAD. 2 During the hearing of the application, the applicant had the services of Mr. Andrew Mosses Maganga, learned advocate whereas the respondent was represented by Ms. Juliana Japhet Mono, also learned advocate. The learned counsel for the respondent did not resist the application provided that the applicant be in a position to furnish security on the conditions to be determined by this Court. On his part, banking on the supporting affidavit, Mr. Maganga undertook to furnish security for the due performance of the decree as may ultimately be binding upon the applicant. In that firm undertaking made, the applicant indicated his readiness to provide security in a form of bank guarantee to the tune of TZS 40,237,580/= being the value of the decretal sum. We have considered the submissions by the learned counsel for the parties. The issue which calls for our determination is whether this application has merit. As said, the counsel for the respondent did not contest the application. On our part, we are also in all fours with both counsel that the application is merited because the applicant has complied with conditions listed under rule 11 (3), (4) and (5) (a) and (b) of the Rules by; one, filing the application within fourteen days; two, that if the application is not granted, it will be detrimental to the applicant. We are 3 saying so because the vehicles subject to attachment as per paragraph 9 of the affidavit are normally used daily for provision of transport to students and staff of St. Constantine's International School. Three, the applicant has promised to furnish security. Rule 11(4) and (5) of the Ruies in this regard provides that: (4) An application for stay o f execution shali be made within fourteen days of service of 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. (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that: - (a) substantial toss 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 of such decree or order as may ultimately be binding upon him. In the final analysis therefore, as observed above, we find the application meritorious and we accordingly proceed to grant it. We consequently order that, the decree in Labour Revision No. 113 of 2020 of the High Court of Tanzania at Arusha be stayed pendingthe 4 determination of the applicant's intended appeal lodged to this Court. We make this order under condition that, the applicant herein to deposit in Court a Bank Guarantee in the sum of TZS 40,237,580/=within thirty days of the date of delivery of this ruling. This being a labour matter, we do not make an order as to costs. DATED at ARUSHA this 4th day of October, 2023. A. G. MWARIJA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The ruling delivered this 4th day of October, 2023 in the presence of Mr. George Lubara Kivuyo, holdings brief for Mr. Andrew Maganga learned advocate for the applicant and Ms. Juliana Japhet Mono, learned advocate for the respondent is hereby certified as a true copy of the original.