CIVIL APPLICATION NO 641 8 OF 2024 LAKE OIL LIMITED VS KHERDIN MOHAMED SHAFIQ

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 641/8 OF 2024 LAKE OIL LIM ITED........................................... ................... APPLICANT VERSUS KHERDIN MOHAMED SHAFIQ......................................... RESPONDENT (Application for Stay of execution of the Decree of the High Court of Tanzania at Mwanza) (Msuwakolo - Arbitrator^ Dated the 28th day of October, 2022 in CMA/MZA/NYAM/144/2021/79 OF 2021 RULING 10th & 13th September, 2024 MAKUNGU, J.A.: The applicant, LAKE OIL 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 Mwanza in Labour Execution No. 7 of 2023, pending hearing and determination of an intended appeal. The application is brought under rules 11(3),(4), (5),(6) and 4 (1),(2) (a) (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of motion is supported by the affidavit of the applicant's Principal Officer one Macrina Chale. As can be gathered from the record, the respondent was employee of the applicant until June, 2021 when he resigned from his employment due to intolerable environment caused by the applicant of which the applicant granted his resignation. However the respondent was dissatisfied and he subsequently filed Labour Dispute No. CMA/MZA/NYAM/144/2021/79/2021 at the Commission for Mediation and Arbitration ("the CMA") claiming unfair resignation which was decided on favour of the respondent and the award was delivered on 28th October, 2022 . The application for execution filed by the respondent is a result of the award of the CMA for Tshs. 83,106,666/= which was stayed by the High Court of Tanzania at Mwanza via Misc. Labour Application No. 4 of 2023 and Misc. Labour Application No. 26179 of 2023, the latter pending the determination of Misc. Labour Application No. 26104 for extension of time. The ruling was delivered on 17th May, 2024 in the High Court of Tanzania at Mwanza, to revise the award of the CMA was dismissed by the High Court on 17th May, 2024 leaving intact the said award and order to be executed by the respondent. In consequence, the High Court of Tanzania (Labour Division) at Mwanza has already required NCBA Bank Tanzania Limited to deposit the decretal sum of Tshs. 83,106,666 in the bank guarantee number MD 24106056161 that the applicant deposited with the said court, in a bid to execute the award in favour of the respondent. Insofar as this application is concerned the applicant now seeks exparte and interparte orders staying the execution of the decree/order on Labour Execution No. 7 of 2023 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 27th May, 2024; two, a copy of the decision of CMA of Musowakollo, S; three, a copy of the decision of Matuma, J; and finally, a copy of the letter from the Deputy Registrar of the High Court of Tanzania at Mwanza to the Manager, NCBA Mwanza relating to Execution Case No. 7 of 2023 dated 29th July, 2024. When the application came up for hearing, Mr. Philip Lincoln Irungu, learned counsel appeared for the applicant whereas Mr. Akram Adam, learned counsel entered appearance for the respondent via video link from Mwanza. The application is resisted by the respondent not only by way of affidavit in reply, but also by a notice of preliminary objection which was filed under rule 107 (1) of the Rules on 6th September, 2024 and served on the applicant accordingly, The respondent in his notice of preliminary objection raised two legal points as follows: " (i) That, the application is time barred pursuant to rule 11(4) o f the Tanzania Court o f Appeal Rules, G.N. No. 3681 o f 2009 as amended by G.N. No. 362 o f 2017 and G.N. No. 188 o f2024. (ii) That, the application for stay is incompetent for violating rule 11 (7) o f the Tanzania Court o f appeal Rules, G.N. No. 368 o f2009 as amended by G.N. No. 362 o f 2017 and G.N. 188 02024 / ' Submitting on the first point, Mr. Adam 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 filed out of time, he submitted that this application was filed on 26th August 2024 when the time started to run on 17th May, 2024 after the ruling in the application for extension of time which was dismissed by Matuma, J. The applicant was required to act from that date, he added. It is obvious that the application was filed almost 4 months from the date of that Ruling. On the basis of the above argument and in view of the decision in Nyarugusu Mine Company Limited v. The Labour Commissioner & Another (Civil Application No. 14/08 of 2021) [2023] TZCA 17635 (20 September, 2023); that, this would be in violation of rule 11(4) of the Rules. On the second point of objection, the learned counsel submitted that the application before the Court is incompetent as the applicant failed to attach a notice of intended execution as required under rule 11(7) (d) of the Rules. He argued that, the provision makes it mandatory for the applicant of the order for stay of execution to attach with the application, a notice of execution, from that failure of the applicant to comply with the provision of rule 11 (4) and (7) (d) of the Rules, he prayed for this application to be struck out. In response to the foregoing submissions, Mr. Irungu opposed the two points of objection. On the first point, briefly, replied that the application was filed within time as required by the Rules. He argued that the date of ruling (17th May, 2024) is not the date for execution. He submitted that immediately after the delivery of the said ruling, the applicant filed the notice of appeal and requested for certified copies of the ruling, drawn order and proceeding to able to lodge the record of appeal. He submitted further that after that ruling, the award was open for execution and the applicant awaited to be served with or notified of the execution process to enable it initiate appropriate stay of execution proceedings in this Court. Relying on e-mail dated 22nd August, 2024, the learned counsel submitted that, the applicant was aware of the execution process when he was notified by NCBA Bank Tanzania Limited on that date. He argued that the applicant was aware of the execution process on 22nd August, 2024 and the application was filed on 20th August, 2024, thus the application is within time and therefore the first point has no merit. On the second point, the learned counsel, while referring to paragraph 16 o the affidavit where the applicant annexed "BEA 10", briefly replied that the said court's letter Reference No. Execution No. 7 of 2023 dated 29th July, 2024 which was served on the Bank on 16th August, 2024 and the Bank notified the applicant on 22nd August, 2024 was the notice of the intended execution. He invited me to find that the applicant complied with the requirement of rule 11 (7) (d) of the Rules. He prayed that his point has no merit and the preliminary objection raised to be dismissed. In rejoinder, Mr. Adam insisted that the process of execution was already done by the court itself after the ruling on 17th May, 2024. The execution was already granted pending the determination of the application for extension of time. The application was dismissed for lack 6 of merit. On second point; he submitted that the court's letter to the Bank cannot be taken as a notice of intended execution in terms of rule 11(7) (d) of the Rules. Therefore, the application should be struck out. With the above arguments in mind, I will start with the law applicable in terms of requirements necessary for applications like this one to be granted. I will start with the law in the address my mind on the law in the context of the requirements of rule 11(4) and (7) (d) of the Rules as raised in the notice of preliminary objection. Legally, for this Court to grant the order sought, as highlighted above, among other requirements, the applicant needs to satisfy the following two legal requirements, One, the applicant must lodge the application within fourteen days from the date that he was served with the notice of execution or from when he became aware of the execution proceedings. This is in terms of rule 11(4) of the Rules. Two, the applicant must also attach to the application the notice of the intended execution in terms of rule 11(7) (d) of the Rules. The above two conditions and several others which are not relevant to this application, must cumulatively met as per this Court's decisions in Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010 and Mohamed Masoud Abdalla and Sixteen Others v. Tanzania Road Haulage (1980) Limited, Civil Application No. 58/17 of 2016 (both unreported) among others. Where the conditions the conditions are not met cumulatively, the application is incompetent and liable to fail, see Mabrock Mengele v. Vernon David Law and Another, Civil Application No. 87 of 2024 (unreported) and Nyarugusu Mine Company Limited (supra). I will now determine whether in this application the applicant met the above two conditions, and I shall start to discuss if the application was filed without undue delay in compliance with rule 11(4) of the Rules and then if it was attached with a notice of execution as required by rule 11 (7) (d) of the Rules. Rule 11(4) stipulates as follows: "(4) An application for stay o f execution shali be made within fourteen days o f service o f the notice o f execution on the appeiiant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution." Whereas rule 11(7) (d) provides that: "An application for stay o f execution shall be accompanied by copies o f the following- (a) to (c) N/A (d) A notice o f the intended execution." The applicant's counsel argued that the applicant became aware of execution on 22nd August, 2024 when he was notified by the Bank as indicated in paragraph 16 of the affidavit. In my view, this assertion is not 8 true. As rightly submitted by the respondent's counsel that the applicant knew the existence of Labour Execution No. 7 of 2023 which was stayed by the High Court on 15th May, 2024 pending hearing and determination of the application for extension of time filed by the applicant. The said application was determined on 17th May, 2024. Even the court's letter referred to by the applicant's counsel clearly stated that the pending application has ended on 17th May, 2024 for being dismissed for want of merit and there is no pending matter between the parties. This application having being filed on 26th August, 2024 the same was filed four months from the time he became aware of the execution proceedings he is seeking to stay. This would be in violation of rule 11(4) of the Rules. The application in the circumstance is time barred. The other aspect I focused on related to compliance with rule 11(7) (d) of the Rules, that provision makes it mandatory for the applicant of the order for stay of execution to attach with the application, a notice of execution. In this application, I thoroughly reviewed the documents but I have not been able to locate such notice. The Court's letter 'BEA 10' referred to by the applicant's counsel does not amount to a notice of execution in terms of rule 11(7) (d) of the Rules. That is in contravention to rule 11(7) (d) of the Rules. For the above reasons I sustain the preliminary objection raised and find the applicant has failed to cumulatively fulfil the conditions stated under rule 11(4) and (7) (d) of the Rules. Accordingly, the application is struck out. Since the application arises from labour proceedings, I make no order as to costs. DATED at DAR ES SALAAM this 13th day of September, 2024. O.O. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2024 in the presence of Mr. Philip Lincold Irungu, learned counsel for the Applicant and Mr. Akram Adam, learned counsel for the Respondent via Teleconferencing is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 10