CIVIL APPLICATION NO 420 5 OF 2024 NOKIA SOLUTIONS AND NETWORK TANZANIA LIMITED VS HONEST MANGALE

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 420/5 OF 2024 NOKIA SOLUTIONS AND NETWORK TANZANIA LIMITED .......APPLICANT

VERSUS HONEST MANGALE....... ..............................................................RESPONDENT (Application for stay of execution of the Decree of the High Court of Tanzania at Moshi) f Mwenempazi. 3.^ dated the 21st day of April, 2022 in Labour Application No. 43 of 2020

RULING 8th July & 5th August, 2024 RUMANYIKA, J.A.: This is an application for stay of execution of a decree of the High Court at Moshi (Mwenempazi, J.) in Labour Application No. 43 of 2020. It is by way of notice, at the instance of Nokia Solutions & Network Tanzania Ltd ("the applicant"). It has been predicated on rules 11(3) (4), (5)(a) - (c) (7)(a) - (d) and 48(1) and (49)(1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). The application is supported by an affidavit sworn by Gordon Rwenyagira who is director of the i applicant company. The respondent filed an affidavit in reply sworn by Jane James, advocate to oppose the application. The matter has such an interesting historical background which may not necessary be narrated in the circumstances. Remotely, Mr. Alex Mianga and Ms. Jane James learned counsel, appeared through video conference representing the applicant and respondent from Arusha and Moshi, respectively. It is worth noting that on 28/06/2024 I made exparte order, in terms of rule 11 (6) of the Rules staying execution of the decree, pending hearing of the application inter partes. The said notice of motion comprises three grounds: one, that, the impugned decree would be executed soon and at any time, as the corresponding application had been concluded and the ruling reserved, two, that, despite a notice of appeal being filed to challenge

the impugned decision, the respondent's efforts to execute the decision appealed from are at such advanced stage and three, that, the applicant stands to suffer substantial loss, should the Court not make an order of stay being sought. From the very outset, Ms. James expressly supported the application, provided that, the applicant gives security, pursuant to rule 2 11(5) (b) of the Rules, in such a form and manner, as the Court may deem fit and appropriate to order. Mr. Mianga began by adopting the notice of motion and supporting affidavit. However, while welcoming Ms. James' concession, he was optimistic that the proposed form of security is unfounded because, he contended, the applicant is a reputable company with such strong financial muscles, if anything, to satisfy the decree. On merit of the application, he contended that, as the execution of the impugned decree is just at the next door despite the applicant's intended appeal, the Court be pleased to order its stay. The learned counsel added that, the applicant has met the threshold under rule 11(4)(7)(5) of the Rules, as follows; One, that, the application was filed within the prescribed period of fourteen days of the service on her, of the notice of the intended execution on 02/02/2023 upon having the time extended , two, that, all the documents necessary were attached to the application, three, that, the applicant

would suffer substantial loss, should the intended execution not be stayed, and four, that, the applicant undertakes to furnish security for the due performance of the impugned decree, should her appeal fail. 3 On the foregoing reasons therefore, Mr. Mianga beseeched me to find the application merited and order the stay of execution. I have considered the notice of motion, the supporting affidavit, the respondent's affidavit in reply and the learned counsel's rival submissions. Now, the issue is whether the application has met the threshold for the Court to exercise its discretion and grant a stay order. It is trite that, for an application of this nature to succeed, four conditions have to be fulfilled, simultaneously, pursuant to rule 11(4) (5) and (7) of the Rules, as follows; one, the application has to be filed within fourteen days from the date of service of a notice of the intended execution, two; the applicant must show that if the stay order is not made and the respondent's intended appeal fails, she would suffer substantial loss, three, the applicant has to furnish security for the due performance of the impugned decree and four, the application has to be attached with copies of a notice of appeal, judgment and decree, ruling or order appealed from, and notice of the intended execution. Equally to be noted is that, all those conditions have to be

fulfilled cumulatively. See, for instance, our decision in Rajuu Hassan v. Almahiri Mohsen Ghaled and 2 Others, Civii Application No. 570/17 of 2017 (unreported). It follows therefore, that the question whether the application is merited for being granted has to be answered in the affirmative. It is so because, not only it was basically unopposed, save for the issue of security, but also, it is for the following reasons; one, the applicant was granted an extension of time on 10/06/2024 and she filed this application on 21/06/2024, as is discerned from paragraphs 12 and 15 of the supporting affidavit, two, the application has been accompanied with all the required documents amongst them being copies of the impugned judgment, drawn order. Others are copies of notice of appeal and notice of the intended execution, as averred at paragraphs 6, 7, 8 and 10 of the affidavit in support of the application, three; in terms of rule 11(5) of the Rules, the applicant had asserted that, she stands to suffer a substantial loss of TZS 150, 115, 962.6, should the intended execution not be stalled. Such depositions are discerned from paragraphs 14 and 17 of the supporting affidavit, and four; at paragraph 18 of the affidavit, the applicant had undertaken to furnish security for due performance of the impugned decree, should her appeal fail. As such, no one of the necessary conditions has been

left out. However, with respect, Mr. Mianga may wish to remember that, for the purpose of stay, the plain words that the judgment debtor is liquid enough to pay count nothing, but rather, the security undertaken or given by him, as the case may be. I wish therefore to stress that, the beauty of the said conditions being fulfilled cumulatively, especially the giving of security it two-way traffic. The judgment debtor would comfortably appeal while the decree holder is assured of the fruits of his decree, simultaneously, however long it may take them. In conclusion, I hereby grant the application pending determination of appeal. The stay is made upon the condition that the applicant shall deposit security by way of a bank's guarantee to the tune of TZS 150,000,000.00 within sixty days of this ruling. Order accordingly. DATED at DAR ES SALAAM this 31st day of July, 2024. S. M. RUMANYIKA

JUSTICE OF APPEAL The Ruling delivered this 5th day of August, 2024 in the presence of Mr. Alex Nianga, learned counsel for the Applicant also holding brief for Ms. Jane James, learned counsel for the Respondent; is hereby certified as a true copy o f ................