SAHARA RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISC. LABOUR APPLICATION NO. 16055 OF 2024 (Arising from Labour Execution No.17 of 2023 in the High Court of Tanzania (Mwanza Sub-Registry at Mwanza) SAHARA MEDIA GROUP LIMITED………………………………………APPLICANT

VERSUS BIDYA JOHN AND 9 OTHERS…………………………………………RESPONDENTS

RULING 10th and 31st October, 2024 KAMANA, J. In this application, Sahara Media Group Limited, the applicant seeks two orders against Bidya John and 9 others. The first sought order is that this Court should lift garnishee order nisi issued on 20th June, 2024 in Labour Execution No. 17 of 2024 that attached the bank accounts of the applicant. The second one is that this Court should vacate the garnishee order nisi issued on 20th June, 2024 that attached the banks account. The application was supported by an affidavit deponed by Mr. Boniface Sariro, learned Counsel for the plaintiff. According to the affidavit, the applicant was not satisfied with the decision of the decision of the Commission for Mediation and Arbitration 1 (CMA) in Labour Dispute No. CMA/MZ/LLM/588-596-643/113/1/426/2019 which was in favour of the respondent. Its efforts to challenge the decision in this Court proved futile. Aggrieved, the applicant has appealed to the Court of Appeal and the respondents have been served accordingly. On the respondents’ side, having triumphed over the applicant in the CMA and this Court, they lodged Labour Execution No. 17 of 2023 in this Court. Following the matter's institution, this Court issued garnishee order nisi. That did not amuse the applicant, hence this application. The parties were ordered to dispose of the application by written submission. Both complied with the

scheduled order. When the matter was set for necessary orders, this Court asked the parties to address whether it has jurisdiction to entertain the application, considering that there is an appeal before the Court of Appeal against the decision that led to Labour Execution No. 17 of 2024. Addressing the Court, Mr. Sariro, learned Counsel for the applicant, held the view that it is a cardinal rule that once there is an appeal before the Court of Appeal, the High Court ceases to have jurisdiction. However, the learned Counsel took exemption to the rule by contending that the said application which was preferred under section 2(3) of the Judicature and Application of Laws Act, Cap. 358 [RE.2019], Section 38, 95 and Order XXI Rule 2 of the Civil Procedure Code, Cap. 33 [RE.2019] is not subjected 2 to the rule. Ms. Martha Mbosori, learned Counsel distanced herself from arguing the matter on the reasons that she was holding brief for Mr. Beatus Linda, learned Counsel for the respondents. The settled law is that when an appeal is brought before the Court of Appeal, the High Court ceases to have jurisdiction over the matter save for matters relating to certification on the point of law and execution when there is no order for staying the same. This position was restated in the case of Matsushita Electric Co. (E.A) Limited v. Charles George t/a G.G Traders, Civil Appeal No. 71 of

2001-CAT (Unreported) where it was stated: ‘………………once a notice of appeal is filed under Rule 76, then this Court is seized of the matter in exclusion of the High Court except for application specifically provided for such as leave to appeal, provision for a certificate of point of law or execution where there is no order of stay from this Court.’ In the context of this application, this Court has jurisdiction to deal with execution matters if there is no appeal before the Court of Appeal and in the absence of the apex Court’s order to stay the execution. In other words, it is only the Court of Appeal that has jurisdiction to stay the execution when there is an appeal against the decision of the High Court that led to the execution in question. 3 That being the position, this Court asked itself whether it is clothed with jurisdiction to lift the garnishee order nisi it issued when there is an appeal before the Court of Appeal. In determining the question, I am of the considered view that the garnishee order nisi is a method of executing a decree pronounced by the court of law. Hence, to lift the garnishee order nisi amounts to stay the execution of the decree. In this, I am inspired by the position taken by the Court of Appeal in the case of Tanzania Electric Supply Co. Limited v. Mafungo Leonard Majura and 14 others, Civil Application No. 210 of 2015-CAT (Unreported) where it

was held: ‘We begin by appreciating that the garnishee order nisi which necessitated the lodging of this application was made under Order XXI Rule 45 (1) (c) of the CPC which covers execution of court decrees in certain instances by attachment of debt, share and other property not in possession of judgment debtor.’ The apex Court added: ‘The request by the applicant to lift a garnishee order nisi is part of the process of execution because in essence it entails moving the Court to stop the process of execution.’ Considering the position of the law as recapitulated by the Court of Appeal, this Court has no jurisdiction to stay the execution in whatever form including lifting of the garnishee order nisi when there is a pending 4 appeal in the Court of Appeal. This position was well restated by the Court of Appeal in the case of Awiniel Mtui and Others v. Stanley Ephata Kimambo (Attorney for Ephata Mathayo Kimambo), Civil Application No. 19 of 2014 where it was remarked: ‘True, as was stated in those two cases, in matters relating to stay of execution once a Notice of Appeal is filed under Rule 83, then the Court of Appeal is seized of the matter to the exclusion of the High Court.’ Since the applicant, in his affidavit, stated that there is a pending appeal before the Court of Appeal, I cannot extend my wings to determine the matter which falls squarely in the apex Court’s jurisdiction. The application is dismissed for want of jurisdiction. Since the same emanates from the labour matter, I order no costs. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 30th of October, 2024.

KS KAMANA

JUDGE 5