CIVIL APPLICATION NO 517 14 OF 2024 SAMU SECURICOR INTERNATIONAL VS MARTIN MSENGI KINGU 2 OTHERS

IN THE COURT OF APPEAL OF TANZANIA

AT SHINYANGA CIVIL APPLICATION NO. 517/14 OF 2024 SAMU SECURICOR INTERNATIONAL................................. APPLICANT

VERSUS MARTIN MSENGI KINGU 1st RESPONDENT SHABAN HAMIS 2nd RESPONDENT HAMFREY MUGUNDA 3rd RESPONDENT (Application for Stay of Execution of the decree of the High Court of Tanzania (Labour Revision No. 202403131000005319/2024) at Shinyanga) (Mahimbali, J.^ dated 6th day of June, 2024 in Labour Revision No. 202403131000005319

RULING 13th& 23rd September, 2024. NGWEMBE. J.A.: By notice of motion, the applicant has moved the Court for an order of stay of execution of the High Court's decision dated 6th June, 2024 in Labour Revision No. 202403131000005319. The application was lodged to the Court under certificate of urgency dated 8th July, 2024 accompanied with notice of motion and affidavit affirmed by one Salum Hamis, identified as principal officer of the applicant. Besides, the respondents were employees of the applicant, but were dismissed. Being aggrieved with their dismissal, they instituted a labour dispute before the Commission for Mediation and Arbitration (CMA) at Shinyanga in Labour dispute No. CMA/5HY/81/2022, which decision was in favour of the respondents, whereby the applicant was ordered to pay the respondents salary arrears in the sum of TZS. 798,000.00. That, decision aggrieved the applicant, hence appealed to the High Court in Labour Revision No. 20240313100000519/2024. The High Court after determination of the revision, upheld the decision of CMA and dismissed the application for lack of merits. Again, the applicant was aggrieved with the decision of the High Court, hence preferred an appeal to the Court. She lodged a notice of appeal, but the respondents had applied for execution before the High Court consequently, this application for stay of execution. At the hearing of this

application, Ms. Grace Hegha, learned advocate entered appearance for the applicant, while the respondents appeared in persons unrepresented. In her submission, Ms. Hegha intimated that the application was lodged timely as per rule 11 (4) of the Tanzania Court of Appeal Rules,2009 (the Rules) and the affidavit in support to the notice of motion is attached with notice of appeal dated 20th June, 2024; the judgement of the High Court which is subject of the intended appeal; decree of the High Court and the application for execution subject of this application, thus complied with rule 11 (7) of the Rules. Moreover, the learned advocate argued that the applicant has firmly committed to furnish security as per the Court's order. Therefore, the advocate implored the Court to grant the orders sought in the notice of motion and also, urged the Court to invoke rule 106 (3) of the Rules to lift the garnishee order issued by the High Court against the operating account of the applicant. She supported her argument with the case of Jovet Tanzania Limited v. Bavaria N.V, (Civil Appeal No 317 of 2021) 2024 TZCA 737 (15 August 2024). She submitted that the High Court lacked jurisdiction to proceed with orders of execution, while the applicant had already lodged notice of appeal. In response therein, Mr. Martin Msengi Kingu resisted the application because the applicant has failed to comply

with the lower courts order and the present application is intended to delay further their rights. He added that the respondents have their permanent residential homes with their families known to the applicant as their former employer. Thus, what they are looking for is to be paid their 3 rights. Therefore, he urged the Court to dismiss the application forthwith. Shaban Hamis and Hamfrey Mugunda, second and third respondents respectively, had similar arguments tike the first respondent. Ms. Hegha in rejoinder did not have anything new rather, she reiterated her submission in chief. Having dispassionately considered the contents of the notice of motion, affidavit of the applicant and the submissions of both parties, the question for determination is whether this application has merit. The law is settled on the applications of this nature. That, the applicant has a duty to comply with rule 11 of the Rules. Rule 11 (4) of the Rules provides time frame of 14 days to institute application for stay of execution, while subrule 5 of rule 11 provide mandatory requirement to the applicant to disclose consequences if the orders sought are not granted. Also, the applicant must firmly commit to provide security for due performance of the decree or order sought to be stayed. Lastly the application must accompany with a notice of appeal, decree or order appealed from, judgment or ruling

appealed from and notice of the intended execution. Those are basic requirements for application of this nature. It is significant to underscore that the above conditions had to be complied with cumulatively, meaning that where one of them could have not been satisfied, the Court would decline to grant the order for stay of execution. See the cases of Laurent Kavishe v. Enely Hezron (Civil Application No. 5 of 2012) [2013] 77CA 365 (3 May 2013); The Attorney General Zanzibar v. Jaku Hashim Ayub & Another, Civil Application No. 385/15 of 2018; The Registered Trustees of the University of Bagamoyo v. Robert Damian, Civil Application No. 15/17 of 2017 (both unreported) and Joseph Anthony Soares @ Goha v. Hussein s/o Omary (Civil Application No. 6 of 2012) [2013] T7CA 328 (8 May 2013). As earlier on pointed out, the applicant's notice of motion raised four grounds which I have boiled down to only two of them. Only the third ground which refers to substantial loss falls under rule 11 (5) (a) of the Rules, while ground four is a firm commitment to provide security as required in rule 11 (5) (b) of the Rules and the rest of the grounds are irrelevant. These same grounds have been extensively covered in submission of the learned advocate. Moreover, the applicant expressly disclosed that the respondents' domicile is unknown as they have refused to disclose it to the applicant as

their employer. In the contrary, the respondents have vehemently argued that their homestead are well known and they have permanent residence. However, the respondents did not swear or affirm affidavits in reply in terms of rule 56 (1) of the Rules to rebut the contents of facts deposed by the applicant. Therefore, what the respondents argued at the hearing are from the bar not supported by sworn affidavits. It is requisite to point out here that, when the applicant has complied with all conditions prescribed in rule 11 of the Rules, the Court will seldom refuse to grant the prayer for stay of execution because the purpose of stay of execution, like in this application, is to preserve the envisaged unrecoverable loss to the applicant pending final determination of the intended appeal. See the case of Felix Emmanuel Mkongwa v. Andrew Kimwaga (Civil Application No. 249 of 2016) [2020] TZCA 333 (9 June 2020). It is aiso the rule that where the applicant has complied with all the requisites of the law, this Court will make sure that such execution, whose nature is preemptive to an appeal or revision pending before the Court, is halted for a while. Regarding the decision of this Court in Jovet 6 Tanzania Limited v. Bavaria N.V (supra), I have observed that it is distinguishable to this application thus, deserves no further address. I therefore, find no reason to refrain from

granting this application where the applicant has cumulatively complied with relevant conditions set out in rule 11 of the Rules. Equally Ms. Hegha implored the Court to invoke rule 106 of the Rules to lift the garnishee order issued by the High Court. She substantiated her prayer by submitting that rule 106 covers the situation like in this application which the prayer to lift up the garnishee order was neither pleaded in the notice of motion nor in supporting affidavit. Due to its importance, rule 106 (3) of the Rules is quoted hereunder: Rule 106 (3) "the written subm ission sh all contain: (a) N/A (b) Statem ent o f what are, in the appellant's or applicant's view, the issues arising in the appeal, cross appeal or application - 0) N/A (ii) I f the appellant or applicant, intends to apply fo r leave i to introduce an additional ground not taken in the memorandum o f appeal or notice o f motion> this sh a ll be indicated in the subm issions." The law says what it means and it means what it says, thus the issue of lifting the garnishee order came up from the bar as was not pleaded, however, the rules allow either party to seek leave to introduce that new ground. Without referring to any decided case, the law confers powers to the Court to grant such additional ground. I therefore, find no justification to refrain from granting that additional ground. In the end, I allow the

prayer for stay of execution and lift the garnishee order issued by the High Court pending final determination of the intended appeal. For clarity the decree of the Commission for Mediation and Arbitration for Shinyanga in CMA/SHY/81/2022 which was upheld by the High Court in Labour Revision No. 202403131000005319 is hereby stayed pending final determination of the intended appeal before this Court. Also, the garnishee order issued by the High Court to the bank accounts of the applicant is hereby lifted until the final determination of the intended appeal. This order is conditional upon the applicant depositing a Bank's Guarantee covering the amount of money of TZS. 5,000,000.00 as security for the due performance of the decree within a month's time to be reckoned from the date of delivery of this ruling. It is so ordered. DATED at DAR ES SALAAM this 20th day of September, 2024. P. J. NGWEMBE

JUSTICE OF APPEAL The Ruling delivered this 23rd day of September, 2024 through video link from Shinyanga High Court in the presence of Ms. Grace Hegha, learned counsel for the Applicant while the respondents appeared in persons unrepresented is hereby certified as a true copy of the original. 9