| dc.description | MBEYA CEMENT CO. LTD VERSUS SARA OLE DANIEL AND ANOTHER
COURT OF APPEAL OF TANZANIA
AT MBEYA
CIVIL APPLICATION NO. 649/06 OF 2021
(Application for stay of execution of the Drawn Order of the High Court of Tanzania (Mambi, J) dated 18th day of November, 2020 in Misc. Labour Application No. 12 of 2020
CORAM: MWAMBEGELE. J.A, KOROSSO, J.A. and RUMANYIKA, J.A.)
FLY NOTES
Labour law- application –application for stay of execution – Whether the Applicant have fully met all conditions necessary warranting stay of execution of the impugned Award.
Application – application for stay of execution-role of furnishing security to the court.
BRIEF FACTS
A brief background Sara Ole Daniel and Jane Michael Mponzi, the 1st and 2nd respondents were employees of the applicant who served in the positions of Payroll Administrator and Payroll Assistant, respectively was retrenched and terminated on 13/01/2020. Aggrieved by it as unfair termination, they instituted the said labour dispute in the CMA which they won. The 1st respondent got an award of TZS 86,255,536/=. Whereas, the 2nd respondent got TZS 47,591,368/= both against the applicant. The Applicant aggrieved and filed Revision No. 20 of 2018 at the High Court which was struck out for being time barred hence incompetent. In further pursuit of its right, the applicant attempted twice for extension of time to file revision in the High Court. Its last unsuccessful battle was declared on 18/11/2021. The Applicant was aggrieved by that decision and filed a notice of appeal. However, still in the appeal process, on 06/12/2021 the respondents served the applicant with a notice of execution set for16/02/2022 for hearing which execution the applicant fears that if allowed and carried out, it will cause it to suffer irreparable loss, hence the present application.
At the hearing of the application on 23/09/2022, Messrs Ndanu Emmanuel and Isaya Zebedayo Mwanri, learned advocates appeared for the applicant and the respondents respectively. The applicant convinced the court to grant the application as they meet all conditions necessary warranting the court to grant stay of execution while the respondent strongly opposed the application for the reason that the application lacked merit because in its affidavit the applicant did not state which form of security it undertakes to give..
Application granted
ISSUES
1. Whether the Applicant have fully met all conditions necessary warranting stay of execution of the impugned Award.
2. Whether security furnished has impact to the Court
HELD
1. Consequently, with the above cumulative effects of the said conditions we are inclined to grant the application and stay execution of the Drawn Order of the High Court in Misc. Application No. 12 of 2020 emanating from Labour Dispute No. CMA/MBY/34/2016 with the condition that the applicant execute a bank guarantee equivalent of TZS 86, 255,536/= and TZS 47, 591,368/= in favor of the 1st and 2nd respondents respectively within thirty days of this ruling as a security for the due performance of the impugned award pending determination of the intended appeal.
2. We wish to state that with all intents and purpose, under rule 11(5) (b) of the Rules, in ordering a stay of execution of a decree, in this case the impugned CMA's award which is preceded by the applicant's firm undertaking to give security for the due performance, the Court's duty has double impact. One, it guarantees the judgment debtor a right to appeal without fear of untimely execution of the decree, and two, it assures the decree holder an enjoyment of the fruits of his decree in the event the applicant lost the intended appeal.
STATUTORY PROVISION REFEERED TO;
1. Rule 11 (3), (4), (4A) (5) (a) and (b) and (7) (a) - (d) of the Tanzania Court of Appeal Rules, 2009 CASE LAW REFERED TO;
1.Ignazio Messina and National Shipping Agencies v. Willow Investment & Costa Shinyanga, Civil Reference No. 8 of 1999 (unreported)
2. Transport Equipment Ltd & Reginald John Nalan v. Devram P. Valambhia, Civil Application No. 19 of 1993, (unreported)
3.Tanzania Saruji Company v. African Marble Company, Civil Application No. 67 of 1997 and NBC Holding Corporation v. Hassan Nuru Hassan, Civil Application No. 89 of 2001 (unreported).
4.Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No. 247 of 2016 Joseph Anthon Spares @ Goha Hussein Omary, Civil Application No. 6 of 2012(unreported)
5. Laurent Kavishe v. Eneiy Hezron, Civil Application No. 5 of 2012 Mantrack Tanzania v. Raymond Costa, Civil Application No. 11 of 2020(unreported)
Messrs Ndanu Emmanuel for the Applicant
Isaya Zebedayo Mwanri for the Respondent | en_US |
| dc.description.abstract | HELD
1. Consequently, with the above cumulative effects of the said conditions we are inclined to grant the application and stay execution of the Drawn Order of the High Court in Misc. Application No. 12 of 2020 emanating from Labour Dispute No. CMA/MBY/34/2016 with the condition that the applicant execute a bank guarantee equivalent of TZS 86, 255,536/= and TZS 47, 591,368/= in favor of the 1st and 2nd respondents respectively within thirty days of this ruling as a security for the due performance of the impugned award pending determination of the intended appeal.
2. We wish to state that with all intents and purpose, under rule 11(5) (b) of the Rules, in ordering a stay of execution of a decree, in this case the impugned CMA's award which is preceded by the applicant's firm undertaking to give security for the due performance, the Court's duty has double impact. One, it guarantees the judgment debtor a right to appeal without fear of untimely execution of the decree, and two, it assures the decree holder an enjoyment of the fruits of his decree in the event the applicant lost the intended appeal. | en_US |
