Nyarugusu Mine Company Limited vs The Labour Commissioner & Another (Civil Application No.141/08 of 2021) [2023] TZCA 17635 (20 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NDIKA, J.A., KIHWELO, J.A.. And MWAMPASHI. J J U CIVIL APPLICATION NO. 141/08 OF 2021 NYARUGUSU MINE COMPANY LIMITED ..................................................... APPLICANT VERSUS THE LABOUR COMMISSIONER.............................................................. 1 st RESPONDENT KASSANGA COURT BROKERS................................................................2 nd RESPONDENT (Application for stay of execution of the Order of the High Court of Tanzania, Labour Division at Mwanza) (Mgevekwa, J.) Dated the 12th day of November, 2020 in Miscellaneous Labour Application No. 76 of 2020 RULING OF THE COURT ISP & 2Cfh Septem ber, 2023 NDIKA. J.A.: Nyarugusu Mine Company Limited ("the applicant") seeks an order of this Court staying execution of the order of the High Court, Labour Division at Mwanza ("the High Court") dated 12th November, 2020 in Miscellaneous Labour Application No. 76 of 2020. By that order, the High Court refused to vacate the order of the Deputy Registrar in Labour Execution No. 12 of 2020 dated 17th September, 2020. i

It is on record that on 1st March, 2019 Mohamed Majaliwa, a Labour Officer in terms of section 43 (3) of the Labour Institutions Act, Cap. 300 ("the LIA"), issued a compliance order against the applicant, pursuant to section 45 of the LIA, for payment of salary arrears to 105 employees of the applicant. The arrears were for the months of October 2018 through February 2019 amounting to TZS. 284,766,650.00. The applicant was required to comply with the order within thirty days after receiving it, but it did not do so. In terms of section 47 (8) of the LIA, the Labour Commissioner ("the first respondent") applied to the High Court vide Labour Execution No. 12 of 2020 for enforcement of the compliance order following the applicant's defiance. The Deputy Registrar of the High Court granted the application on 17th September, 2020 and appointed Kassanga Court Brokers, the second respondent herein, to execute the order according to the law. Resenting that execution order, the applicant lodged Miscellaneous Labour Application No. 76 of 2020 assailing the order. By its decision dated 12th November, 2020, the High Court (Mgeyekwa, X, as she then was) dismissed the matter. Still dissatisfied, the applicant lodged a notice of appeal on 16th November, 2020 to manifest its intention to appeal to this Court against Mgeyekwa, J's decision. Pending hearing and determination of the intended appeal, the applicant now moves this Court for an order staying execution of the High Court's order.

Before us Mr. Akram Adam, learned counsel for the applicant, submitted that the matter has met all the threshold requirements of rule 11 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). When we queried him if the dictates of rule 11 (4) and (7) of the Rules have been met, the learned counsel initially prevaricated but then urged us to invoke rule 4 of the Rules to salvage the application. For the first respondent, Mr. Lameck Merumba, learned Senior State Attorney who was accompanied by Ms. Amina Mkuya, learned State Attorney, disagreed with his learned friend. His essential submission was twofold: first, he contended that the notice of motion and the supporting affidavit do not provide any proof of service of notice of execution for the Court to determine if the matter was lodged within time in terms of rule 11 (4) of the Rules. He elaborated that while the notice of motion was lodged on 10th February, 2021, the extract of the execution proceedings before the High Court, which is attached to the supporting affidavit, indicates that the said proceedings took place on 19th September, 2020. This fact, he said, implied that the applicant dawdled for over 130 days after the execution had commenced. Secondly, the learned State Counsel posited that the applicant has only furnished a copy of the notice of appeal, meaning that three other essential documents required under rule 11 (7) of the Rules have been omitted. On that basis, he urged us to hold that the application is incompetent and proceed to strike it out.

Mr. Mathew G. Nkanda, learned counsel for the second respondent, supported Mr. Merumba's submissions. In a brief rejoinder, Mr. Adam repeated his plea that the matter be salvaged. We have scanned the notice of motion as well as the supporting affidavit and considered the contending submissions of the learned counsel for the parties. The pivotal issue in this matter, which is whether the application has met the requirements of the law, poses no difficulty. As rightly argued by Mr. Merumba, it is manifest on the record that contrary to the dictates of rule 11 (4) of the Rules requiring an application of this nature to be lodged within fourteen days after the applicant is served with the notice of execution or from the date he is otherwise made aware of the application for execution, the matter was lodged out of time on 10th February, 2021 when the execution had been ongoing at the High Court level for over 130 days. We also agree with Mr. Merumba that the application is further dented by the omission to furnish copies of the impugned order of the High Court, the assailed ruling of the High Court and the notice of execution. This omission is a violation of the mandatory provisions of rule 11 (7) of the Rules. Certainly, we were minded to do substantial justice in the spirit of the overriding objective by allowing the applicant to remedy the defect by 4

furnishing the documents, but that would not have salvaged the matter because it was, in the first place, lodged out of time. Given the circumstances, we hold, as we must, that this application is incompetent. We thus strike it out. In consonance with the usual practice that labour matters do not attract awards of costs, we make no order as to costs. It is so ordered. DATED at MWANZA this 19th day of September, 2023. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 20th day of September, 2023 in the presence of Mr. Allen Mbuya, learned State Attorney for the 1st respondent/Solicitor General and absence of the applicant and 2n d Respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 5