Council of St. Augustine University of Tanzania vs Alfred Faustine Malugu (Civil Application No. 1517 of 2025) [2025] TZCA 974 (17 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1517 OF 2025 COUNCIL OF ST. AUGUSTINE UNIVERSITY OF TANZANIA ......... .APPLICANT VERSUS ALFRED FAUSTINE MALUGU ................................................ RESPONDENT (Application for stay of execution of the decision of the High Court of Tanzania (Labour Division) at Mwanza) ( Kamana. J.^ dated 18th day of March, 2024 in Labour Revision No. 70/71 of 2022 RULING 11th & 17th September, 2025 MANSOOR. J.A.: The applicant, the Council of St. Augustine University of Tanzania, filed a Notice of Motion premised under rule 11(3), (4), (4)A, (5)(a), (b), (c), (6), (7)(a), (b), (c) and (d), rule 48(1), (2) and rule 49(1) of the Tanzania Court of Appeal Rules, 2009,(the Rules), seeking for an order of stay of execution of the decree issued by the High Court of Tanzania in Labor Revision No, 70/71 of 2022 pending the hearing and determination of the appeal intended to be filed before the Court. The grounds upon which the Notice of Motion is based can be summarized as follows:

1. That if the order of stay of execution is not granted, the applicant will suffer irreparable and substantial loss.
2. That the judgment and decree of the High Court raises serious legal issues, and it wil! be in the interests of justice to stay its execution pending the appeal.
3. That the application for stay of execution has been made without unreasonable delay. The Notice of Motion is supported by the affidavit deposed by Ms. Linda Okereke, the applicant's Human Resources Officer, sworn on 1s t August, 2025. The applicant stated in her affidavit that she is ready to furnish security for the due performance of the decree in the form of a bank guarantee of the amount equivalent to the decretal sum. The respondent failed to file the affidavit in reply to contest the application, despite the leave to do so granted by the Court. Briefly, the facts leading to the present application, as depicted from the affidavit of the applicant in support of the application, revolve around a labour dispute on an unfair termination. The respondent, the employee of the applicant instituted Labor Dispute No. CMA/MZ/NYAM/354/2020/ 112/2021 before the Commission for Mediation and Arbitration in Mwanza (the CMA). After full trial, the CMA gave an award in favour of the respondent finding that the termination of his employment was unfair and

had ordered that he be paid compensation equivalent to 12 months' salary. Dissatisfied with this outcome, both parties sought revision in the High Court of Tanzania (Labour Division) at Mwanza, where their respective applications were consolidated as Labour Revisions Nos. 70 and 71 of 2022. The High Court confirmed the decision of the CMA and determined that the termination was both procedurally and substantively unfair, thereby enhancing the award of compensation to 15 months' salary. After the determination of the application for revision by the High Court, the applicant filed a Notice of Appeal on 5th April 2024 and served it on the respondent on 17th April 2024, intending to appeal against the decision of the High Court. However, the appeal has not yet been lodged as the applicant is still waiting to be furnished with the certified copies of proceedings from the High Court. No execution proceedings have commenced, but the applicant seeks to prevent any potential frustration of the appeal. During the hearing of the application on 11th August 2025, the applicant was represented by Mr. Innocent Benard, the learned Advocate, and the respondent had the services of Mr. Reagan Charles, the learned Advocate. Notably, the respondent did not file an affidavit in reply, and

was thus allowed to argue on points of law only, in line with the established practice. In his submissions, Mr. Benard contended that the application complies with Rule 11(7) of the Rules, as it was filed on time. He further argued that, the applicant has stated in paragraph 10 of the affidavit that she is ready to furnish security for the due performance of the decree in the form of a bank guarantee for the decretal sum. The counsel therefore prayed for an order of stay of execution to be granted without costs, emphasizing that this is a labour matter where costs are not typically awarded against the employee. Mr. Charles opposed the application on two grounds: First, that the applicant does not demonstrate an intention to appeal, as the appeal was not lodged within 60 days of the date the Notice of Appeal was filed, with no reasons provided for the delay. Second, that the applicant did not comply with Rule 84(1) of the Rules as she did not serve the Notice of Appeal to the respondent within the prescribed time. He further contended that granting an order of stay of execution would undermine the decree holder's right to enjoy the fruits of the decree, suggesting an intent to frustrate execution.

In rejoinder, Mr, Benard submitted that the Notice of Appeal, attached to the application, was filed on 5th April 2024 and served to the respondent on 17th April 2024, clearly demonstrating the intention to appeal. The appeal has not yet been filed due to unavailability of the record which he is making follow up for obtaining them as he wrote several letters to the High Court requesting for the same. He said copies of these letters were all served to the respondent. He argues further that the argument is misplaced as such an argument could have been valid if it was raised in an application for striking out the Notice of Appeal, and not on an application for stay of execution. Before determining the applications on its merits, it is important in this matter to address the procedural irregularity in the manner the respondent opposed this application on points of law. As noted, the respondent did not file the affidavit in reply, despite the leave granted by the Court to do so. In such circumstances, the respondent is confined to arguing on points of law only, as the facts in the applicant's affidavit stands uncontroverted. This principle is well-established in various cases, for instance, in Rosemary Stella Chambejairo vs David Kitundu Jairo (Civil Reference 6 of 2018) [2021] TZCA 442 (2 September 2021), this Court held that;

'Now an affidavit in reply being a substitute o f oral evidence ought to be sworn if a party intends to counter any fact deponed in the affidavit in support uniess the point is legal, then even without an affidavit in reply, that point can be addressed ' In the instant matter, although the respondent's counsel was permitted to respond only on points of law, he went ahead on arguing on facts. Mr. Charles's argument that the applicant has no intention to appeal because he has not filed the appeal within 60 days from the date of the notice is not only a point of fact which he could have countered it by an affidavit in reply with its supporting documents, the argument is also misplaced. As correctly submitted by the applicant’s counsel such opposition on facts could be raised and be a valid argument had the respondent applied for striking out the notice of appeal on the reasons that the applicant has failed to take essential steps in pursuing the appeal in accordance to rule 89 (2) of the Rules. It is a trite law that a Notice of Appeal is sufficient to clothe this Court with jurisdiction to entertain an application for stay of execution, and failure to file an appeal within the prescribed time can be cured by an application for extension of time.

Rule 11 (7) of the Rules states that; '(7) An application for stay o f execution shall be accompanied by copies o f the foliowing- (a) a notice o f appeal; (b) a decree or order appealed from; (c) a judgment or ruling appealed from; and (d) a notice o f the intended execution. The Rules clearly stipulate that the filing of an application for a stay of execution requires, among other documents, the submission of a notice of appeal. Whether the appeal was filed within the prescribed time or if the notice of appeal was not served to the respondent on time, first these are matters of facts which requires proof and could have been raised in an affidavit in reply, and secondly, these matters are not relevant when considering an application for stay of execution. In the case of Meis Industries Company Limited vs Exim Bank Tanzania Limited (Civil Application No. 70 of 2014) [2015] TZCA 258 (17 February 2015) this Court held that; "We agree with Mr. Mnyeie that under the Rules, it is a Notice of Appeal which clothes this Court with jurisdiction to entertain an application for stay of execution. (See

RAMADHANIALL Y& 2 OTHERS VSSHABANI ALLY (Civil Application No. 3 o f 2008 (unreported). We also agree with him that such notice must be a valid one in the eyes o f the law". As such, the respondent's argument is out of context and has no legal basis. Moreover, the respondent's argument that granting a stay would frustrate the decree holder's right to enjoy the fruits of his decree is not an absolute one. The purpose of a stay is not to deny the successful party their right but to balance the competing rights of both parties pending the appeal. This is done to ensure that the process of justice is not defeated by execution. Turning to the merits, the grant of stay of execution is discretionary, guided by Rule 11(5) of the Rules, which requires the applicant to demonstrate: (a) substantial loss if stay is not granted; (b) that the application is made without unreasonable delay; and (c) provision of security for due performance of the decree. The over reaching principle is to preserve the status quo pending appeal, ensuring the appeal is not rendered nugatory, while balancing the interests of justice. 8

In Jonathan Nkya vs Ibrahim Willy Mnzava (Civil Application No 1406 of 2024) [2025] TZCA 189 (7 March 2025), this Court reiterated that stay of execution may be granted where the intended appeal raises serious legal issues, execution would cause irreparable loss not atonable by damages, and the appeal has prospects of success. Similarly, in SBC Tanzania Limited vs Abdallah Kondo Chuma (Civil Application No 1572 of 2024) [2025] TZCA 17 (12 February 2025), a labour matter akin to this one, stay was considered appropriate so long as the applicant filed the application for stay of execution within 14 days of the date he was served with the notice of execution or the date he became aware of the execution as stated in Rule 11(4) and has offered security. A stay of execution also was granted for preventing attachment of assets that could cripple operations. In the present application, the applicant was able to demonstrate that she will suffer substantial loss and if the execution would be permitted it will cause irreparable harm to the institution, as the decretal sum could not be recovered if the appeal succeeds, given the respondent's potential inability to refund. 9

As it is vividly clear from the record, the application was made without unreasonable delay, thereby all the conditions for granting an order for stay of execution were satisfied. As stated earlier, the Notice of Appeal was filed on 5th April 2024, and this application follows promptly after the applicant became aware of the respondent's efforts to execute the decree or award. Rule 11(4) of the Rules allows the applicant to file the application for stay of execution within fourteen days from service of notice of execution or the date the applicant became aware of the processes of execution. In this matter, and as stated hereinbefore, no execution has started or was initiated by the respondent, but the application is prophylactic, which is permissible under the Rules. Third, on security, the applicant has expressed readiness to furnish a bank guarantee for the decretal sum, satisfying Rule ll(5)(c). This is a standard condition in halting the execution of awards issued by the labor court, and the purpose it to protect the interests of the decree holder, if the appeal becomes unsuccessful. Moreover, the intended appeal appears arguable. The applicant's rejoinder highlights that the applicant is still making serious follow-ups in 10

order to obtain the proceedings and important documents from the High Court to enable him to lodge the appeal. In balancing convenience, per the Employment and Labour Relations Act, Section 88, compensation for unfair termination is remedial and shall be paid to the respondent if the appeal becomes unsuccessful, but it is in the interests of justice to preserve the status quo and the intention is not to render the appeal nugatory or to frustrate the efforts of the appellant when seeking for justice. Granting of an order of stay of execution preserves the applicant's right to appeal without undermining the rights of the respondent to enjoy the fruits of the decree. In any case, if the appeal fails, the respondent would recover the decretal award from the security which will be already deposited in court. I am also mindful that this is a labour matter, where equity favours expeditious resolution without costs burdens, as prayed by the applicant. For the foregoing reasons, I find the application meritorious. Accordingly, I order that;

1. The application is granted.

2. Execution of the decree of the High Court in Labor Revision No 70/71 of 2022 is stayed pending the hearing and determination of the intended appeal. ii

3. The applicant shall furnish security in the form of a bank guarantee for the full decretal sum within 30 days from the date of this ruling, to the satisfaction of the Registrar.

4. In default of furnishing security, the stay shall lapse automatically.

5. No order as to costs, this being a labour matter. DATED at DODOMA this 17thday of September, 2025. L. A. MANSOOR JUSTICE OF APPEAL The Ruling delivered this 17th day of September, 2025 in the presence of Mr. Innocent Benard, learned counsel for the Applicant, Mr. Reagan Charles, learned counsel for the Respondent and Mr. Elias Nkwabi, Court Clerk both via virtual Court is hereby certified as a true copy of the original. 12