Bank of Africa Tanzania Limited vs Patrick Mashele & Another (Civil Application No. 527 of 2023) [2024] TZCA 1303 (24 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SAALAM CIVIL APPLICATION NO. 527/18 OF 2023 BANK OF AFRICA TANZANIA LIMITED APPLICANT VERSUS PATRICK MASHELE ................................ FELIX J IA ..... . ........................................ 1 st RESPONDENT 2 nd RESPONDENT (Application for an order for stay of execution of the Judgment and Decree 11th September & 24th December, 2024 WAMBALI. 3.A,: Patrick Mashele and Felix Jia, the respondents, filed Labour Dispute No. CMA/ILEM/340/2020/122/2020 at the Commission for Mediation and Arbitration (the CMA) against the applicant in which they prayed for reinstatement to their employment on contention that they were unfairly terminated. Upon hearing the parties, the CMA ordered their reinstatement without loss of remuneration from the date of termination. It further ordered that, in case reinstatement was not an option, the respondents should be paid compensation of twelve months and terminal of the High Court of Tanzania at Mwanza) ( Dvasobera, Dated the 08th day of June, 2023 in Labour Revision No. 53 of 2022 RULING OF THE COURT

benefits. Aggrieved, the applicant filed Labour Revision No. 53 of 2022 at the High Court. However, the High Court upheld the decision of the CMA. Subsequently, the applicant lodged a notice of appeal on 26th June, 2023 to contest the decision of the High Court. Nonetheless, the respondents filed Labour Execution Application No. 29 of 2023 seeking to execute the CMA award and served the applicant with the summons to appear to show cause why the award which was confirmed by the High Court should not be executed. It is noteworthy that the total amount indicated in the application for execution isTZS. 686,374,785.00 to be realized through an order for attachment and sale of the properties of the applicant mentioned therein. The respondents' application for execution prompted the applicant to lodge the current application seeking an order for stay of execution of the award of the CMA which was confirmed by the High Court. The application is supported by the affidavit deposed by Elizabeth Muro, Company Secretary and Head of Legal Services of the applicant. The application is strongly contested by the respondents through the affidavits in reply deposed by Patrick Masheie and Felix Jia, the first and second respondents respectively.

At the hearing of the application, M r. Philip Ilungu and M r. Florence Tesha, learned advocates entered appearance for the applicant and respondents respectively. I wish to state at the outset that, during the hearing of the application, counsel for the parties were not at issue on the compliance by the applicant with the provisions of rule 11(4) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) respectively concerning the promptness of lodging the application within the prescribed period and attachment of relevant documents in support of the application. The epicenter of the contest by the parties, therefore, is on the compliance with the conditions prescribed under the provisions of rule 11 (5) (a) and (b) of the Rules, which I deem it appropriate to reproduce hereunder: "11 (5) No order for stay o f execution shall be made under this rule unless the Court is satisfied that - (a) substantial loss may result to the party applying for stay o f execution unless the order is made; (b) security has been given by the applicant for the due performance o f such decree

or order as may ultimately be binding upon him ." Submitting in support of the application on the issue of suffering loss by the applicant, Mr. Ilungu reiterated the averment contained in paragraph 9 of the affidavit that, the amount of TZS. 686,374,785.00 which the respondents seek to execute is so colossal and will ultimately paralyse the operations of the applicant if an application for stay of execution is not granted by the Court. It was further submitted for the applicant that, the respondents' current source of income is unknown and therefore, the applicant will not be able to recover the decretal sum in the event the intended appeal is determined in her favour. Countering the submission of the applicants’ counsel on the issue of suffering substantial loss, Mr. Tesha fully adopted and reiterated the averments of the respondents contained in paragraphs 11 and 12 of the affidavits in reply. The learned counsel argued that gauging from paragraphs 11 and 12 of the applicant's affidavit and the response of the respondents in the affidavit in reply, it can firmly be concluded that the respondents are more likely to suffer loss if the order for stay of execution is made by the Court. He submitted further that, the first and second respondents were relation manager and branch manager respectively, and thus they have not been able to secure any employment following the

termination since the recommendation for another employment must come from their former employer. This is because, he stated, the applicant has not been cooperative to assist the respondents to secure employment form other employers. Mr. Tesha concluded that based on the material on the record of the application, the respondents shall suffer greatly and urged me to find that the applicant has not complied with the provision of rule 5(a) of the Rules to convince the Court make an order for stay of execution. I have thoroughly scrutinized the applicant’s notice of motion, the averment in paragraphs 9 of the affidavit in support of the application and the counsel’s submission amid the contending submission of the respondents' counsel and the affidavits in reply. I am satisfied that the reasons advanced by the applicant constitute good cause to be eligible for the Court consideration in his favour. Considering the materials in the record of the application placed before me, I entertain no doubt that in view of the amount of money involved in the intended execution of the award in case of failure by the applicants to satisfy the decree, substantial loss may be suffered by the applicant if stay of execution is not granted. In Airtel Tanzania Ltd v. OSE Power Solutions (Civil Application No. 336 of 2017) [2017] TZCA 140 (20 October 2017, TANZLII), the Court

granted the application for stay of execution of the decree on among others, the ground that the amount of TZS. 4,000,000,000.00 was colossal. See also National Bank of Commerce Ltd v. Alfred Mwita (Civil Application No. 172 of 2015) [2018] TZCA 270 (5 September 2018, TANZLII). I therefore, hold that the first condition for the grant of the order for stay of execution has been met by the applicant. With regard to the requirement to furnish security, M r. Ilungu basically made reference the applicant's undertaking under paragraph 7 of the affidavit. He emphasized that the averment of the applicant in paragraph 7 of the affidavit shows that the applicant is ready, able and willing to provide any undertaking and comply with all conditions that the Court will impose for grant of stay of execution. In his submission, the applicant's averment constitutes a firm undertaking to give security as may be ordered by the Court. Relying on the decisions of the Court in Helenic Foundation t/a St. Constantine’s International School v. Jessica Teffe (Civil Application No. 529/02 of 2022) [2023] TZCA 17727 (4 October 2023, TANZLII) and UAP Insurance (T) Limited v. Yuda Thomas Shayo & Others (Civil Application No. 611/18 of 2022) [2024] TZCA 239 (25 March 2024, TANZLII), he submitted that the applicant is

willing to deposit the bank guarantee to the tune of TZS. 686,374,785.00 if the order for stay of execution is made by the Court. Responding, Mr. Tesha submitted that, though the applicant has undertaken to comply with the order which may be made by the Court if the application is granted, the security to be ordered should be in a form of cash deposit of TZS. 686,374,785.00 as indicated in paragraph 9 of the supporting affidavit. Relying on the decision in CRDB Bank Ltd v. Issack B. Mwamasika & 2 Others [2017] T.L.R. 61, the learned advocate maintained that the prayer for an order for cash deposit is made because most of the applicant's offices are located on the leased buildings hence, there is no assurance that she has immovable assets in Tanzania which are capable of furnishing securities for settlement of the award which was confirmed by the decree of the High Court. In the alternative, the respondents' counsel submitted that, in case the Court decides to order security to be given in a form of bank guarantee, the same should be from a reputable bank in Tanzania preferably CRDB and NMB banks. To support his argument, he made reference the decisions of the Court in the New Forest Company Ltd v. Tinashe Bhunu [2013] TLR 562 and Stanbic Bank (T) Ltd v.

Sophia Majamba (Civil Application 81 of 2020) [2022] T7CA 401 (28 June 2022, TANZLII). In a brief rejoinder, M r. Ilungu emphasized that the case of CRDB Bank Ltd (supra) is distinguishable as in that case, the cash deposit was ordered because the bank wanted to guarantee itself, which is not the case in this application. He therefore prayed that the guarantee should be from a reputable bank instead of cash deposit because considering the colossal sum indicated in the decree, the circulation of money in the country will be affected. To support her stance, he relied in VASSO Agroventures Limited v. Mapato B.V (Civil Application No. 86/5 of 2024) [2024] TZCA 797 (22 August 2024, TANZLII). Having heard the parties' submissions, the issue is whether the applicant has complied with the second condition. It is noteworthy that in Mantrac Tanzania Limited v. Raymond Costa, Civil Application No. 11 of 2010 (unreported), the Court stated as follows regarding an undertaking to furnish security for due performance of a decree: "... To meet this condition, the iaw does not strictly demand that the said security must be given prior to the grant o f the stay order. To us, a firm undertaking by the appiicant to provide security might prove sufficient to move the Court, ail things

being equal, to grant stay order provided the Court sets a reasonable time limit within which the applicant should give the same ." In the circumstances, considering the averment in the applicant's affidavit and the response of the respondents, I hold that the applicant has met the second condition enumerated under rule 11 (5) (b) of the Rules. Indeed, it is trite law that in order for the Court to grant the application for stay of execution both conditions must be cumulatively fulfilled. For this position, see for instance the decision of the Court in David Mahende v. Salum Nassor Mattar and Another (Civil Application No. 160/01 of 2018) [2019] TZCA 71 (4 February 2019, TANZLII). In the final analysis, considering the foregoing deliberation, I have no hesitation to conclude that the applicant has cumulatively fulfilled the conditions stipulated under rule 11 (4), (7) and (5) (a) and (b) of the Rules. In the event, I grant the application. Consequently, I order that execution of a judgment and decree of the High Court in Labour Revision Mo. 53 of 2022 which confirmed the award of the CMA be stayed pending the hearing and determination of the intended appeal. The order is conditional upon the applicant depositing a bank guarantee of TZS.

686,374,785.00 as security for due performance of the decree within forty five (45) days from the date of delivery of this ruling. I further order that costs should abide the outcome of the appeal. DATED at DAR ES SALAAM this 23r d day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL The Ruling delivered this 24th day of December, 2024 in the presence of Mr. Lincoln Irungu, learned counsel for the applicant and Mr. Florence Tesha, learned counsel for the respondent, video conference is hereby certified as a true copy of the original.