M/S Sahara Media Group Limited vs Joyce Cyril Mwacha (Civil Application No. 959 of 2024) [2024] TZCA 1099 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 959 OF 2024 M/S SAHARA MEDIA GROUP LIMITED......................................APPLICANT VERSUS JOYCE CYRIL MWACHA ................. ...................... ............... RESPONDENT (Application for an order of stay of execution of the execution filed in the High Court of Tanzania (Labour Division) at Dar es Salaam) (Kasian, Deputy Registrar) dated the 9thAugust, 2023 in Execution Number 286 OF 2023 RULING 28th October & 12th November, 2024 FELESHI. 3.A.: Messrs. Khalfan Msumi and Odhiambo Kobas, learned counsel appeared representing the applicant and respondent respectively, and agreed to first dispose the preliminary objection raised by the respondent impugning the competence of the applicant's application for stay of execution. Before recapitulating the counsel's submissions, I find it important to provide the antecedent facts leading to this application. That, on 13th

February, 2017 the Commission for Mediation and Arbitration (CMA) granted an Award of Tshs.39,653,132/= to the respondent being: one month salary in lieu of notice; one month's salary as annual leave; twelve month's salary as compensation for unfair termination; and severance allowances for five years. Aggrieved, the respondent preferred a High Court Revision No.229 of 2019 which was however, dismissed on 7th August, 2020 for want of merit. Further aggrieved, she filed a Notice of Appeal to this Court on 14th August,2020 as well as a Civil Application No.631/18 of 2023 for stay of execution premised under rules 11(3), 11(4), 11(5) (a), (b), 11(6), 11(7) (b), (c) and (d) and rule 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). On 31s t August, 2023 the applicant was granted an ex-parte order under rule 11(6) of the Rules to stay the execution of the High Court Decree in the aforementioned revisional proceedings pending hearing of the application inter-parties. The application was called on for the inter parties hearing on 17th September, 2024. On 20th September, 2024 the Court upheld the respondent's preliminary point of objection and consequently struck out the application on the ground that, the decree intended to be stayed was incapable of being executed and therefore incapable of being stayed.

Based on the foregoing decision, the instant application was filed on 21s t October, 2024 under same rules but, it sought for an order staying execution of the Execution Number 286 of 2023 issued on 9th August,2023. The learned counsel argued three points of preliminary objection raised by the respondent as follows:

1. That, the application is time barred;
2. That the application is incompetent for want o f CMA award; and
3. That the application is an abuse o f the Court process. Submitting in support of the preliminary objection, Mr. Kobas argued all limbs in seriatim. In the first limb, he contended that, according to rule 11(4) of the Rules, this application is time barred because upon being served with a notice of execution of Execution No. 286 of 2023 on 17th August, 2023 the applicant was statutorily required to file her application within fourteen days of service of that notice. He said, the applicant duly endorsed to have been served with the said notice as is vividly exhibited by Annexture SMG-6 of Paragraph 9 of the applicant's founding affidavit. Therefore, filing the instant application on 21s t October, 2024 was far

beyond the 14 days and this Court is implored to dismiss it for being time barred. With regards to the 2n d limb, M r. Kobas vehemently argued that the application is incompetent for failure to annex the CMA Award which is the subject matter of the impugned execution. He argued that, in view of what transpired in the applicant's application in Civil Application No.631 of 2023 which was struck out for appending non-executable decree that, 7 thus uphold CMA's award and dismiss the application for want o f merit" this time the applicant was expected to move the court to stay a decree which is capable of being executed. On the 3r d limb, M r. Kobas submitted that, this being the third applicant's application filed on the same matter amounts to an abuse of the Court process because, it is preferred on sheer violation of the Rules. He said, whereas her first application, Civil Application No. 430/18 of 2020 was struck out for being time barred, her second application, Civil Application No. 631/18 of 2023 was as well struck out on 20th September, 2024 for being preferred against an incompetent decree. To him, the applications have cumulative effect of buying time and abusing the Court process. He therefore invited the Court to uphold the 3r d limb of preliminary objection as well.

In response, Mr. Msumi opposed the preliminary objection. On the 1s t limb of the objection, he argued that it is true that they were served with a notice of execution of Execution No. 286 of 2023 on 17th August, 2023. They managed to file Civil Application No. 631/18 of 2023 on 25th August, 2023 well within fourteen days and they were granted with an ex- parte order of stay of execution. However, the application was later struck out on 20th September, 2024 the decision that triggered the filing of this application on 21s t October,2024 within the purview of rule 11(4) of the Rules. On the 2n d limb of the objection, Mr. Msumi was brief and straight that, the applicant did not attach the CMA Award because it is not one of the court documents prescribed by rule 11(7) of the Rules. He thus implored the Court to overrule the 2n d point of objection. Regarding the 3r d limb of the objection, Mr. Msumi submitted that, the point of objection is totally misconceived because, the intended appeal has not been heard by the Court. That, what they have done is to rectify the defects obtained in the struck-out applications. He thus urged the Court to overrule the 3rd limb of objection. In his rejoinder submission, Mr. Kobas basically reiterated his submission in chief and stressed that, based on the applicant's

unequivocal admission that she was served with the notice of execution on 17th August,2023 but filed this application on 21s t October, 2024, the Court should uphold the respondents preliminary objection with costs. I have profoundly considered the preliminary objection, the arguments by the counsel for the parties and the law. I will begin with the 1s t limb of preliminary objection on whether the application is time barred. This is because, unlike the 3r d limb of preliminary objection, it directly touches a pure point of law on the jurisdiction of the Court, And this, if found in the affirmative, may dispose the matter. See for instance, decisions in the cases of Mukisa Biscuit Manufacturing Co, Ltd. v. Western Limited (1969) EA 697 and Karata Ernest and Others vs Attorney General, Civil Revision No. 10 of 2010 (unreported). In the later case, this Court underscored that: "At the outset we showed that it is trite law that a point o f preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it It only "consists o f a point o f law which has been pleaded, or which arises by dear implication out o f the pleadings." Obvious examples include: objection to the jurisdiction of the court; a plea of limitation; ... where an appeal is lodged when there is no right o f appeal;

where an appeal is instituted without a valid notice o f appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy o f the decree appealed from; etc . AH these are dear pure points o f law." [Emphasis added]. In view of the foregoing submissions, both counsel are in agreement that, a notice of execution of Execution No. 286 of 2023 issued by the Deputy Registrar on 9th August,2023 was well received and endorsed by the applicant on 17th August, 2023. That means, per the dictates of rule 11(4) of the Rules, as correctly argued by Mr. Kobas, the applicant was supposed to act on it within fourteen days of service. Rule 11(4) of the Rules states: "(4) An application for stay o f execution shall be made within fourteen days of service o f the notice of execution on the applicant by the executing officer or from the date he is otherwise made aware o f the existence o f an application for execution"[Emphasis added] Therefore, according to rule 11(4) of the Rules and the notice of execution of Execution No. 286 of 2023, which was duly received and endorsed by the applicant on 17thAugust, 2023, by lodging her application

No. 631/18 of 2023 on 25th August, 2023, the applicant was well within time as she had time to do so up to 31s t August, 2023. However, as her application was later on struck out by the Court on 20th September, 2024 nothing was sustained behind under that rule. The record I have endeavoured to examine has clearly revealed to me that, the struck-out applications: Civil Application No. 430/18 of 2020, for being time barred; Civil Application No. 631/18 of 2023, for appending non-executable decree of the High Court; and the instant one, Civil Application No. 959 of 2024 which was lodged on 21s t October, 2024 are distinct. Besides, it is apparent to me that, the last two applications ought to have been preceded over by time extended to authorize their lodgments. In view of the foregoing, I find Mr. Msumi's casual submission that this application is still within time so wanting. He ought to have known that the striking out of Civil Application No. 631/18 of 2023 on 25th August, 2023 did not have any saving order meant to sustain this application or a court leave that the applicant would file a fresh application based on same notice of execution served to her on 17th August,2023. In the case of Amos Fulgence Karungul Vs Kagera Co-Operative Union (1990)

Ltd, (Civil Application No. 435/04 of 2017) [2017] TZCA 144 (6 December 2017) this Court underscored the following: "We are thus in agreement with Mr. Kabunga that, since the struck-out revision application was no longer in existence and as the applicant was still desirous of pursuing his cause, he was obliged to file this application not beyond the prescribed limitation period ... The applicant's argument that the extension order extends to the present appiication is farfetched as it is tantamount to resurrecting non existent matters which have no bearing on the timeiiness or otherwise o f the current appiication. We say so because the present application is new bearing unique number quite distinct from the struck-out application and the order giving extension.... Therefore, before filing this appiication the appiicant must have sought and obtained extension o f time." [Emphasis added] Since it is clear with me that, rule 11(4) of the Rules mandatorily provides time limitation within which to lodge application for stay of execution a statutory prerequisite considered cumulatively with other conditions provided under rule 11(3), ll(5)(a)&(b), 11(6) and 11(7) of

the Rules, I am not inclined to M r. Msumi's argument that filing this application by the applicant on 25th October, 2024 that is, over 25 months after being served with the notice of Execution No. 286 of 2023 on 17th August, 2023, was well within time. To me, before filing this application the applicant ought to have sought and obtained extension of time. As that was not done, the application is incompetent for being time barred. In the end, I am inclined to sustain the 1s t limb of preliminary objection, and the application is struck out with costs. DATED at DAR ES SALAAM this 12th day of November, 2024. The Ruling delivered this 14thday of November, 2024 in the presence of M r. Odhiambo Kobas, learned counsel for the Respondent and in the E. M. FELESHI JUSTICE OF APPEAL nt, is hereby certified as a true copy of the original.