Chitegetse Monica Migembe vs Akiba Commercial Bank Plc (Civil Application No. 74/18 of 2024) [2024] TZCA 947 (27 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 74/18 OF 2024 CHITEGETSE MONICA MIGEMBE....................................................APPLICANT VERSUS AKIBA COMMERCIAL BANK PLC ................................................. RESPONDENT [Application for stay of execution of the Judgment and Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam] dated the 18thday of August, 2023 in Revision Application No. 132 of 2023 RULING 13th & 27th September, 2024 MWANDAMBO. J.A.: Rule 11 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules), vests power in the Court to order stay of execution of a decree or order appealed from pending determination of appeal. The decree in the instant application emanates from Application For Revision No. 132 of 2023 before the High Court (Labour Division) at Dar es Salaam whereby, the applicant Chitegetse Monica Migembe unsuccessfully challenged the decision of the Commission for Mediation and Arbitration (the CMA) which had dismissed her complaint on unfair termination of employment with the respondent. It thus dismissed the application for revision.

Aggrieved, the applicant lodged a notice of appeal from that decision and subsequently instituted Civil Appeal No. 66 of 2024 now pending before the Court. Pending determination of her appeal, the applicant has lodged the instant application following the respondent's notice through SUMA JKT Auction Mart Ltd. demanding repayment of TZS 18,443,807.80 outstanding loan due to the respondent. The notice of motion seeks to stay execution of the decree of the High Court delivered on 18 August 2024 on the grounds, not least that the applicant stands to suffer substantial loss if the order is not made considering that the respondent holds in its possession a title deed to her risking her property risking its to sale. The respondent resists the application essentially on the ground that the auctioneer was instructed to auction the applicant's property upon her failure to repay the outstanding staff loan amounting to TZS 18,138,188.80. It maintains that the applicant has not made out a case to warrant the order sought. The applicant appeared in person fending for herself at the hearing of the application. Ms. Linda Bosco, learned advocate represented the

respondent resisting the application. The applicant had very tittle to add to the contents of her notice of motion and the affidavit. She urged me to grant the application by staying the execution of the decree of the High Court challenged in the appeal before the Court. For her part, Ms. Bosco resisted the application on the soie ground that the decree, subject of the application, is not executable. She urged me to dismiss the application mainly because there is no nexus between the decree and the notice of sale the applicant's property issued by the auctioneer warranting the Court's exercise of its discretion under rule 11 (3) of the Rules. Alternatively, the learned advocate had no objection to the application subject to the applicant furnishing security by way of a banker's guarantee. I wish to begin with a remark that the Court's power to stay is exercisable in accordance with the conditions set out under rule 11 (3), (4) (5) and (7) of the Rules. In other words, lodging a notice of appeal or the appeal itself is one thing and meeting the conditions for its grant is a different thing altogether. I appreciate that the applicant has made averments to the effect that the stands to suffer substantial loss if the order is not made. I also appreciate that the applicant has made an

undertaking to furnish security for the due performance of the decree which, on the face of it, shows that she has met the conditions set out under rule 11 (5) of the Rules for the grant of the order sought. Nevertheless, before getting there, I have to address first the issue raised by Ms. Bosco that is; whether there any decree capable of being executed in the first place. Put it differently, did the High Court make any decree capable of being executed on the basis of which the Court could be asked to stay execution? My starting point will be rule 11 (3) of the Rules which vests power in the Court to stay execution of a decree or order appealed from where a notice of appeal is lodged in accordance with rule 83 of the Rules. Plainly, the rule 11 (3) of the Rules targets stay of execution of a decree or order appealed from, subject of the execution sought to be stayed. Indeed, that explains the rationale behind rule 11 (4) of the Rules which prescribes 14 days period for making an application for stay of execution reckoned from the date on which a notice of execution is served on the judgment debtor or from the date he is otherwise made aware of the existence of an application for execution. That means, what triggers an application for stay of execution of a decree or order appealed from is a

notice of application for execution or knowledge of its existence, It is for this reason, one of the key documents to be accompanied to the application is a copy of notice of the intended execution per rule 11 (7) (d) of the Rules. As mentioned earlier, the applicant lost in her application for revision before the High Court with the effect that, the position between the parties was that the respondent had nothing to execute from that decision neither that of the CMA. It follows thus that, the respondent could not have made any application for execution in the absence of any decree capable of being executed which could trigger in an application for stay. On the contrary, it is glaring that, the applicant's application was triggered by a notice of sale by the auctioneer instructed by the respondent exercising her right of sale of a property offered as security for a staff loan extended to the applicant. There can be no doubt that, notice was not issued by any executing officer in terms of rule 11 (4) of the Rules in any decree of the High Court appealed from in the appeal pending before the Court. Neither is that notice can be said to be notice of intended execution for the purpose of rule 11 (7) (d) of the Rules. 5

The cumulative effect of the foregoing is that, the Court has not been properly moved to exercise its discretion under rule 11 (3) of the Rules because there is neither a decree capable of being executed nor is there any notice of execution or an intended one issued by the executing officer warranting the lodging of the application for stay of execution. Luckily, in Athanas Albert & 4 Others v. Tumaini University College, Iringa [2001] T.L.R. 63 the Court pronounced itself for the principle that an order for stay of execution cannot be made in the absence of a court order commanding or directing the applicant to do something that affects him. Truly, the auctioneer's notice to the applicant commands her to make good the default lest her property is sold. That notice may, on the face of it be prejudicial to the applicant. But her remedy against it does not lie in applying for stay of execution because the notice is not a notice of execution of decree appealed from to warrant exercise of power under rule 11 (3) of the Rules. The fact that the applicant appears to have met the conditions under rule 11 (5) of the Rules does not automatically guarantee her with the order sought. There must be an executable decree in the first place followed by a notice of execution or knowledge of its existence before an application

can be made to the Court. The applicant has not satisfied the Court both. In the event, I endorse the submission by Ms. Bosco and hold that the application is misconceived since there is no decree capable of being executed. The application is accordingly dismissed. It is so ordered. DATED at DAR ES SALAAM this 25th day of September, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL The Ruling delivered this 27th day of September, 2024 in the presence of the applicant who appeared in person and Mr. Gasper Nyika holding brief for Ms. Linda Bosco, learned counsel for the respondent; is hereby certified as a true copy of the original. y — As R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL