Director Tanga Cement Company Limited vs Ephraim Joram (Civil Application No. 307/18 of 2024) [2024] TZCA 907 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM CIVIL APPLICATION NO. 307/18 OF 2024 DIRECTOR TANGA CEMENT COMPANY LIMITED ............... .............. APPLICANT VERSUS EPHRAIM JO RAM .................................... ............... .............. RESPONDENT (Application for stay of execution of the Award of the Commission for Mediation and Arbitration which was upheld by the Court of Appeal at Dar es Salaam) fHonorable Msuri-Arbitrator.) Dated the 5th day of October, 2017 in Labour Dispute No. CMA/DSM/MIS/42/13/742 RULING l j h& I9h September, 2024 MUG ASH A, J.A.: In this motion, the applicant herein is seeking to stay execution of the decree of the High Court of Tanzania pending the determination of an application for review of the decision of the Court in Civil Appeal No. 235 of 2020 which was determined on 4/3/2024 against the applicant. The application is by way of notice of motion predicated under Rules 4 (2) (a) and (b), 11(4), (4A), (5) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Underlying this application is an old labour dispute before which was lodged in 2009 before the Commission for Mediation and Arbitration (the CMA) by the respondent who was employed by the applicant as a loader i

from July 1985. In the said labour dispute, the respondent claimed to be paid salary arrears and payment of leave which was not taken from July, 1985. Upon arbitration, the CMA disposed the dispute in favour of the respondent and awarded him a total of TZS. 207,500,000.00, being salary arrears and payment of leave which was not taken, Aggrieved by the decision of the CMA the applicant appealed to the High Court which overturned the decision of the CMA and awarded the respondent compensation of twelve (12) months' salaries. Unamused the respondent successfully appealed to the Court which reversed the decision of the High Court and sustained the CMA's award. Subsequently, the applicant filed an application for review against the decision of the Court. As the matter was tabled for execution, upon being served with the respective notice, the applicant to filed the present application seeking to be granted stay of execution pending the determination of the application for review against the decision of the Court which had reversed the decision of the High Court. At the hearing the applicant was represented by William Mang'ena, learned counsel whereas the respondent had the services of Shepo Magirari, learned counsel. Before the commencement of the hearing, I invited parties to address the Court on the propriety or otherwise of the application and in

particular, if the Court is vested with requisite jurisdiction to grant stay orders after the Court has determined an appeal between the warring parties. Upon taking the floor, Mr. Mang'ena submitted that, although Rule 11 of the Rules prescribes that stay order can be sought pending the hearing of the appeal, the said provision does not embrace the circumstances surrounding the present application seeking stay orders pending the determination of an application for review. It is on this account he submitted that, in the absence of a specific provision, the notice of motion is predicated under Rule 4 (2) (a) and (b) of the Rules. To support his proposition, he cited the cases of MEKAFASON MAN DALI AND 8 OTHERS VS THE REGISTRED TRUSTEES OF THE ARCHDIOSCESE OF DAR-ES-SALAAM, Civil Application No 491/17 of 2019 (unreported) whereby the Court granted stay orders predicated under Rule 4 (2) of the Rules pending the hearing and determination of the revision application. He as well, cited the case of DR. LUIS B SHIJA VS KELLU KAMO LUCAS, Civil Application No. 209/14 of 2024 (unreported) whereby the Court granted stay of execution pending determination of an application for review. Relying on the cited cases, Mr. Mang'ena eventually submitted that, the present application predicated under Rule 4 (2) of the Rules is competent as the Court has jurisdiction to stay execution of the CMA's award pending the determination of review application. 3

On the other hand, Mr. Magirari opposed the application. He argued that, although Rule 4 (2) of the Rules is applicable on matters not specifically provided for under the Rules, it cannot be invoked in the present matter because having determined the appeal, the Court has no jurisdiction to stay its own decision pending determination of review. In this regard, he urged the Court to find the application not competent and proceed to strike it out. In a brief rejoinder, Mr. Mang'ena reiterated his earlier submission that the application is competent because what is sought to be stayed is the award of the CMA and not the decision of the Court. Having considered the submission of the learned counsel for either side, the issue for determination is whether the Court is mandated with jurisdiction to grant stay orders pending the determination of an application for review after having determined the decree appealed from. Before determining the said issue, it is pertinent to point out that an appeal before the Court does not operate as automatic stay of execution of the decree or order appealed from. Thus, it is incumbent on the part of the intending appellant to lodge a notice of motion seeking the indulgence of the Court to stay the decree of the High Court pending the determination of the appeal. The respective process is regulated by Rule 11 which stipulates as follows: 4

11.-(1) not applicable. (2) Subject to the provisions o f sub-ruie (1), the institution o f an appeal, shall not operate to suspend any sentence but the Court may in any criminal proceedings, where notice o f appeal has been given in accordance with rule 68, order that the appellant be released on bail or that the execution o f any warrant o f distress be suspended pending the determination o f the appeal. (3) In any civil proceedings, where a notice o f appeal has been lodged in accordance with rule 83, an appeal, shall not operate as a stay o f execution o f the decree or order appealed from nor shall execution o f a decree be stayed by reason only o f an appeal having been preferred from the decree or order; but the Court, may upon good cause shown, order stay o f execution o f such decree or order. (4) An application for stay o f execution shall be made within fourteen days o f service o f the notice o f 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. (4A) An application under sub-rule (4) shall be substantially in Form K as specified in the First Schedule to these Rules. 5

(5) No order for a stay o f execution shall be made under this ruie uniess the Court is satisfied that- (a) substantial loss may result in the party applying for a 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. (6) Notwithstanding anything contained under subruie (5) o f this ruie and ruie 60 (2) (b), a single Justice o f the Court may, for good cause, make an ex parte order for a stay o f execution pending hearing and determination o f the application. (7) An application for stay o f execution shall be accompanied by copies o f the following- (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. It is glaring under the cited rule that, the grant of stay order is for the purposes of preserving the rights of opposing parties before determining such rights on appeal. This was emphasized by the Court of Appeal in Kenya which had the opportunity to address its mind on the 6

purpose of seeking stay of execution in the case of RWW VS EKW [2009] Eklr, having stated thus: '"'The purpose o f an application for stay o f execution is to preserve the subject matter in dispute so that the rights o f the appeiiant who is exercising undoubted right o f appeai if successful is not rendered nugatory", [Emphasis supplied] Similarly, in Uganda in the case of ATTORNEY GENERAL VS WALUGEMBE DANIEL COURT OF APPEAL Civil Application No. 390 of 2018, it was held thus: "An application for stay o f execution is without doubt premised on threat o f execution o f an order or decree appealed from. Therefore, an application such as this seeking order for stay o f execution must first satisfy the Court that indeed the orders or decree appealed from is capable o f being stayed and there is an inherent danger. "[Emphasis supplied] I fully subscribe to stated position which stands out as the position of the law on the manner of dealing with applications seeking to stay execution of decrees appealed from. See: ARAB CONTRACTORS (OSMAN) AND ANOTHER VS ACCLAIM CONSTRUCTIONS SUPPLIES LTD, Civil Application No. 261/16 of 2023 (unreported), 7

Yet, justice C.K Thakker, (Takwani) commenting on Order 41 rule 5 of the Indian Code of Civil Procedure, 1908, which mandates an appellate court to stay execution of a decree in his book Civil Procedure, 6th Edition, 2011 Reprint, Eastern Book states as follows: "The object underlying Rule 5 is to safeguard the interests o f both, the judgment holder and judgment debtor. It is the right o f decree holder to reap the fruits o f his decree. Similarly, it is the right o f the judgment debtor not merely to get barren success in case his appeal is aiiowed by the appeiiate court. This rule thus strikes a just and reasonable bafance between these opposing rights In the light of the bolded expression, the objective of granting stay order is to strike a just and reasonable balance between the warring parties in order not to render an appeal nugatory. In the premises, a follow up question is whether stay orders may be granted where there is no pending appeal? The rationale of the above learned author's commentary was considered by the Court in the case of MEKAFASON MAN DALI AND 8 OTHERS VS THE REGISTERED TRUSTEES OF THE ARCHDIOSCESE OF DAR-ES-SALAAM (supra), in which the applicant was seeking stay of execution pending the determination of the application for revision of the decision of the High Court. The Court observed as follows: 8

"Given the rationale behind a stay order as stated in the passage quoted above, to which we subscribe, whereby in a particular circumstance o f this case is to safeguard thejudgment debtor from ending up with barren success in the event he succeeds in his appeal. In our considered view, the same principle should apply to the judgment debtor who challenges a decision by way o f an application for revision...that an order staying execution o f a decree pending determination o f an application for revision may be issued under Rule 4 (2) (a) and (b) o f the Rules1 \ [Emphasis supplied] Thus, since stay order pending determination is not tenable under Rule 11 of the Rules, the Court invoked Rule 4 (2) of the Rules to grant stay of execution of the decree of the High Court pending the determination of the revision application. See also: STEPHEN MAFIMBO MADWARY VS UDUGU HAMIDU MGENI AND ANOTHER, Civil Application No. 71 of 2011 and MRS VIOLET DEELIP PANDYA JAYPRAKASH INDRAJAJ JANI, Civil Application No. No 17 of 2006 where stay of execution was granted pending the determination of applications for revision. What is discerned from the circumstances surrounding the grant of stay orders above, the major consideration was to strike a just and reasonable balance between the opposing rights because g

the Court had not determined the decisions of the High Court which were challenged by way of revision. In the premises, since it is settled that stay of execution may be granted pending the determination of the challenged decision of the lower court on appeal or revision, can this extend to a situation where there is a pending review against the decision of the Court. This revers us back to the issue raised earlier on and addressed by the learned counsel that is, whether after the Court has determined the decree appealed from it remains to be vested with jurisdiction to grant stay orders pending the determination of an application for review. It is crucial to restate that, jurisdiction of courts is a creature of statute and not the likes or dislikes of the parties and as such, jurisdiction cannot be assumed. This has been emphasized in Halsbury Laws of England, Vol. 10 paragraph 314 whereby the term 'jurisdiction' is defined as follows: "...the authority which a court has to 'decide matters that are litigated before it or to take cognizance o f matters prescribed on a formal way for its decision. The limits o f this authority are imposed by statute; charter or commission under which the court is constituted, and may be extended or restrained by similar means. A limitation may be either as to the 10

kind and nature o f claim, or as to the area which jurisdiction extended or it may partake o f both these characteristics ", In our jurisdiction, according to Article 117 (1), (3) and (4) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution) and section 4 (1), (2) (3) and (4) of the Appellate Jurisdiction Act [CAP 141 R.E 2019] (the JA), the Court derives appellate as well as revisional jurisdiction on matters arising from the decisions of the High Court and Magistrates with Extended Jurisdiction. Moreover, through case law and as later mainstreamed in legislation that is, the AJA, the Court is also vested with jurisdiction to review its own decisions. The operationalization of the Appellate Jurisdiction is regulated by the Court of Appeal Rules, 2009 which entails the practice and procedure of the Court in relation to appeals, revisions and review is regulated under Rule 4(1) of the Rules and under sub rule (2) the Court is vested with inherent powers as follows: "4.-(l) The practice and procedure o f the court in connection with appeals, intended appeals and revisions from the High court in relation to review and reference; and the practice and procedure o f the High court and tribunals in connection with appeals o f the court shall be as prescribed in these rules or any other written iaw/ but the court may at any time, direct a departure from these Rules in any case in which this is required in the interests o fjustice l i

(2) Where it is necessary to make an order for the purposes o f - (a) Dealing with any matter for which no provision is made by these rules or any other written laws (b) Better meeting the ends o fjustice; or (c) Preventing an abuse o f the process o f the court, The court may on application or its own motion, give directions as to the procedure to be adopted or make any other order which it considers necessary." As earlier stated, the processes and procedures relating to stay of execution of the decree appealed from are prescribed under Rule 11 of the Rules and the essence of the stay orders being geared at striking a just and reasonable balance before the determination of the challenged decision of the lower Court, the Court has pronounced itself that stay orders can be granted pending the determination of an application for revision. See: MEKAFASON MAN DALI AND 8 OTHERS VS THE REGISTERED TRUSTEES OF THE ARCHDIOSCESE OF DAR-ES-SALAAM (supra). Indeed, what prompted the Court to grant the stay order was the fact that, it was yet to make any determination on the decision of the lower court which was challenged by way of revision. Thus, since revision is not similar with review, the case of MEKAFASON MANDALI AND 8 OTHERS cited by the applicant's counsel is distinguishable and it cannot save the plight of the applicant herein. 12

Next for consideration is whether the present application is tenable. Parties locked horns on the matter. Whereas the respondent's counsel argued that, the Court has no jurisdiction to stay its own decision after disposing of an appeal, Mr. Mangena suggested that the Court has jurisdiction to entertain the application in the light of what was decided by the Single Justice in the case DR. LUIS B SHIJA VS KELLU KAMO LUCAS (supra) whereby stay order was granted pending the determination of the application for review against the decision of the Court. I have carefully read the said decision and admittedly, the Single Justice granted stay order pending determination of review. However, contrary to Mr. Mang'ena's submission, the Single Justice did not decide whether or not the Court had jurisdiction to entertain an application seeking to stay orders pending review after the appeal has already been determined. Given the circumstances, it is settled law that, where a decision of the Court has not considered and determined a particular issue in a previous decision, it is not barred from making a determination in the subsequent application or appeal. This was observed by the Court in the case of TAMBUENI ABDALLAH AND 89 OTHERS VS NATIONAL SOCIAL SECURITY FUND Civil Application No. 160 of 2008 and INDEPENDENT TELEVISION LIMITED VS TANZANIA COMMUNICATION REGULATORY AUTHORITY, Civil Application No. 79B/20 OF 2018 (both unreported). In the latter case, the Court which had 13

earlier on entertained a revision application from the Fair Competition Tribunal (the FCT) was later called upon to determine if it had jurisdiction to entertain revision application from the Fair Competition Tribunal. The Court thus stated: "With respect, we find that the submission o f Mr. Ngaio that this Court has jurisdiction to revise proceedings and the decision o f the Tribunal by relying on our previous decision in Mabibo Beer Wines and Spirits LTD VS Lucas Mai/ya aka Baraka Stores and Commissioner for Customs Tanzania Revenue Authority, (supra) to have no justification. We have travelled through the decision o f this Court in that case on matters emanating from the Tribunal was raised. So, in that case, this Court did not have the opportunity to consider and decide whether or not it has jurisdiction to entertain an appeal or application for revision from the Tribunal. Therefore, this Court now is going to determine that issue as it was done in TAMBUENIABDALLAH AND 89 OTHERS VS NA TIONAL SOCIAL SECURITY FUND..." [ Emphasis supplied]. Therefore, given that in the case of DR. LUIS B SHIJA VS KELLU KAMO LUCAS (supra) the Single Justice did not determine if the Court is vested with jurisdiction to grant stay order against its own decision, I shall determine that issue now. In my considered view, granting stay orders 14

pending the determination of review is tantamount to staying the very decision of the Court which leaves a lot to be desired. I say so because granting stay orders after the Court has determined an order or decree appealed from is a situation which was neither envisaged under Article 117 of the Constitution or section 4 of the AJA as operationalized under the Court of Appeal Rules. In a nutshell, an application for stay order is tenable where the Court is yet to determine the challenged decision of the lower court and not otherwise. Therefore, given that the purpose of granting stay order is to preserve the subject matter in dispute before the Court determines an appeal or revision, the Court in exercise of the powers of dispensing justice is enjoined to observe the provisions of the Constitution and those of the laws of the land in terms of Article 107B of the Constitution and not otherwise. In that regard, since the Court is not clothed with jurisdiction to grant stay orders against its own decision, the present motion brought under Rules 4 (2) (a) and (b) of the Rules cannot be salvaged in the guise of clever crafting. I am fortified in that regard because the Court where necessary, may sparingly invoke the said Rule for a threefold purpose namely: one, dealing with any matter for which no specific provision is made under the Rules or any other written law; two, better meeting the ends of justice and three, preventing an abuse of the process of the Court. The present application does not fall under any of the three categories 15

because the Court has already determined the appeal against the warring parties. All said and done, on account of lacking jurisdiction I do not have the mandate to grant stay order pending review against the decision of the Court in Civil Appeal No 235 of 2020 which was determined on 4/3/2024 against the applicant. This renders the purported application not competent and it is hereby struck out with costs. It is so ordered. DATED at DAR-ES-SALAAM this 17th day of September, 2024. The Ruling delivered this 19th day of September, 2024 in the presence of Mr. William Mang'ena, learned counsel for the applicant, and Mr. Shepo Magirari, learned counsel for the respondent, is hereby certified as a true copy of the original. S. E. A. MUGASHA JUSTICE OF APPEAL D. R. LYIMO i J J d e p u t y r e g i s t r a r &/J COURT OF APPEAL 16