PM Group (T) Limited vs Zongo Athumani Zongo (Civil Application No. 166/18 of 2024) [2024] TZCA 908 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM CIVIL APPLICATION NO. 166/18 OF 2024 PM GROUP (T) LIMITED ......................................................................... APPLICANT VERSUS ZONGO ATHUMANI ZO N GO ......................... ......................................RESPONDENT (An application for stay of execution of the Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mlvambina, 3.) Dated the 3r dday of November, 2023 in Revision No. 164 of 2023 RULING 11th & 19th September, 2024 KITUSI. 3.A.: The applicant obtained an ex-parte order of stay of execution of the decree that had been issued in favour of the respondent. He now seeks for the same order inter-parte, that is, after hearing the respondent. At the hearing, Messrs. Nickson Ludovick and Emmanuel Kessy, learned advocates appeared to represent the applicant and the respondent, respectively. The application is made under rule 11 citing the relevant sub rules as well as rule 48(2) of the Court of Appeal Rules, 2009 (the Rules). There is no affidavit in reply by the respondent to counter the averments made by the applicant in an affidavit that was taken by Mr. Nickson Ludovick, the i

applicant's company secretary who, as already intimated, also appeared on the applicant's behalf to argue this application. The thrust and background of the application is that the applicant was aggrieved by the decision of the CMA in Labour Dispute No. CMA/DSM/KIN/578/19/201 dated 25/11/2020 and attempted to have it revised by the High Court, but was not successful. Thereafter the respondent commenced execution proceedings, only to learn later that the names of the applicant had been wrongly cited. He applied for rectification of the names so as to conform with the particulars of the account holder at the bank where a garnishee order had been issued. On 12th June, 2023 the CMA granted the application and corrected the names, a decision that aggrieved the applicant who applied for revision tothe High Court in Application No. 164 of 2023. The High Court, Labour Division dismissed the application. The notice of motion intimates the applicant's intention to appeal against the decisions of the CMA and that of the High Court. There is no dispute regarding the applicant's compliance with rule 11 of the Rules as it has lodged a notice of appeal and filed this application within the time prescribed by rule 11 (4) of the Rules. However, before we went any further, Mr. Kessy expressed his doubt regarding the competence of this application on two aspects. The first is that 2

this Court has no jurisdiction to entertain an application for stay of a decree of a court or tribunal below the High Court, so it cannot stay execution of the CMA. The second is that the ruling and order of the High Court dismissing Application No. 164 of 2023 is not executable therefore not subject of stay. In view of these legal issues, I called upon counsel to address me on both the competence of the application and the merit thereof. Mr. Ludovick submitted that the application is competent and cited the case of UAK Insurance (Tanzania) Ltd v. Yuda Thomas Shayo & 5 Others, Civil Application No. 611/18 of 2022 in which the Court held that such application may be entertained. He went on to submit in relation to the second limb by pointing out that the order of the CMA is executable and the fact that there is a garnishee order nisi in favour of the respondent, demonstrates it. On the other hand, Mr. Kessy submitted that there are several cases to support the position that only the decree of the High Court subject of the intended appeal may be stayed. He cited one of the the cases as being; Micah Elifuraha Mrindoko t/a New BP Kilwa Road Service Station v. Bank of Africa (T) Ltd Civil Application No. 211/16 of 2022, [2024] TZCA 43 (15 February 2024. It is true as submitted by Mr. Ludovick that in some instances, we have entertained applications for stay of execution of decrees issued by courts or 3

tribunals subordinate to the High Court. However, consideration of that principle one way or the other, depends on the applicant's fulfillment of two of the basic requirements under rule 11 of the Rules. The first is that the applicant must have lodged a notice of appeal intending to appeal against the decree subject of the would-be appeal, and the second is that the decree must be executable. This is, basically the thrust of Mr. Kessy's second point of concern. My reading of the notice of appeal shows that it intends to appeal against the decision of the High Court (Mlyambina, J) with no mention of the award of the CMA. With respect, it is a misconception on the part of the applicant, to include in the notice of motion, the award of the CMA which is not subject of the intended appeal. It would have been different had the High Court affirmed the award of the CMA in which case its order would be appealable and executable. Or, put it differently, the decree targeted in the intended execution is not subject of the intended appeal. Conversely, the intended appeal is against an order which is not executable, anyway because there is no way a person can execute an order refusing to correct names. This renders irrelevant, the whole argument addressing the issue whether we can stay execution of decrees and orders issued by subordinate courts. I need not, therefore, pronounce myself on that, save for academic purpose. 4

Therefore, I uphold Mr. Kessy on the argument that this application is incompetent as it purports to obtain an order of stay of execution of the award that is not in the notice of the intended appeal let alone the fact that it has never been challenged before the High Court. The purported appeal against the CMA award would therefore be a first appeal to the Court, straight from that Tribunal, which is against the scheme of section 5 of the Appellate Jurisdiction Act, Cap 141. For the sake of exhaustion, the order of the High Court against which it is intended to appeal as appearing on the notice of motion, is not executable, as shown above. In the end I strike out this application for being incompetent. As this is a matter arising from a labour dispute, I order no costs. DATED at DAR-ES-SALAAM this 17th day of September, 2024. This Ruling delivered on 19th day of September, 2024 in the presence of the Respondent in person and in the absence of the Applicant, is hereby certified as a true copy of original. I. P. KITUSI JUSTICE OF APPEAL