Ledger Hotels & Resort Plaza Bahari Beach vs Zebediya Chikoya (Civil Application No. 516/18 of 2023) [2024] TZCA 892 (13 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 516/18 OF 2023 LEDGER HOTELS & RESORT PLAZA BAHARI BEACH ................APPLICANT VERSUS ZEBEDIYA CHIKOYA ............................................. ....................RESPONDENT (Application for Stay of Execution OF THE Commission for Mediation and Arbitration Award (CMA/DSM/KIN/741/20/393) of the High Court of Tanzania, at Dar es Salaam) (Mpula, Arbitrator) dated the 01st day of July, 2022 in Execution number 306 of 2022 RULING 9th & 13thSeptember, 2024 LILA.: The applicant has moved the Court under Rules 11(3), 11(4A), 11(5) (a-b), 11(6), ll(7)(a)(b)(c)(d) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to issue an order staying execution of the Commission for Mediation and Arbitration (the CMA) award pending in the High Court (Labour Division) at Dar es Salaam in Execution No. 306 of 2022. The application is supported by an affidavit affirmed by Wessam Najem, the General Manager of the applicant company. It is resisted by an affidavit in reply sworn by Zebediya W. Chikoya, the respondent. i

It is common knowledge that the respondent is a successful party in Labour Dispute No. CMA/DSM/KIN/741/20/393 being awarded TZS 168,550,920.00. Aggrieved, the applicant unsuccessfully applied for revision before the High Court (Labour Division) in Revision No. 270 of 2022 as the same was struck out for being incompetent on 27/4/2023, Undeterred, the applicant preferred an application for extension of time in Misc. Labour Application No. 119 of 2023 which was dismissed on 13/6/2023. The dismissal order aggrieved the applicant and, in seeking to impugn the ruling, lodged a notice of appeal to the Court on 28/6/2023. While these efforts were being done, the applicant, on 4/7/2023, was served with a summons to appear on 11/7/2023 before the High Court for hearing of an application for execution, hence the present application seeking for a stay order. Copies of the notice of appeal, application for execution and the summons for hearing of the application for execution are annexed to the affidavit supporting the application. It also appears, from the parties' affidavit and reply affidavit, that the parties are not in dispute as to whether or not the application should be granted, but are in dispute over the quantum of money to be deposited as security. While the applicant simply expressed her commitment to 2

deposit a security as should be ordered by the Court, the respondent proposed the security to be not less than % of the decreed amount. Before me for the hearing of the application, were Mr. Gilbert Mushi and Mr. Andrew Chima, both learned advocates, representing the applicant and the respondent, respectively. Exercising his right to be heard first, Mr. Mushi was brief and straight that the applicant is ready to deposit a Bank Guarantee of the value not exceeding Fifty Million Shillings (say TZS 50,000,000.00) and the same be furnished within four (4) months considering the financial status of the applicant whose turn overs in her business has of recent shaken. Upon such plea, Mr. Chima had no objection to the application being granted on condition that such a guarantee be accepted by the Court. Like the parties, I have no reason not to accede to the prayer by the applicant as all the requirements for the Court's exercise of discretion to grant an application of this nature as stipulated under Rule 11 (3), (4), (5) and (7) of the Rules have been met by the applicant. And, as the parties are in agreement that a deposit in Court of a Bank Guarantee worth shillings Fifty Million as security for the due performance of the decree is sufficient, I grant the application on such terms.

For certainty, I order that the application is hereby granted and execution of the CMA award in Labour Dispute No. CMA/DSM/KIN/741/20/393 dated 1/7/2022 now pending in the High Court is hereby stayed on condition that the applicant has to furnish with the Court a Bank Guarantee worth TZS 50,000,000.00 within one hundred and twenty days (say 120 days) of the delivery of this order. I make no order for costs. It is so ordered DATED at DAR ES SALAAM this 10th day of September, 2024. S. A. LILA JUSTICE OF APPEAL The Ruling delivered this 13th day of September, 2024 in the presence of Gilbert Mushi, learned counsel for the Applicant and also holding brief for the Mr. Andrew Chima, learned counsel for the Respondent is hereby certified as a true copy of the original. 4