BEVCO Limited vs Melanie Philippe (Civil Application No. 216/18 of 2023) [2024] TZCA 841 (30 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 216/18 OF 2023 BEVCO LIMITED............................................................................. APPLICANT VERSUS MELANIE PHILIPPE.................................................................. RESPONDENT (Application for an order of stay of execution of a decree of the High Court of Tanzania at Dar es Salaam) fMteule. J.> dated the 21st day of March, 2023 in Labour Revision No. 366 of 2022 RULING 21st & 30th August, 2024 MGONYA. J.A.: Resulting from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam, in Labour Revision No. 366 of 2022, (Mteule J.) dated 21st March 2023, the applicant herein, Bevco Limited, by way of notice of motion filed under rule 11(3), 11(4), 11(5) (a) & (b) 11(6), 11(7) (a), (b)(c) & (d) and rule 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) moved this Court to issue an order for stay of execution. It is based on the following grounds:

1. The 1s t Applicant will suffer irreparable loss if the Respondent executes the said decree which will render the appeal process commenced by the applicant nugatory; i

2. In the event the applicant's appeal fails, the applicant is able to honour the Judgment and Decree without any difficulty;

3. The balance of convenience dictates that the execution be stayed; and

4. The that the applicant is ready and willing to provide security for the due performance of the Judgment and Decree. The notice of motion is supported by an affidavit duty sworn by Nicole Verjus, the Chief Executive Officer (CEO) of the applicant, who is fully aware and conversant with the facts of the matter subject to the application at hand. At the hearing of this application, Mr. Joseph Nuwamanya, learned counsel appeared for the applicant while Mr. Peter Ngowi, learned counsel represented the respondent herein. When invited to submit in support of the application, Mr. Nuwamanya adopted the contents of the affidavit and went on to state that, this application was made without undue delay and the same has met all the requirements in terms of form and contents as required by rule 11 (7) of the Rules. Further, the application has been annexed with a copy of Notice of Appeal, Judgment, Decree and the notice of the intended execution.

He submitted further that, the conditions requisite for the grant of an application for Stay of Execution as provided under rule 11(5) of the Rules have been met. That under paragraph 8 of the supporting affidavit, the applicant explained about the issue of substantial loss. Regarding to the security for the due performance, the same has been deponed under paragraph 10 of the affidavit that, the applicant has proposed to provide a floating debenture over its assets to be registered in favour of the respondent; and in alternative, any security that may be ordered by this Court. In support of the application the applicant relied on the authorities in Mapius Otieno v. Machimu Mayara, Civil Application No. 279/8/2024 and Ramadhan Mohamed Kisesa v. Aloo Salim Abdallah & 3 others, Civil Application No. 484/01 of 2024, at page 7 and 8 in which this Court made a finding that, it is not always that in every case the bank guarantee is appropriate security. The counsel went on to beseech the Court to allow floating debenture which they believe is equal to a commitment bond, to serve as security for the due performance. In reply, Mr. Ngowi for the respondent declared that he did not dispute the application, save on the type of security proposed by the applicant (floating debenture on the assets). The counsel proposed that the applicant deposit a bank guarantee on decretal sum awarded to the respondent. 3

Having heard the submissions made by the counsel from both parties, it is undisputed that, the application is not objected although the respondent's concern is on the security intended to be issued by the applicant. On paragraph 10 of the affidavit, the applicant deponed that, she undertakes to provide security by way of a floating debenture over assets of the Company particularly the beverage products to be registered in favour of the respondent for an amount equal to EURO 120,000.0 as shall be directed by this Court. Generally, in dealing with the question of security for due performance, it is established that, the Court has to balance the interests of the applicant who is seeking the order for stay and those of the respondent who is required to be paid his money in the event the decree becomes binding whereas, the important thing should be focus at the decree holder to easily realize the decree in case the intended appeal fails. See- Africhick Hatchers Limited v. CRDB Bank PLC, Civil Application No. 98 of 2016. In the decree subject to the intended appeal, the respondent was awarded a decretal sum of EURO 120,000.0, the amount she is yet to enjoy pending the determination of the appeal. Therefore, among other things in determining this application, I am supposed to make sure that, the applicant's appeal will not be prejudiced and at the same time the

respondent's right to enjoy the fruit of the decree without undue delay in case the appeal fails, is protected. In his submission, Mr. Nuwamanya in convincing me to allow the applicant to provide security by way of a floating debenture over the assets of the company particularly the beverage products, to be registered in favour of the respondent on the decretal sum, he implored me to be guided with the decisions in Mapius Otieno (supra) and Ramadhan Mohamed Kisesa (supra) where it was found that, the commitment bond of which is equal to a floating debenture is sufficient to serve as security. However, it is my view that, the circumstances in the referred decisions are distinguishable with the application at hand. In the referred applications, the decrees were not in monetary nature, whilst the decree subject of this application is monetary decree. That being the facts, I find that, by allowing the applicant to provide a floating debenture over its assets particularly the beverages as stated under paragraph 10 of the affidavit, it would not be easier for the respondent who is out of that business to realize and enjoy the decree without undue delay if the appeal fails. Therefore, on that reason, I find bank guarantee of the decretal sum is the best and fair security to be furnished by the applicant.

Having said so, I hereby grant the application for stay of execution of the decree in Labour Revision No. 366 of 2022, originating from Labour Dispute No. CMA/DSM/KIN/380/2020/178/20/20 subject to applicant giving security for the due performance of decree in a form of a bank guarantee of the decretal sum within sixty (60) days from the date of this ruling. The order is made, pending hearing and determination of the intended appeal. Costs be in due course. Order accordingly. DATED at DAR ES SALAAM this 27th day of August, 2024. The Ruling delivered this 30th day of August, 2024 in the presence of Ms. Patrisha Tarimo, learned counsel for the Applicant and Mr. Innocent Mkenda, learned counsel for the Respondent, is hereby certified as a true copy of the original. L. E. MGONYA JUSTICE OF APPEAL