IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR CIVIL APPLICATION NO. 4 OF 2009 1. GENERAL MANAGER, KIWENGWA STRAND HOTEL 2. KIWENGWA STRAND HOTEL LTD……………………………. APPLICANTS VERSUS JUAN FRANSISCO MUNOZ ……………………………..………. RESPONDENT (An application for stay of execution from the decree of the Industrial Court of Zanzibar at Zanzibar) (Mshibe, J.) dated the 15th day of April, 2009 in Civil Case No. 29 of 2006 ------------RULING 7 & 11 December, 2009

LUANDA, J.A.:

On 15th April, 2009 the High Court of Zanzibar (Industrial Division) handed down a decision whereby it granted a number of reliefs sought by the above named respondent arising from wrongful termination.

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Aggrieved by that decision, the above named applicants are intending to appeal to this Court; they accordingly lodged a notice of appeal.

However, being aware that the filing of a notice of appeal per se is not a bar from executing the decree, hence the filing of this application of stay of execution. The application, which is made by way of notice of motion and supported by an affidavit, is made under Rule 9 (2) (b) of the Court of Appeal Rules, 1979 henceforth the Rules.

In this application, Mr. Rosan Mbwambo learned counsel represented the applicants; whereas Mr. Salim Mkonje learned advocate represented the respondent.

I wish to state from the outset what the law is on this application. Rule 9 (2) (b) of the Rules provides:

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(2) Subject to the provisions of Sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may – (a)

N/A

(b)

In any Civil proceedings, where a notice of appeal has been lodged in accordance with Rule 76, order a stay of execution, on such terms as the Court may think just.

It is plain clear that this Court has discretionary power to grant the order of stay of execution. But those powers should be exercised judicially and not capriciously or according to whims. Lord Mansfield in Rex V Wilkes (1770) 4 Burr 2257 cited by Sir. Jocely; P. in Povery V Povery [1971] 2. W. L. R 381 at p. 387 and quoted with approval by a Single Judge of this Court in Tanzania Electric Supply Company Ltd. Vs Independent Power Tanzania Ltd. Consolidated Civil Applications Nos. 19 of 1999 and 27 of 1999 CAT (unreported) observed, I quote:-

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“discretion, when applied to a court of justice means sound discretion guided by law.

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must be governed by rule, not by humour; it must not be arbitrary and fanciful, but legal and regular” In that respect this Court has formulated some guidelines to be applied when considering applications of this nature. The following are the guidelines to the grant of an order of stay.

(1)

Whether the appeal has prima facie, a likelihood of success.

(2)

Whether its refusal is likely to cause substantial and irreparable injury to the applicant.

(3)

Balance of convenience.

With those principles in mind, let us see whether the applicants satisfied any of the above principle.

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In the affidavit of Mr. Abdalla J. Mohamed the then advocate for the applicants in support of the application, the applicants according to Mr. Mbwambo, relied on paras 6 and 7.

The paragraphs reads:-

6. That the major dispute in the trial court on the Civil Case No. 29/2006 was payment of the money to the Respondent as described in the court decree, so one among of (sic) our ground in our intended appeal is to challenge the decision of the High Court on the tune (sic) of money described in the decree, so the execution of the said decree will make the appeal meaningless. 7. That, if the said execution applied by the respondent executed

proceed the

and

applicant

decree shall

be

suffer

irreparable loss as in case the applicant wins his appeal as much as anticipated to,

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the respondent being a jobless will be unable to repay and refund that sum to the applicant. But in arguing the application Mr. Mbwambo informed the Court that the trial court had no jurisdiction to entertain the suit as the dispute did not first go through the mediator as provided under Sections 73 (1) and 74 (1) to (4) of The Labour Relations Act, Act No. 1 of 2005 of the Zanzibar Laws Revised Edition. He went on to say that the question of jurisdiction was raised as a preliminary objection but was dismissed by the trial court. He argued that the issue of jurisdiction can be raised at any stage even on appeal. As the trial court lacked jurisdiction, it is the contention of Mr. Mbwambo that the appeal has prima facie likelihood of success.

He referred the Court to the

Tanzania Electric Supply Company case cited supra.

As regards to paragraphs 6 and 7 of the affidavit of Mr. Abdalla J. Mohamed, Mr. Mbwambo said the respondent is a foreigner and jobless. If his client wins the appeal the respondent will not be able to pay back the money. So, his client will suffer irreparable loss. He

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cited Ignazio Messina & Another Vs Willow Investment & Another, Civil Reference No. 8 of 1999 CAT (unreported).

As regards to balance of convenience, Mr. Mbwambo did not say anything.

Be that as it may, he prayed the Court to grant the order of stay.

Responding to the question of jurisdiction, Mr. Mkonje said the High Court (Industrial Division) had jurisdiction to entertain the matter. He cited Sections 80 (2) and 3 (1) of the Labour Relations Act, (hereinafter referred to as the Act). He went on to say that the legality of termination is governed by the Employment Act, Act No. 11 of 2005 in particular Sections 111 (1) (a) and (b), 112, 117 and 118 of Part X of the said Act. Further, Sections 73 and 74 of the Labour Relations Act, does not expressly state that the High Court (Industrial Division) is barred from entertaining the matter, he submitted. In any case, he went on to say the ground raised by Mr.

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Mbwambo was not one of the facts contained in the affidavit. As what is contained in an affidavit is evidence, then the same ought to have been included in the affidavit. He cautioned the Court to be guided by affidavit and not to act on extraneous matter.

Turning to paragraph 6, Mr. Mkonje said the applicants are only disputing the quantum. That is not a ground or criteria to grant an order of stay. And as regards to paragraph 7, he said his client is not a jobless. To substantiate his version he informed the Court that they filed a counter affidavit which also contain a working permit for his client.

Reacting to the question of irreparable loss, Mr. Mkonje said the amount awarded to his client will not cause the applicants to suffer such much. He prayed the application be dismissed with costs.

In rejoinder Mr. Mbwambo reiterated his arguments and in particular the issue of jurisdiction which is the question of law which

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the Court ought to consider. The matter may be raised at any stage, he concluded.

I intend to deal first with the issue of jurisdiction. As earlier stated Mr. Mbwambo raised the question of jurisdiction when he was addressing the Court to grant the order of stay. But he was frank enough to say that the question was raised as a preliminary objection during the hearing of the suit but it was dismissed. If that is the case and that they were not satisfied with that decision, obviously the question of jurisdiction would have been one of the ground in their affidavit for the Court to consider. They have not done that. But even the issue raised is not one would say is apparent on the face of the record. One has to go through the cited sections submitted by both parties and make a finding whether the Court had jurisdiction or not. Otherwise there is no material or information in the application for the Court to consider the question raised. I am very much aware that the issue of jurisdiction may be raised at any stage of the proceedings even at the appellate level as it goes to the root of

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justice (see Michael Leseni Kweka v John Elafe, Civil Appeal No. 51/1997 CAT (Unreported))

In Tanzania Electric Supply Company Ltd case cited by Mr. Mbwambo this Court held that it would grant the order of stay if it is shown that the intended appeal has prima facie likelihood of success, it appearing on the face of it that the court handing down the decision being appealed against lacked jurisdiction. In that case the High Court gave judgment arising from an application without filing a suit. This Court held, I quote:-

“….. a court has no power to give a judgment in favour of an applicant who has not instituted a suit.”

In our case there is no material or information on the face of the record in respect of the issue of jurisdiction, save that stated by Mr. Mbwambo from the bar which is not proper. The question of prima facie likelihood of success does not hold.

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I now move to the question of irreparable loss. In the first place Mr. Mbwambo did not specify the kind of loss his clients would suffer. That is not enough (see Tanzania Cotton Marketing Board v Cogecot Cotton SA [1997] TLR 63) Mr. Mbwambo merely said the respondent is jobless and a foreigner. But the respondent has filed a counter affidavit containing a working permit which permit expires on 5/10/2010. So, the respondent is not a jobless.

With regard to the question of the respondent being a foreigner, in the first place it was not raised in the affidavit. But even if he is a foreigner does it mean that is a licence to deprive his rights? I am not prepared to buy that story. I would reject that contention that the applicant would suffer irreparable loss.

Finally is the question of balance of convenience. Though not argued, I don’t think taking the circumstances of this application it tilts in favour of the applicants.

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In sum, I find the application lacked merits. The same is dismissed with costs.

Order accordingly.

DATED at ZANZIBAR this 11th day of December, 2009.

B. M. LUANDA JUSTICE OF APPEAL

I certify that this is a true copy of the original.

J. S. Mgetta DEPUTY REGISTRAR