Introduction
A stay of execution is a legal process that temporarily halts the enforcement of a court Decree or Order. In Tanzania, this principle plays a crucial role in the judicial system, and essentially protects the rights of the Judgment debtor as well as the Decree holder, pending final determination and conclusion of the Appeal process. This article delves into the legal framework governing Applications for Stay of Execution in Tanzania, examining its procedural aspects, grounds that Courts take into consideration before granting the same, and the implications for the parties involved.
Legal Framework
Stay of execution in Tanzania is governed primarily by the Civil Procedure Code, Cap. 33 R.E. 2019, the Employment and Labour Relations Act [Cap 366 R.E 2019], the Labour Court Rules, GN 106 of 2007 and the Tanzania Court of Appeal Rules, 2009. These statutes outline the procedures and conditions under which an Order for stay of execution can be granted by the courts.
1. Civil Procedure Code (CPC), Cap. 33 R.E. 2019
Under the CPC, the relevant provisions for stay of execution are found in Order XXI, Rule 24(1), Rule 27 and Order XXXIX, Rule 5(1), (2) and (3). Order XXI Rule 24(1) provides:-
"The Court to which a Decree has been sent for Execution shall upon sufficient cause being shown stay the execution of such a Decree for a reasonable time to enable the judgment debtor to apply to the Court by which the Decree was passed or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution or for any other order relating to the decree or execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby or if application for execution had been made there to"
Under Order XXXIX Rule 5, the court may stay the execution of a decree if sufficient cause is shown. The said Rules further provide that an Order for Stay of Execution must be made by the judgment debtor, and the court must be satisfied that substantial loss may result to the party applying for a stay of execution unless the said Order is granted. the application has been made without unreasonable delay, and the security has been given by the applicant for the due performance of such decree or order.
2. The Employment and Labour Relations Act [Cap 366 R.E 2019]
Under the Employment and Labour Relations Act [Cap 366 R.E 2019], the provisions relevant to a stay of execution are set forth in Section 91(3). This section grants the Labour Court the authority to stay the enforcement of an award pending its final determination.
An application for a stay of execution must be initiated through a chamber summons, supported by an affidavit, and must adhere to the procedural requirements specified under Rule 24(1), (2)(a) to (d), (f), (j), (3)(a)-(d), and 24(11) of the Labour Court Rules.
Grounds for Stay of Execution in Labour Cases
The grounds for granting a stay of execution in Labour cases differ from those applied in civil cases. The applicable principles are articulated in the case of Ignazio Messina & National Shipping Agencies vs. Willow Investment & Costa Shinganya, Civil Reference No. 8 of 1999 (unreported), which established that:
- The Court will grant a stay of execution if the applicant demonstrates that refusal would result in substantial and irreparable loss that cannot be adequately compensated by damages;
- The Court will also grant a stay if refusal would, in the event the intended appeal succeeds, render that success nugatory;
- Additionally, the Court will consider granting a stay if, in its view, the balance of convenience favors such an order."
In an application for a stay of execution, the applicant must provide convincing evidence that these principles are met to justify the issuance of the Order for Stay of Execution.
3. Tanzania Court of Appeal Rules, 2009 (As amended)
The Tanzania Court of Appeal Rules, 2009 grants the Court of Appeal powers to stay execution pending an appeal. Rule 11(2) (b), (c), and (d) specifies that the Court of Appeal may order a stay of execution to prevent the ends of justice from being defeated. The principles for granting a stay under this Act are similar to those under the CPC, emphasizing the need for demonstrating sufficient cause.
Grounds for Granting an Order for Stay of Execution
Rule 11 (5) (a) and (b) of the Court of Appeal Rules provides for conditions that a party needs to satisfy before the court grants an Application for Stay of Execution. The court of Appeal of Tanzania has on various occasions had an opportunity to adjudicate upon and make rules touching on Stay of Execution.
In Ongujo Wakibara Nyamarwa Vs. Beatrice Greyson Mmbaga, Civil Application No. 200/17 of 2021, the Court held stated at page 6:
"An application for stay of execution is governed by Rule 11 of the Rules. Sub-rule (4) of the said Rule requires an application of this nature be filed within fourteen days of service of notice of execution on the applicant or from the date the applicant became aware of the existence of the application for execution. The other conditions for the stay of execution are provided under Rule 11 (5) of the Rules as follows:
'No order for stay of execution shall be made under this rule unless the Court is satisfied that:
- substantial loss may result to the party applying for stay of execution unless the order is made;
- security has been given by the applicant for the due performance of such decree."
The condition for security as provided under Rule 11(5) (b) of the Court of Appeal Rules can be satisfied by the applicant's firm undertaking that they are willing to provide such security; no particulars of the security are required. The case of Mantrac Tanzania Limited vs. Raymond Costa, Civil Application No. 11 of 2010 (unreported), established that a firm undertaking by the applicant to furnish security is sufficient, and specific particulars of the security are not necessary.
"To meet this condition the law does that strictly demand that the said security must be given prior to the grant of stay order. To us, a firm undertaking by the applicant to provide security might prove sufficient to move the Court, all things being equal to grant the stay order provided the Court sets a reasonable time limit within which the applicant should give the same." [Emphasis added]."
Procedural Aspects
The procedure for applying for a stay of execution involves the following steps:
1. Timeliness of the Application
An application for stay of execution must be filed within fourteen days of service of the notice of execution on the applicant or from the date the applicant becomes aware of the existence of the application for execution. This procedural requirement ensures that the application is made promptly and without undue delay, as stipulated in Rule 11(4) of the Court of Appeal Rules.
2. Formal Application and Supporting Documents
The applicant must file a formal application supported by an affidavit detailing the grounds for the stay of execution. The affidavit should include evidence demonstrating the substantial loss the applicant would suffer and their willingness to furnish security. The application must be served on all parties involved in the original case.
3. Hearing and Determination
Once the application is filed, the Court schedules a hearing where both parties can present their arguments. The Court then evaluates the merits of the application, considering factors such as the likelihood of substantial loss, the sufficiency of the security offered, and the overall interests of justice. The Court's decision to grant or deny the stay is based on a balanced assessment of these factors.
Rule 11 (6) grants authority to a single justice of the Appeal to issue an Ex-Parte Order for Stay of Execution, if there is good cause, until the Application for Stay of Execution is heard and determined inter-partes. It is important to highlight that according to Rule 27, as a general rule, Applications and Appeals filed at the Court of Appeal are heard by three justices of appeal.
Implications for Parties Involved
A stay of execution has significant implications for both the judgment debtor and the judgment creditor:
1. For the Judgment Debtor/ The Applicant
The most immediate implication for the applicant is relief from the immediate enforcement of the judgment or decree. This provides the applicant with an opportunity to seek further legal redress, such as an appeal, without the pressure of compliance with the original court order. It safeguards the applicant from potential substantial loss that might result from the execution of the decree.
2. For the Decree Holder/ The Respondent
For the respondent, a stay of execution means a delay in the realization of the benefits of the judgment or decree. This can be particularly challenging if the judgment involves monetary compensation, as the respondent may experience financial strain due to the deferred payment.
While the stay of execution delays enforcement, the requirement for the applicant to furnish security provides some assurance to the respondent. This security acts as a form of guarantee that, should the appeal be unsuccessful, the respondent will eventually receive the compensation or relief awarded by the court.
Conclusion
Stay of execution is an important legal mechanism in the Tanzanian judicial system, as it serves to balance the necessity of enforcing court judgments promptly with safeguarding the rights of appellants. Tanzanian courts carefully assess the reasons for granting a stay and adhere to procedural guidelines to ensure that justice is administered fairly and equitably. As legal practitioners and stakeholders navigate the complexities of this legal remedy, a comprehensive understanding of its principles and procedures is crucial for protecting the interests of all involved parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.