Suryakant D. Ramji vs Saving and Finance Limited and Others (Civil Case No. 30 of 2000) [2000] TZHC 339 (24 October 2000)

I! y IN THE HIGH OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM CIVIL CASE NO.30 OF 2000 SURYAKANT D. RAMJI ................................... APPLICANT VERSUS SAVING AND FINANCE LIMITED ..............................1 ST RESPONDENT JUTHALAL VELJII LIMITED .....................................2 ND RESPONDENT JOSEPH SINDA WARIOBA (PROVISIONAL LIQUIDATOR/RECEIVER MANAGER) .....3 RD DEFENDANT — J.V TEXTILE AND GARMENTS LIMITED ......................4 TH DEFENDANT RULING • KALEGEYA,J. On 26/06/2000 the Plaintiff filed the present siit under a certificate of urgency and at the same time applied successfully for an injunctive order by which Defendants were restrained from evicting him from the disputed premises. The order was made on 04/08/2000. Plaintiff undertook to serve the Defendants with all the processes. The order was made ex parte as regards some of the Defendants as they could not be procured in time. One of those was the Provisional Liquidator for Fahari Bottlers Ltd (3rd Defendant). On 12/09/2000 Mr. Magafu is on record praying for more time to serve the 3Id and 41h Defendants. On 28/09/2000 Mr. Magafu intormed the Court that the Provisional Liquidator/Receiver Manager was not around and that his clerk had refused service. An order for reservice was made and the matter was fixed for mention on -16/10/2000. On 16/10/2000 one Msuya appeared for Plaintiff and on the same day,one Godfrey Kalist filed an affidavit stating that the clerk "refused service on the reason that the documents should be served to Mr. Warioba Esq. himself" It is the above running of events that triggered on the contentions between Mr Kesaria and Mr.Magafu and for which this ruling stands. t. 4 I -. -. • -. .• -

4 I Mr. Kesaria argues that having secured a temporary injunction the plaintiff is now stultifying the process by deliberate or reckless inaction in that he has not sufficiently acted to serve 3id Defendant. He prays to have the temporary order lifted and more so as there is an alternative prayer of cash payment in the event of success. On the other hand, Mr. Magafu ëounters that such an application should have • been brought by way of chamber summons; that they always paid fees for issuance of summons only that the 3 Defendant is not traceable and that O.XXX VII, rule 4 CPC has not been complied with to warrant the orders sought.

• 1 Mr. Kesaria, in rejoinder, insists that the dates which are relevant and on which Plaintiff didn't act are 28th September and 16" October and that he is calling upon the court to exercise its discrection under S.95 and 68 of the Civil Procedure Code to arrest the abuse of Court process. I should start saying that the court has discretion to allow a party, as it did to Mr. Kesaria, to effect an application orally. 0.43 (2) CPC is clear on this and needs no interpolation. Mr. Magafu's complaint on this is devoid of any merit. Again, his challenge based on O.XXXVII, rule 4 CPC that a temporary injunction can be set aside only if "Conditions" under that Provision are met is without legs because he flatly so alleges but does not elaborate to show what those conditions are. The rule simply provides, "Any order for an injunction may be discharged or varied or set side by the Court on application made thereto by any party dissatisfied with such order" (Emphasis mine) That is exactly what Mr. Kesaria has done - he lodges a complaint basing on what he considers to be against the law and the decision lies with the Court. Now, as to the facts. The record shows that summons were issued on 28/09/2000 when the orders was made. The question is whether they were collected and served. Mr .Magafu's list of receipts shows that on 31 October he paid for summons Vide Receipt No. 11993691. As the last summons in this matter was issued on 28/09/2000 and it was addressed to the Provisional Liquidator (Warioba) / Receiver Manager, by necessary inference it should be taken that, that is what was paid for. We are however surprised 2

. .. that Godfrey's affidavit filed on 16/10/2000 refers to the chamber application which had already been decided upon. Mr. Magafu explains the confusion by alleging that he was not in office then as he was bereaved. While Mr. Magafu cannot justify errors or mistakes committed by his office by calling his absence into defence, in the circumstances, I am convinced that the documents taken to Warioba's office included the summons dated 28/09/2000. It would have been different if no fees was paid hence no summons taken out. The orders of 28th Sept, 2000 was therefore not flouted. What about the orders of 16th October? The order of 16 th specifically targetted service on Defendants in respect of reply to 41h Def 's written statement of defence and counter claim. This date therefore is not relevant regarding challenges levelled on Plaintiff for in- action. As it stands therefore, the only date when plaintiff could bear a blame as regards non compliance with Court orders is 28th Sept.2000 which has been explained above. With that finding it is not necessary to deal with the applicability or otherwise of S. 68 and 95 of the CPC. Prayer for lifting of the injunction is accordingly refused. L.B KALEGEYA JUDGE Delivered today the 24th October, 2000. L.B. KALEGEYA JUDGE 24/10/2000 3