Philemon Joseph Chacha and Others vs South African Airways (Prop.) Ltd and Others (Commercial Case No. 57 OF 2000) [2000] TZHC 336 (12 October 2000)

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMM. CASE NO. 57 OF 2000 1.PHILEMON JOSEPH CHACHA} 2.LESLIE NDIMBO }PLAINTIFFS/APPLICANTS 3.JASON FIGUEIREDO } 4.KALUNDE KASIGA } VERSUS 1.SOUTH AFRICAN AIRWAYS (Prop.)Ltd..} 2.CHPJS J. M. ZWEIGENTHAL .. } 3.SUNSHINE TRAVEL & TOURS Ltd }..DEFENDANTS!RESPONDENTS 4.HANIN SElF t/a DISTRICT SALES MANAGER SAA/ S.A ALLIANCE AIR} Counsel: For Applicants: Prof. M. Fimbo R U L I N G DR. BWANA, J. This application by way of Chamber Summons for exparte injunctions and supported by an Affidavit of Philemon Joseph Chacha was filed under Certificate of Urgency pursuant to Order XXXVII Rs. 1 & 2; Order XLIII R2 and section 95 of the Civil Procedure Code (the CPC). This Court is being asked to issue - A temporary injunction to restrain the first and second defendants from taking the two slots at London Heathrow Airport Terminal 1 belonging to AJAS/S.A. Alliance Air, A temporary injunction to restrain the Second and Third defendants and their agents from operating the accounts of AJAS/S.A. Alliance Air at Citi Bank (I) Ltd A/C Sunshine Travels & tours Acct. No.100029-014; At First Adili Bank MASDO A/C No. 0200325028; At Standard Chartered (T) Ltd. Tshs. Acct. 010600546800 and Dollar Account No. 870600544 6800, AFRICA JOINTAIR SERVICES except to pay the plaintiffs and local administrative expenses. 1 S. 1

3. A temporary injunction to restrain the first and second defendants from terminating or in any way from interfering with the aircraft lease agreement between the first defendant and AJAS/S.A. Alliance Air and/or from interfering with the normal operations of aircraft B 767-200ER. The rest of the claims will be heard inter parties. Prof. Fimbo also prayed for the dispensation of notice to the respondents as required by law because such notice will cause undue delay and that the object of granting the injunctions will be defeated as shown in paragraph 12 of the Affidavit which states - "The matter is critical to us and extremely urgent and the giving of notice to the defendants/respondents will cause undue delay and the object of granting the injunction will be defeated" Prof. Fimbo further submitted that the whole case centres on a breach of trust. The plaintiffs/applicants are charging their Managers (the defendants/respondents) for the said breach. He submitted that instead of nurturing the managed - that is, AJAS/S.A. ALLIANCE AIR, the said managers are frustrating it to the point of total collapse and demise. Proof of such moves are stated in paragraphs 13 and 15 of the plaint, which is attached to this application. The Applicants aver that the end result of these moves by the respondents is the loss of their employment to AJASI S. A. ALLIANCE AIR as the first and second respondents have knowingly and intentionally interfered with the contracts of employment between the Applicants and AJAS/A.S. ALLIANCE - AIR. In so far as the interference with the slot at London Heathrow is concerned, it is submitted that the said slot belongs to AJAS/S.A. ALLIANCE AIR, the employer of the Applicants. Some very adverse effects on their employment will be the result if the transfer of the slot is effected because, AJAS/ALLIANCE AIR (hereinafter referred to as AJAS) will lose a substantial share of the market between Tanzania and the U.K.;

Effectively AJAS will be crippled, not viable commercially and cannot continue to operate thus is bound to be liquidated. It is further submitted that such a transfer of the slot will make AJAS not be attractive to potential investors. This will make Tanzania lose a substantial share in terms of tourism and services and will make both Tanzania and Uganda lose a bargaining leverage in the sale of their AJAS shares. All the foregoing will lead to the retrenchment of the Applicants. Prof. Fimbo submitted further that there are serious triable issues/facts to be raised which support the Applicants' claims for the reliefs sought. If no temporary injunctions are granted, the Applicants will lose their jobs and their employer will disappear from the international scene of civil aviation. The Applicants stand to suffer greater hardships if the injunctions are not granted than will the respondents. Therefore, citing the cases of Mkiwa Amrami vs Tabora Town Council & Others (CC 12/88 at Tabora) and W. R. Mramba vs Tanzania Sisal Authority (cc 5/95 at Tanga) it is Prof. Fimbo's submission that all necessary conditions for granting the injunctions sought are present. I will revert to the cases cited at a later stage. Before I get down to the nitty gritty of this application, I will examine, albeit briefly, some of the salient issues raised in this exparte application for temporary injunctions. I start by examining the issue of dispensation of notice. Order XXXVII R.4 of the CPC, as amended, is suffice to quote. It states: "The court shall in all cases, before granting an injunction direct notice of application for the same to be given to the opposite party except where it appears that the giving of such notice would cause undue delay and that the ob/ect of.ranting the in/unction would thereby be defeated "('emphasis mine) This matter was well considered by Mfalila, J. A. (as he then was) in the recent case of A. L. Mrema & Others vs A. Majengo & Others (C.A. 41/99). From the above authority, it is, in my opinion, the court is required to consider two issues namely the time factor and 3

the object for such application. In the former, the court should decide whether by ordering service to the opposite party undue delay in the delivery of justice in the matter will result, causing unnecessary sufferings to the applicant. That is to say, the court has to satisfy itself that unless immediate action is taken, the applicant will suffer irreparable damage. In so far as the latter issue is concerned, the court will have always to take into account why the application for dispensation has been raised. There could be countless number of reasons. What is required is for the court to satisfy itself that the said objects are sound in the circumstances. It does so by examining the material facts presented before it as supported by relevant affidavits and other documents attached. Now, can it be said that there are sufficient grounds raised to warrant the dispensation of notice to the opposite party? It has been submitted and supported by an affidavit that moves are curiently being taken by the respondents which, according to the Applicants will in the upshot, lead to the liquidation of the applicant's employer. Such moves include the transferring of a profitable slot at London Heathrow; there are moves to do the same to the second slot; the announcement by the first defendant on 9 October 2000, that the leased aircraft is stopping operations; the likelihood of the applicants losing their employment. I consider all these matters to be very serious and require urgent legal action. That is in addition to the need to have all the Bank Accounts mentioned above frozen just in case some funds are withdrawn contrary to normal operations of the employer. The above considered ab summam, I am of the view that service of notice should be dispensed with. The next issue for consideration is whether it is proper in law and practice for all three prayers (for injunction) to be considered in one application and supported by one affidavit. I must state here that the High Court seems to be divided over this issue. However, I do concur with the position taken by Mapigano, J (as he then was) in the case of Tanzania Knitwear Ltd vs. Shamsh Esmail (1989) T1R 48 that: "the combination of two applications in one is not bad in law since courts of law abhor multiplicity ofproceedings"

To me, that is sound law especially when considered in the light of the instant application. The three exparte applications are inter related and are correctly supported by the affidavit of the first applicant. The opposite would be to have more than three applications filed by the applicants but all relating to same facts and evidence. The multiplicity of suits itself-as is settled law-may be a cause of injustice to the parties, particularly the defendants. Therefore I find that the combination of all the three prayers into one application is proper. I will then examine, again but briefly, as to whether this exparte application sufficiently contains all the necessary requirements/principles. The cases of Amrani and that of Mramba have been mentioned above. Therein, the judgment in Attilo vs Mbave (1969)HCD 284 is extensively quoted. It is equally important to quote the following two English cases. In an earlier case of Edmund de Polgac: Exparte (1917) All E. R. 486, it is stated: "It is perfectly well settled that a person who makes an exparte application to the court, that is to say in the absence of the person who will be affected by that which the court is asked to do - is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings and he will be deprived of any advantage he may have already obtained by him. . That was Warrington, L. J.. In the same case, Scrutton, L. J. stated further - "it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court 5

to obtain relief on an exparte statement, he should make a full and fair disclosure of all material facts, not law. The court is supposed to know the law but it knows nothing about the facts and the Applicant must state fully and fairly the facts and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.." Therefore the affidavit must disclose all material facts which would help the court to arrive at ajust and fair decision. Otherwise, as Ralph Gibson, L. J. stated in Brink's- MAT Ltd vs Elcombe (1988) 3 All E. R. 188: "In considering whether there has been relevant non-disclosure and what consequences the court should attach to any failure to comply with the duty to make full and frank disclosure, the governing principles are the following- The applicant should make full and fair disclosure of the material facts. The material facts are those which it is material for the judge to know in dealing with the application. The applicant must make proper inquiries before Making the application. (4)...........

if material non-disclosure is established, the court will be astitute to ensure that an applicant who obtains an exparte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty ........... however, it is not every omission that the injunction will be automatically discharged. A locus poenetentiale (chance of repetance) may sometimes be afforded and the court may well grant such a second injunction if the original non-disclosure was innocent- and (/the injunction could properly be granted even had the facts been disclosed...." All the foregoing may be stated briefly as meaning the following - that in all applications of this kind, there must be the fullest possible disclosure to the court of all the material facts known to the applicant, without any attempt to intentionally mislead the court or intentionally starve it of the truth, the interim nature of the court's order notwithstanding. In the instant application I have examined all the information before me and am satisfied that what is stated by the Applicants satisfies the requirements of the law. The applicants are asking for a temporary injunction. Order XXXVII R. 1 lists cases which such injunctions may be granted. Both R 1 (a) and (b) seem to be relevant to the instant issue. Such injunctions are granted when the court is satisfied that first, unless immediate action is taken, the applicant may suffer irreparable damage and second, denying temporary injunction in favour of trial may, in the end, make the main dispute in the case, nugatory. I have examined the issues raised herein and as they relate to each of the three injunctions sought. I am convinced that the denial of the injunctions prayed for will, indeed, make the suit, nugatory. Therefore, I rule in favour of this exparte application and grant the three injunctions against the defendants/respondents and their agents as follows;- 7

I (1) A temporary injunction is granted restraining the first and second defendants from taking the two slots at London Heathrow Airport Terminal 1 belonging to AJAS/S.A. ALLIANCE AIR; (2) A temporary injunction is granted restraining the second and third defendants and their agents from operating accounts of AJAS/ S.A ALLIANCE AIR at Citibank (7) Ltd A/C Sunshine Travels and Tours Acct No.100029-014. First A diii Bank MA SD 0 Acct No. 0200325028 Standard Chartered (T) Ltd T shs. Acct No.0106005 45800; and Dollar Acct No. 8 706005446800 AFRICA JOINTAIR SERVICES except to pay the plaintffs/applicants and local administrative expenses. (3) A temporary injunction is granted restraining the First and Second defendants from terminating or in any way from interfering with the air craft Lease Agreement between the First Defendant and AJAS/S.A. ALLIANCE AIR and/or from interfering with the normal operations of aircraft B 767-200ER. All the above with costs to the applicants. Sgd: Dr. S. J. Bwana JUDGE 12/10/2000 Order: Defendants to be served with the necessary summons for the inter partes proceedings already fixed for hearing on 2/11/2000 at 9.00 am. ..ertilY that this is a true anI Correct . ............. : t . egiStraI Conuflerdat Court Dpr es Salaaifl of 4. Sgd: Dr. S. J. Bwana JUDGE 12/10/2000 8