Gapco Tanzania Limited v Mansoor Service Station (Civil Revision No. 4 of 2000) [2000] TZHC 671 (27 July 2000)

99 GAPCO ANZANIA LIMITED v. SHANIF MANSOOR t/a MANSOOR SERVICE STATION GAPCO ANZANIA LIMITED v. SHANIF MANSOOR t/a a MANSOOR SERVICE STATION HIGH COURT OF TANZANIA AT MWANZA » (Mroso, J.) CIVIL REVISION No. 4 OF 2000 r (From Mwanza District Court at Mwanza, in Miscellaneous Civil Application No. 32 of 2000) High Court - Revisional jurisdiction - Application for revision made to the D High Court under section 79(1) of the Civil Procedure Code - Whether the application is competent - Section 79(1) of the Civil Procedure Code 1966 and section 44(b) of the Magistrates ’ Court Act 1984. Civil Practice and Procedure - Injunction - Temporary injunction - e Circumstances in which an order of temporary injunction may be granted ex parte - Order XXXVII, Rules 2 and 4 of the Civil Procedure Code 1966. The applicant filed an application for revision of an interim order of injunction granted against it on 7 April 2000 by the District Court of Mwanza. This had followed an F application for an injunction order filed by the respondent under Order 37, rules 2 and 4 of the Civil Procedure Code 1966. The advocates of the respondent filed a preliminary objection to the application which had been filed under section 79(1) of the Civil Procedure Code 1966 and section 44(l)(b) of the Magistrates ’ Courts Act 1984 on G the ground that it was incompetent and was inteded to defeat the course of justice. When the matter came up for hearing the advocate for the respondent did not appear and the reasons which were given for the default were not accepted by the court so the hearing of the application was ordered to proceed by way of written submissions. r.j Held: (i) Section 79(1) of the Civil Procedure Code is intended to empower the High Court to suo moto, revise a case in which the court would not have any other opportunity to do so in the absence of an appeal; I

100 TANZANIA LAW REPORTS [2002] TLR. (ii) Although section 79(1) of the Civil Procedure Code was inapplicable, the application before the court was competent under section 44( 1 )(b) of the Magistrates ’ Courts Act 1984 which was also quoted; (iii) Ex parte proceedings are resorted to only in extreme and unavoidable situations particularly where there is fault with the other party; (iv) In the absence of evidence that a notice of hearing to the respondent would cause undue delay and that the object of granting temporary injunction would thereby be defeated, there was no basis for the District Court to grant the ex parte order. Ex parte proceedings and order quashed Statutory provisions referred to:

1. Civil Procedure Code 1966, section 79(1), Order XXXVII, rules 2, 3 and 4
2. Magistrates ’ Court Act 1984, section 44(b) Mr Galati, for the Applicant Mr Magongo, for the Respondent RULING (Dated 27 July 2000) Mroso, J.: This is an application by Gapco Tanzania Limited for revision of an order of the District Court of Mwanza which was given against it on 27 April 2000 following an ex-parte application by the respondent for an injunction order under Order 37, rules 2 and 4 of the Civil Procedure Code, 1966. The respondent through his advocates, Magongo and Company, filed a notice of preliminary objection to the application contending that the application which showed to have been made both under section 79(1) of the Civil Procedure Code, 1966 and section 44(1 )(b) of the Magistrates ’ Courts Act 1984 was untenable in law and was intended to defeat the cause {sic) of justice and therefore, that it be struck out.

GAPCO ANZANIA LIMITED v. SHANIF MANSOOR t/a MANSOOR SERVICE STATION The court set down the application for hearing on 4 July 2000 a when the preliminary objection would be dealt with and, depending on the ruling, it would either be terminated or proceed to hearing on merit. The advocate for the respondent did not show appearance and the reasons which were given for the default were not accepted s by Court. It was ordered that the application proceeds to hearing. However, it was considered expedient to allow both parties to make written submissions in order to give the respondent opportunity to elaborate on his counter-affidavit to the affidavit in support of the application. Both parties have sent in their written submissions. However, the advocates for the parties either advertently or inadvertently, confined their submissions to the preliminary objection. If that was done advertently, I? it was a misconception because the court order was that the hearing of the application was proceeding, the respondent having failed to appear to argue his preliminary objection. In fact, the court could have proceeded to give audience to the applicant ’ s advocates only e as regards the application but instead decided to give the respondent opportunity to submit on the substance of the application. I would agree that the citing of section 79(1) of the Civil Procedure Code, 1966 was a misconception of the law. A party cannot move F the High Court under that section to revise Lower Court proceedings or decision. The provision is meant to empower the High Court to move suo moto to deal with the improprieties listed in paragraphs (a)(b)and (c) of section 79(1) in a case in which the court would g not have any other opportunity to do so in the absence of an appeal. Section 44(1 )(b) of the Magistrates ’ Court Act 1984 enables a party to move the High Court to revise defective decisions of a subordinate Court. Despite the error by the applicant in citing section 79(1) of a the Civil Procedure Code this Court will not grant the respondent what they sought. Luckily for the applicant, it also cited the relevant provision of the Magistrates ’ Courts Act as stated above and I shall only consider the wrong citing of section 79( 1) as a mere superfiu ous

102 TANZANIA LAW REPORTS [2002] T.L.R. A exercise. The preliminary obj ection, therefore, succeeds only partially. Now I will proceed to deal with the application before me. As mentioned earlier, the advocates for the respondent did not advert to the merits of the application although they filed a counter B affidavit to it and I shall certainly consider it. The same applies to the applicant. Before writing this ruling I had to call for the Lower Court record in order to familiarize myself with the nature of the proceedings which led to the order against which this application was made. The respondents filed Civil Case Number 27 of 2000 in the District Court of Mwanza against the applicant praying for Judgment and D decree for, among others, “ an order restraining the defendant from unilaterally terminating (an operatorship) agreement ” between the parties. On the same date when the suit was filed the respondent filed an ex parte Chamber application under a Certificate of Urgency E “ praying that the Honourable Court grant an injunction order restraining terminating the operatorship agreement pending the determination of the main suit ” . In the supporting affidavit sworn by one Shanif Nassor it is stated f in paragraph 3 thereof as follows, and I quote: 3. That if this application is granted the respondent will suffer less inconvenience than that which the applicant will suffer if not granted, since the respondent will still finally have his wishes as per annexture G “ PB ” to the plaint if the suit is dismissed but applicant will be inconvenienced by having to dispose with stocks within limited time, terminate workers and discontinue services to customers and in the event of the suit being decided in his favour this will result into substantial inconvenience. H In paragraph 6 of the same affidavit Shanif Mansoor said, and I quote: 6. That this application has been made ex parte because the delay that may result into effecting service may defeat the very purpose of granting the application which is being sought.

GAPCO ANZANIA LIMITED v. SHANIF MANSOOR t/a 103 MANSOOR SERVICE STATION As mentioned earlier in this ruling, the respondent ’ s application was a made under rules 2 and 4 of Order 37 of the Civil Procedure Code. Rule 2( 1) of course, authorizes a plaintiff to seek an order of injunction from the court in which he filed a suit to restrain a defendant from committing a breach of contract or other injury. If the court grants b the injunction but it is disobeyed, rule 2(a) (as amended by GN Number 508 of 1991) provides for consequences. Order 37, rule 4 of also as amended by GN Number 508 of 1991, says and this is important in the matter under discussion: c 4. 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 object of granting the injunction, would D thereby be defeated. The Lower Court record shows that on 27 April 2000 when both the plaint and the ex-parte application for injunction were filed the court ordered: E Hearing of Ex parte Chamber application fixed on 27 April 2000. The order itself is dated 27 April 2000, which suggests that the application was to be heard on the same day. Immediately below that order there F is the following record: Date: 27 April 2000 Coram: JM Somi, PRM. C For Applicant: Mr Ma'gongo - Adv Present. For respondent - absent (unserved) B/C Makole II MrMagongo: I am for the plaintiff. The defendants are not in operatorship agreement (sic) pending the determination of the application filed herein. Pray accordingly. I

104 TANZANIA LAW REPORTS [2002]T.L.R. A Order: (1) M on 18 May 2000 (2) Defendants to be served accordingly. (3) Meanwhile an interim order restraining the respondents and/ B or agents/servants from unilaterally terminating operatorship agreement is hereby granted as prayed, pending the determination of the application filed herein. Signed PRM C 27 April 2000 I get a feeling that something may have been omitted from Mr Magongo ’ s address to Court because the address appears to be meaningless. D Even so, there is no clear indication that Mr Magongo was asking for an interim order. Furthermore, the court embarked on ex-parte proceedings without any indication what convinced it that the respondent in the application could not be served, even at short notice. Apparently, the threatened ceasation of the operatorship agreement was to take effect from 2 May 2000, so, there was time to serve the respondent. Ex-parte proceedings are resorted to only in extreme and unavoidable situations, particularly where there is fault with the other party. In F the proceedings under discussion the presiding magistrate appears to have taken the statements in the affidavit of the application before him as proved facts. There was nothing before him to prove that a notice to the respondent would cause undue delay in dealing with the application. There was no basis therefore for the ex parte proceedings. G Secondly, the presiding magistrate said in his interim order that he was granting it as prayed. But there was no such application before the court. H Thirdly, he said he granted the interim order pending die determination of the application (for injunction pending the determination of the suit). Assuming, without accepting, that the presiding magistrate found it meritorious to issue the interim order, in was imperative to immediately I fix the earliest possible date for the application to be heard inter

GAPCO ANZANIA LIMITED v. SHANIF MANSOOR t/a 105 MANSOOR SERVICE STATION parties in order to give the respondent in that application the opportunity to be heard. As it is, three months have lasped since the interim order was made and yet the application between the parties has not been heard. Since there was no justification fos the ex-parte proceedings on 27 April 2000, those proceedings together with the consequent interim order are quashed and set aside. The Lower Court should, as soon as possible, set down for hearing the application which was before it. Both parties should be heard and a decision given on merit. I wish to caution the presiding magistrate that should he find it appropriate to issue a temporary injunction, as asked by the applicant before him, Order 37, rule 3 of of the Civil Procedure Code, 1966 as amended by G.N. Number 508 of 1991 should be adhered to. A temporary injunction has a life span of six months only, unless extended from time to time as permitted by law.