General Manager: Williamson Diamond Ltd v Swila (Civil Appeal No. 16 of 1994) [1999] TZHC 516 (26 November 1999)

148 TANZANIA LAW REPORTS[200ijT.L.R. a GENERAL MANAGER: WILLIAMSON DIAMOND LTD v. CLETUS SWILA HIGH COURT OF TANZANIA ATTABORA (Mwita, J.) CIVIL APPEAL No. 16 OF 1994 (From the Ruling of the District Court of Shinyanga at Shinyanga, in Civil Case No. 52 of 1993) jj Civil Practice and Procedure - Issue overtaken by events - Consequence thereof

• Order XXXVll, rule 2 of the Civil Procedure Code and G.N. Number 508 of 1991 and section 28 of Chapter 129. The respondent sued the appellant in Shinyanga District Court for damages for wrongful E dismissal and for terminal benefits. He also filed an application seeking injunctive reliefs against the appellant, one of which was to restrain the appellant from evicting him from the company premises which he was occupying. The District Court granted the application as prayed, that is, that the appellant be restrained from evicting the p respondent from the premises until the suit was finally determined. The appellant appealed to the High Court against that ruling. But by the time the appeal came up for hearing, the matter had been overtaken by events in that the main suit itself had already been determined and the respondent had vacated the house in question. The _ question before the High Court, therefore, was whether it would be proper to proceed to determine the appeal on merits in those circumstances in the absence of any controversy between the parties. Learned counsel for the appellant submitted that although the matter had been overtaken by events, the court should determine legal questions raised for future guidance. Held: (i) There has to exist a matter in actual controversy which the court then undertakes to decide as a living issue; as there was no issue to be decided, the appeal is dismissed I Appeal dismissed

GENERAL MANAGER: WILLIAMSON DIAMOND LTD v. < Lt I US SWILA 149 Cases referred to: A (1) Ainsbury v. Millington [ 1 987] 1 WLR 379 (2 ) Sun Life Assurance Company of Canada v. Jervis [1944] 1 All ER 469 Statutory provision referred to: B (1) Civil Procedure Code, Order XXXV11, rule 2 Mr Rugarabamu, for the Appellant Respondent, Absent C JUDGMENT (Delivered 26 November 1999) D Mwita, J.: Cletus Swila was employed by Williamson Diamond Ltd with effect from 1 January 1967. His contract of service was terminated on 20 October 1992. Swila instituted a suit against his employer, E Williamson Diamond Ltd claiming damages for unfair dismissal as well as terminal benefits. He also sought injunctive relief against his employer, namely, an order of temporary injunction restraining Williamson Diamond Ltd., its agents and servants from evicting him from his employer ’ s premises until the parties ’ rights are determined in the main suit. An order for injunctive relief was granted. The trial magistrate made the order in the following terms: Temporary injunction is hereby given restraining the respondent, his servants and/or agents from evicting the applicant from the suit premises pending the final determination of the main suit. Aggrieved by the said order Williamson Diamond Ltd (appellant) has appealed to this court. H At the hearing of this appeal the appellant was represented by Mr Rugarabamu, learned advocate. Though duly served, the respondent did not appear and was not represented by counsel. The appeal was accordingly heard ex-parte. 1

150 TANZANIA LAW REPORTS [200 Ij T.L.R. A Mr Rugarabamu conceded that the appeal against the order of temporary injunction has been overtaken by events. The main suit has been determined and the respondent has already quit the premises the subject matter of the temporary injunction. Despite the fact that B it has been overtaken by events, Mr Rugarabamu invited the court to consider the appeal on the merits with a view to giving guidelines to trial magistrates with regard to principles which ought to guide them when exercising the discretion to grant or not to grant orders c for temporary injunction. Mr Rugarabamu attacked the trial magistrate ’ s order on three main grounds. The first being that where damages would be a sufficient remedy, an injunction ought not to be granted. Mr Rugarabamu argued d that this was not a proper case for the grant of an order for temporary injunction, because if it could be proved that eviction was wrong, any damages could be compensated by money. Secondly, that in terms of Order 37, rule 2 of the Civil Procedure E Code as amended by GN. Number 508ofl991a temporary injunction lasts for six months and can be renewed for another six months. After that there can be no further renewal. Thus an order to restrain the appellant from evicting the respondent from the suit premises F until the final determination of the main suit is erroneous as it contravenes the provisions of Order 37, rule 2 of the Civil Procedure Code as amended. Thirdly, that by ordering that the respondent should stay in the G suit premises when his Contract of Employment with the appellant had been terminated, the trial magistrate was in error because under section 28 of Chapter 129 the respondent could stay in the suit premises only with the permission of the appellant. PJ The question is whether it is proper for this court to consider this appeal on the merits when there is no longer any controversy between the parties with regard to the order of temporary injunction. j It is a fundamental feature of the judicial system that the courts decide disputes between the parties before them and do not pronounce

GENERAL MANAGER: WILLIAMSON DIAMOND LTD v. CUE 1 US SWILA 151 on abstract or hypothetical questions of law where there is no dispute A to be resolved, even though the question of law' raised might be one of general importance the resolution of which may have been left in doubt by different decisions of the courts below. In Ainsbury v. Millington (1) where a party had been refused an injunction requiring b the other party to vacate a council house and by the time the case was called on for hearing before the House of Lords, the party ’ s tenancy of the council house had been terminated, the House of Lords held that there would be no hearing on the merits and the c appeal would be dismissed. The House of Lords applied the dicta of Viscount Simon, in Sun Life Assurance Company of Canada v. Jervis (2) at pages 470 and 471 which are as follows: at page 470 Viscount Simon, LC said: The difficulty is that the terms thus put on the appellant by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellant wins or loses; the respondent will be in exactly the same position in either case. He has nothing to fight for, because £ he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer F to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellant hopes to get decided in its favour without in any way affecting the position between the parties. Viscount Simon, LC continued at page 471 : No doubt the appellant company is concerned to get, if it can, a favourable decision from this House because it fears that other cases may arise H under similar documents in which others who have taken out policies of endowment assurance with it, will rely on the decision of the Court of Appeal. But if the appellant desires to have the view of the House of Lords on the issue upon which the Court of Appeal has pronounced, its I proper and more convenient course is to await a further claim, and to

152 TANZANIA LAW REPORTS [2001 ] T.1 .. R. A bring that claim, if necessary, up to the House of Lords with a party on the record whose interest it is to resist the appeal. The research which has been given to the matter does not discover any previous decision in which the House of Lords has undertaken, on the petition of an unsuccessful B appellant, to review the decision below when the opposite party has been finally settled with, and I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertaken to decide as q a living issue. In the instant case, as there is no living issue to be decided, it would be improper for this court to decide an academic question, the answer to which cannot affect the respondent in any way. The appeal is accordingly D dismissed. Each party to bear his own costs. E KIBO MATCH GROUP LTD v. H.S. IMPEX LTD HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM (Dr. Bwana, J.) COMMERCIAL CASE No. 7 OF 1999 G Civil Practice and Procedure - Application for temporary injunction - Order ' 37, rule 2 of the Civil Procedure Code 1966. Trade Mark - Infringement of trademark both parties manufacturing or dealing H in similarly branded items from different counties - Sections 31 and 32 of the Trade and Service Marks Act 1986. The applicant had sued the respondent for infringement of its trade marks. It manufactures in Tanzania safety matches under the trade mark KANGAROO, I identified by a distinct label depicting a picture of three kangaroos on the box of its