Tuico Ottu Uni8on and Another vs NBC (1997) Ltd and Others (Misc. Civil Cause No. 11 of 1999) [1999] TZHC 83 (5 October 1999)

MAPIGANO, J: 'IN THE HIGH COURT OF TANZANIA DAR RS SALAAM HAIN REGISTRY- AT DAR RS SALAAM MISC. CIVIL CAUSE NO.11/1999 (1) TUICO - OTTU UNION ...... APPLICANT (2} AUGUSTINE CELESTINE ·VERSUS .. (1) C (1997} LTD ...... 1ST RESPONDRNT i { 2) . PSRC. . . . . . . . . . . . . . . . 2ND RESPONDENT (3} ATTORNEY GENERAL .... 3RD RESPONDENT RULING . . . .. . . \ \0 The preliminary point of law which has been tak:n by the 1./ · Attorney General in opposition to the applican5• chamber summons is an interesting one. In the chamer summons the applicants seek an order for interin, elief pending the hearing of an appeal which they intend t prefer to the Court of Appeal against this Cou1~•s refusal to grant leave to them to apply for prerogative or~~rs. The Attorney Gneral contends that having refused such leave this Court is functus officio· and has, therefore, no juisdiction to grant any form of interim relief .. To start with, I will say a few words about- some collateriit~·:· matters which have cropped up during counsel's arguments. -Fir-1¥'; · Professor Shivji, counsel for the applicants, is right in saih~--- that the source of the jurisdiction of this court to entertain .··}?.t .-.\s; .. .,.-:1· "''' ·' . . ., ' ' ''"i!f'ifii{;:,i.,J! . ::):.;;1f \j}:w};·/•?J ~; .: ,,\ c: \ .i: ~flJ.1:,~ ..... ~-- _ .,. I I i • I ;

2 · applications for prerogative orders is the Judicature and Application of Laws Ordinance, Cap 453, which imports into Tanzania the substance of the common law, doctrines of equity and statutes of genral Application in force in England on the reception date, i.e. 22/7/1920. He is also right in saying that in regard to procedure .such applitations are not governed by the .. provisions of the Civil Procedure Code or the Government Proceedings Act. Secondly, there is no written law which specifically confers power on this Court to grant interim injunctions pending appeal 10 to the Court of Appeal, and where the Cour.t has granted· such · reliefs it has done so by invoking its inherent jurisdiction. Thirdly, this Court has consistently held that it has also inherent jurisdiction to gant injunctive relief pending the hearing of the Application for leave to move for judicial review and pending the disposal of the substantive application. The question now before me is whether this Court has also jurisdiction to grant interim reliefs pending appeal to the Court of Appeal where leave to move for judicial review has been withheld .. The Attorney General, as already mentioned, asserts that the Court does not possess such jurisdiction .. It is said by Mr Kamba, on .his behalf, that where the. Court has refused such leave it becomes functus officio and has no jurisdi6tion to grant any form of interim relief. Reliance· is placed upon the Supreme Court Practice [1993], para 53/1-14/24, which was cited with approval by the House of Lords in the case of M v Home Office and 20

( another, ~ 3 ·•,(tr~:;, ={;. [1993] 3 All ER S 37 at 565; and· on the comment made by the learne<l authors of Hulla on the Indian Code of i.vil Proced11re, 14th ed. p.2136 para 3. Reference has alsa been made to the rlecision of Srnatta, JK, as he then was, in the case of Vidyadhar.G. Chavda v The Direct.ot' of Immigration Services and ' two others Misc. Civ. Cause No.5 of 1995 of the High Court Main

Registry. T should however point out, with respect to Mr Karnba, that the issue before the learned judge in that case was whether this Court has power to grant an interlocutory injunction before hearing an appJication for leave to apply for a prerogativ~ \0 order. It is true that at one point in the course of his ruling t.he judge hAppened to quote the paragraph in the SCP. [ 1993 J. B11t I think then~ is no one except thA j1Jdge himself who knows for. ce-rt;:i j_n whet.her he s11bscLibed to the view that the Court has also the powe-r to grant interim reJ.iefs pen<ling appeal to the n11rt of AppeAl one it has refused leave to move for judicial On his p~rt Professor Shivji takes the opposite view. It is hi.s content i.on that the Court is not f1.1nct11s officio -:lnd that in appropriate circumstances the Court can p-roperly resort to its i nhenrnl". jur i.s<l i.ct: ion and grant interim reliefs even where it has refused leave to apply for the orders. He has cited several- authori.tj_es to support his proposition. Professor Shivji submits that in o far as the grant of ;,,,.,, i,11 ,,1Ji•,:, is •:oncerned there i.s no distinction in ,principle between an application ·for leave to move for judicial review and 1.0

4 an appeal against a refusal of such leave. In each case, he says, the purpose is to prserve the status quo in order to ensure that jf the_ application for the orders is granted, or if the appeal succeeds, the applicaht or the appellant, as the case may be, does not obtain a ere barren success. It should be realizedi that all the cases ciied by Professor ... Shivji were civil proceedings. It seems to me that there is no · judicial pronouncement on the point raise.d by the Attorney General in Tanzania and that, therefor, the present case is o·ne of first impression. I have given· the matter sufficient consideration and I have preferred to go with what the SCP (1993) says, namely, that if a judge at first instance has refused leave to move to judicial review, he is functus officio and has no jurisdiction to grant'any form of interim relief. T have taken the view that when a judge in the High Court refuses leave to apply for prerogative orders, he thereby throws the matter out of the Court. It is true that the matter can be . Ar-• taken to the Court of &llpa.al - But where an appl i.cant goes to the \0 Court of Appeal, he is, as the SCP (1993) says, renewing the application for leave to move for judicial review, and I need l not o tJ..A.b a<ld that Court is vested with jurisdittion to deal with the A.,. matter. In the event, I have to sustain the Attorney General's objection and strike out the chamber summons. It is so ordered'. I have to confess that it has not been easy to come to that decision in complete certitude. . . :;·)<>:';:., .::;•,. ·· , .. . :\ji;it}>. .'.::: 'j" . .. • • •• # '· ........ , •• •.. -~ :, .. .. .. :.,.;·;.:::· .f,:, ... .- '~ . :••:.- ..... !.,;· . . ·: ~:":·;;~J}t: Indeed, more often than not, .

5 that is what happens when a court is faced with a difficult case of first impression. Delivered. Dr. Wambali (for Prof. Shivji) for Applicants Mr Mujulizi for 1st and 2nd Respondents. Mr Ngwembe for tha 3rd Respondent. D. P. Mapigano . .. ,'\ t .. ·.::-•:-.- .. JUDGE. 25/6/99 . . . . . ' .. . 10 .i;:;,::-·.:•::· ··.-·:···:·: •. :·

\ ., ··- - - ... 2 lo. ± am otished tho.t this :-:·,:;;::,e-1 is devoid of m2rit• Tusekile waq an du1t& ~ ;gic_:!.l:i.:v t-.; nnn ir.:::,di!l.g ho:i.l aka dt)en,de11t ii!e •. 1\s !uch+ she wos, in lo.w 1 ,'an:::.-:nr::t 1 )1C tot -".nd rcsponsiel. for 1 her own n.cts m'id wrongs. g:wing ri :··· J..;;gl. ohHc;::-..t io~. This would ::i.ceount Jor tha. :f.:ict the.t she wc,s st.: .: =--.--id hol-:.~ li::-.)le peramru.ly ♦ It e..ppe.::,.rs . that the trial. t , cive}..:.::·.::ld by- mo:r.c.1 Qbligtnons ng_ .Li,ly . . . . . ~ memberl. But a moral oblig:-.-: -m is not_ ,'1 leg::i.l o~ligotion whieh. ~uld I In .-J.l t.he circurnet:mce• I would -i,phold the ·district co.U"t•s dsdsion th.~t the sharril::a_ o! the responctent we. ~ngfull.;ia and inz-ly c.ta,chd. _ I_ ·aeordin.gly disni,ss_.i,thL "pe- in it.."?- ... _ 'l'-•espo-adt to hnve !ii-~- co5ts here and. in ~:-,,th~~ 'lle*_(lw,. AT MBEYA •

15 October 1999.

For Appellant: .,.-• For Respondent: Present .• -..1~~ (·., Present~ ,, -a. P. MOSHI, .roD..--;~ 1{:: ,."•:•·