Tuico Ottu Union and Another vs NBC (1997) Ltd and Others (Misc. Civil Cause No. 11 of 1999) [1999] TZHC 85 (25 June 1999)

T . 1 I MAPIGANO, J: IN THE HIGH COURT OF TANZANIA. 'DAR ES SALAAM MAIN REGISTRY AT DAR ES SALAAM MISC. CIVIL CAUSE N0.11/1999 {1) TUICO - OTTO UNION ...... APPLICANT (2} AUGUSTINE CELESTINE ·VERSUS

(1) C (1997) LTD ...... 1ST RESPONDENT ) (2) PSRC .. .............. 2ND RESPONDENT (3) ATTORNEY GENERAL .... 3RD RKSPOKDEKT RULING . \0 The preliminary point •of law which has been takn by the i../ ·· Attorney Generali~ opposition to the applicans• chamber summons is an interesting one. In the chamer summons the applicants seek an· order for inter in, relief 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 orrs. The Attorney General contends that having refused such leave this Court is functus officio and has, therefore, no jurisdiction to grant any form of interim relief. To start with, I will say a few words about some collate·:ra-'.t:·:·· matters which have cropped up during. counsel's arguments. FirJ·if; · Professor Shivji, counsel for the applicants, is right in saying/ .. that the source of the jurisdiction of this court to entertain _:.?:t' •:., ... t \ . ·.'_.;·-/l. : . \ ·. ,;:J : .. . .. • :.., .. ;"'.,, .. ..... :· . .. :::-:· :_,Wiftlt .,ir·:..·~-. ~- ·,:• -: ,~l· 0--------------J

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, doctiines of equity nd statutes.of general 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 applications 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 Court has granted such· reliefs it has done so by invoking its inherent jurisdiction. Thirdly, this Court has consistently held that it has also inherent jurisdictioh-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 qf 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 ad has no jurisdiction to grant any form of interim relief. Reliance· is placed upon the Supreme Court Practice (1993], para 53/1-i4/24, which was cited with approval by the House of Lords in the case of H v Home Office and lO -- . ' ..

',> ( 3 another; (1993] 3 All ER's 37 at 565; and on the comment made by th~· learnerl authors of Mulla on the Indian'code of Ciil Proc::edtlre, 14th ed. p. 21.36 par;:i 3. Reference ha8 also heen m,:1de to the decision of Smatta, JK, as he then was, in the case of Vidyadha~ G. Chavda v The Director of Immigration Services and two others Misc. Civ. Cause No.5 of 1995 of the High Court Hain Registry . r should however poiht out, with respect to Mr Karnba, . that ·the i.ssue before the learned judge in that case was whether this•court has power to rant an interlocutory injunction before hearing an applicati9n for leave to apply for a prerogative order. It is true that at one poirit in the course of his ruling t-.he judgA hAppened to quote the paragraph in the SCP .. (1993]. Rnt I think there is no one Axcept thP. j11c:lge himself who knows f<)i <er:-t.A in 1:11het.her he s11l)s<::r.il)ecl to the· view that. the Court has also the power to grant intArim teliafs penrting appeal to the C-:011r t of Apper1 l onr.e it has nfused leave to move for judicial On his part Professor Shivji takes the opposite view. It is his contention that the Court is not fimctus officio and th.:=tt in approptiate circumstances the Cburt can properly resort.to its inherent juris<liction and grant. interim reliefs even where it has refused leave to apply for the orders. He has cited sveral authorities to support his'proposition. ·Professor Shivji submits that in so far ·as the grant of jnterim reliefs is toncernea· there is no distinction in principle between an application for ieave to move for judicial review and ... -:.·•.~-.- .. • I' •• •• ~-, ... •r.,,.,. \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 j_f the application for the orders is granted, or if the appeal succeeds, the applicant or the appellant, as the case may be, does not obtain a ere barren success. It should be realized 1 that all the cases cited by Professor ... Shivji were civil proceedings. It seems to e that there ii no judicial pronouncement on the point raised by the Attorney General in Tanzania and that, therefore, the present case is one of first impression. I have giin the matter sufficient consideration and I have preferred to go with what the ·scP (1993) says, namely, that if a judge at first insance 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 rnnt:ter out of the Court. Tt is l".nJP. t.hr1I t.h mrtt.l.er can IJ~ taken to the Court o~ j&• But where an applicant goes to the 10 Court of Appeal, he is, as the SCP (1993) says, re-newing the application for leave to move for judicial review, and I need not '210 ~ . add that Court is vested with jurisdiction to deal with the A; matter. In the-event, I have to sustain the Attorney General's 9bjection 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. Indeed, more often than not, I ' .. :·fi~t ~ ·.·,- .. ~~.:-.1., ...... ~-·t .. >:· : .. :; . ; ~ . .-.-t,=,,t::.: --: ••, ... , ... .· ':,,i·.:f~/ .. :-. ·., : :~: - .. : .- ~ . . '. ·:·~rr /t? · . .. :., ... ' i I .,

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 the 3rd Respondent. D.P .. Hapigano JUDGE. 25/6/99 ,o