Tuico-Ottu Union and Another vs NBC (1997) LTD and Two Others (Misc Civil Cause No. 11 of 1999) [1999] TZHC 525 (25 June 1999)

306 TANZANIA LAW REPORTS [2000JT.L.R. a TUICO-OTTU UNION AND ANOTHER v. NBC (1997) LTD AND TWO OTHERS HIGH COURT OF TANZANIA B AT DARES SALAAM (Mapigano, J) c MISC. CIVIL CAUSE No. 11 OF 1999 Administrative Law - Prerogative orders - Interim relief - Application for interim relief pending intended appeal against refusal of application for leave to apply for Judicial Review - Whether the High Court may entertain such D an application for interim relief. The High Court refused to grant leave to apply for prerogative orders. The applicants then filed a Chamber Summons seeking an order for interim relief pending hearing of an appeal which they intended to prefer to the Court of Appeal against the High Court ’ s decision refusing leave to apply for prerogative orders. The issue was whether, having refused such leave, the High Court had jurisdiction to grant the interim relief. Heid: Once the High Court refuses an application for leave to apply for prerogative p orders the matter is thereby thrown out of the court and the court becomes functus officio with no jurisdiction to grant any form of interim relief in the matter. Application struck out Cases referred to: G (1) M. v. Home Office and another [1993] 3 All ER 537 (2) Vidyadhar G. Chavda v. Director of Immigration Services and Two others [1995] T.L.R 125 JJ Statutory provisions referred to: (i) Judicature and Application of Laws Ordinance, Chapter 453 Dr. Wambali/Professor Shivji for the applicants I

TUICO-OTTU UNION AND ANOTHER v. NBC (1997) LTD AND TWO OTHERS 307 Mr. Mujulizi for the first and second respondent A Mr. Ngwembe for the third respondent RULING B (Delivered 25 June 1999) MAPIGANO, J: The preliminary point of law which has been taken by the Attorney General in opposition to the applicants ’ Chamber c Summons is an interesting one. In the Chamber Summons the applicants seek an order for interim relief pending the hearing of an appeal which they intend to prefer to the Court of Appeal against this court ’ s refusal to grant leave to them to apply for prerogative orders. The d 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 collateral matters E which have cropped up during counsel ’ s arguments. First, Professor Shivji, counsel for the Applicants, is right in saying that the source of the jurisdiction of this court to entertain applications for prerogative orders is the Judicature and Application of Laws Ordinance, Chapter f 453, which imports into Tanzania the substance of the Common Law, doctrines of equity and statutes of general Application in force in England on the reception date, i.e. 22 July 1920. He is also right in saying that in regard to procedure such applications are not governed G 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 to the Court h 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 jurisdiction to grant injunctive relief pending the hearing of an application 1

308 TANZANIA LAW REPORTS [2000]T.L.R. A 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 B 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 c no jurisdiction to grant any form of interim relief. Reliance is placed upon the Supreme Court Practice (1993), paragraph 53/1-14/24, which was cited with approval by the House of Lords in the case of Mv. Home Office and another (1) at 565; and on the comment made D by the learned authors of Mulla on the Indian Code of Civil Procedure (14 ed) page 2136 paragraph 3. Reference has also been made to the decision of Samatta, JK, as he then was, in the case of Vidyadhar G. Chavda v. The Director of Immigration Services and Two others E (2). I should however point out, with respect to Mr Kamba, that the issue before the learned judge in that case was whether this court has power to grant an interlocutory injunction before hearing an application for leave to apply for a prerogative order. It is true that F at one point in the course of his ruling the judge happened to quote the paragraph in the SCP, (1993). But I think there is no one except the judge himself who knows for certain whether he subscribed to the view that the court has also the power to grant interim reliefs pending appeal to the Court of Appeal once it has refused leave to move for Judicial Review. On his part Professor Shivji takes the opposite view. It is his contention that the court is not functus officio and that in appropriate H circumstances the court can properly resort to its inherent jurisdiction and grant interim reliefs even where it has refused leave to apply for the orders. He has cited several authorities to support his proposition. Professor Shivji submits that in so far as the grant of interim I reliefs is concerned there is no distinction in principle between an

TUICO-OTTU UNION AND ANOTHER v. NBC(1997) LTDANDTWOOTHERS 309 application for leave to move for Judicial Review and an appeal against a refusal of such leave. In each case, the says, the purpose is to preserve the status quo in order to ensure that if 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 mere barren success. It should be realized that all the cases cited by Professor Shivji were civil proceedings. It seems to me that there is 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 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. I 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 taken to the Court of Appeal. But where an applicant goes to the Court of Appeal, he is, as the SCP (1993) says, renewing the application for leave to move for Judicial Review, and I need not add that that court is vested with jurisdiction to deal with the 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. Indeed, more often than not, that is what happens chen a , Court is faced with a difficult case of first impression.