Tuico- Ottu Union vs NBC (1997) Ltd & Others (Misc. Civil Cause 11 of 1999) [1999] TZHC 11 (25 June 1999)

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM MAIN REGISTRY AT DAR ES SALAAM MISC. CIVIL CAUSE NO.11/1999 (1) TUICO - OTTU UNION APPLICANT (2) AUGUSTINE CELESTINE VERSUS (1) NBC (1997) I,TD...... 1ST RESPONDENT (2) PSRC 2ND RESPONDENT (3) ATTORNEY GENERAL 3RD RESPONDENT MAPIGANO, J: The preliminary point of law which has been taKn by the L/ Attorney General in opposition to the applican~~' chamber summons is an interesting one. In the chamer summons the applicants seek an order for interin. relief pending the hearing of an appeal which they intend L~ prefer to the Court of Appeal against this COUl~'S refusal to grant leave to them to apply for prerogative or~qrs. 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 collateral matters 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, Cap 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. 22/7/1920. He is also right in saying that any form of interim relief. Reliance is placed upon the Supreme Court Practice [1993], para 53/1-14/24, which was cited with

3 another, [1993] 3 All ER S 37 at 565; and on the comment made by the learned authors of Hulla on the Indian Code of Civil Procedure, 14th ed. p.2136 para 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 Misc. Civ. Cause No.5 of 1995 of the High Court Main Registry. 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 at one point in the course of his ruling the judge happened to quote the paragraph in the SCPo [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 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 reliefs is concerned there is no distinction in principle between an application for leave to move for jUdicial review and

the matter out of the Court. It is tl'ue that the matter can be taken to the Court of Jcny~' But where an applicant goes to the application for leave to move for judicial review, and I need not tJ..-cLb add that Court is vested with jurisdiction to deal with the "'"