Shaku Haji Osman Juma vs Attorney General and Others (Misc. Civil Application No. 1A of 1997) [1999] TZHC 473 (26 February 1999)

IN Tlili HIGH COUhT OF TAli'..ANIA AT TABOliA ivUSC. CIV. .kPPLICATION NO •. (Arising from Civil Case No. 1A of 1997) SHAKU HAJI OSl'i.lAN J-UMA ·• • • • • • • • APPLICANT vus

1. T~ ATTOk.N~'Y GENEli.AL
2. !iliGISTEH.ED TKUST.&!;S 01'-. BAH.AZA 1.1.JU LJi JUl'-mI":tA NA TAASISI t..A KIISLJUvi T.Al'tL.AltlA
3. .ADivffNISTHATOh. GKN.t!l<AL OF ThUS1'.&i:ill • • liliSPONDcl"TS h.ULING ON Pttl!:Lilv'1INAh.Y OBJ:b;CTIONS Mr. H.ugor.zibwa Thio:phil Sephurin l'iujunangoma, learned cou..; nsel for the first and third respondents, has filed two preli- minary objections to this application by Mr. Mtaki, learned counsel;.! for the applicants, in the application for a temporary injunction. Ii'irs Mr. Mujunangoma submits that as the Attorney General and the .Administrator General are not parties to the original <.·suit, a temporary injunction, cannot be i.Rsgd against them. He cited Order XX.XVII hule 1 o.f the Civil Procedure Code and the case of Attorney General v. ,l•iaalim Kadau and others Civil , ....... --·-·-··----·-·-~,--··-- . ·-- .. . _____________ -· ·--··-- --- ..... -·•··----- ·- Application N~.51 of 1996 (Court of Appeal) in his support. The secoiid objection if'> that this matter is .res _ judicata as it was dealt wth in application No.12 of 198. ·, In reply Mr. Mtaki submits that this application is filed under. gr_der £10- VII read together with . section 95 .. of .. the Civil . Pocedure Code. As for. Judicata Mr. Ntaki submits that in 9:1-v~,Application -~~o-~:t}j~~~ they had applied for Orders of Elap.d~:t:J:- and .. , c.-~~!-.<?!:~!'.i · and the court ordered specificaly · that the matter be dealt with by way of an application for temporary injunction. Let me !irst deal with the second objection. That is that the matter is res judicata. This matter is not res judicata • .... ----- ___ ,, I t

' J i' .. 1 2 The application for orders of .9~.!'.<?E~-~~ and <:1!.ld8:m.~~- was dis- missed as +,here are other means 0£ seeking redress available to the applicant. The Court in Civil Application No.12 of 1998 cited application for a temporary injunctions· as one ·-6:f the· . -·-- -alternative remedies. So the second objection is overruled. As for the first objection, .I ?,gree with the learned · counsel for the first and 3rd respondents that under rlrder XXVII ___ Rul_ 1 __ of __ the __ Civil ... Procedure. Code .. 1966 a tempoary injunction can not be insued against someone who is not a party to the main suit. But Mr~ Mtaki, learned counsel for the applicant however, submits that this application is also brought under s. 95 of the Civil Procedure Code. Both learned •••••-••-•'-''"•--•-••• .... • • •-•- __ . .,,. .. ,, ,.,.,.•-••-••'•"'----••-• • -••••••••• ••• ••• ,,...,.. ,...,,,.,, ••• •-••-••••--••v• counsel cited the gol:E __ 9_f_ pp_c:_l case of the -~ 1:_½::}.' __ -~~~E_al v. 1v1aalim ____ Kadau & __ oters, supra, whose relevant part is: "In the ruling, ·the learned judge sets quite correctly the legal-position regarding the is;suance of a temporary injunction against the government. He states that the appli- cation could not be granted under drder XXXVII of the Civil rocedure Code 166 because T.he government was not a party yet to Civp. Case No.12 of 1995. The learned Judge also considered the Government Proceedings Act 1967 as am.mended by Act No.30 of 1995 which provides for a period of three months before the government c·an be made a party to proceedings. So, he took the view that irreparable damage would be caused to the respondents (then applicants) if the court were to wait for three months before issuing the injunction order The application was thus granted by invoking section 95 of the Civil Procedure Coie. we must at once point out that this was a misappliaation of this section •••• It is trite knowledge that the inherent powers of the court provided under this secion of the Civil Procedure Code are invoked in situations where the court has authority or jurisdiction to deal with the matter ckd there is no specific provision of the law in placeD

3 Where as in this case the court has no juris-· diction or authority an,.d there are express provisios of the law as was the case lwre, which provisions were elaborately set out by the learned judge it was an error on the part ~ L-.:1 o:f the learned judge to invoke such powers •• ". Learned counsel had different interpretations o:f the above quoted passage of the Court of Appealo Mr. Mujunangoma, for the respondents, argues that section 95 is only applicable where there are no specific provisions of the law to deal with the matter. He states that Order XXXVII hule 1 of the Civil Procedure Code provides the E",peci:fic provisions. l"Jr. Mtaki, for the applicant, on the other hand, sbmits that the court of appeal quashed the trial judges injunction because he had no jurisdiction over the whole applica±ion. I tend to agree with Mr. Mtaki's interpretation. Contrary tolr. i 1 lujunangoma I s contention, Order__).llVII Kule 1 ___ does not provide specifically :for a case like this one where someone: wJ;io is not a party to a suit tempers with or tries to alienate property which is the subject-matter of a pending suit. Section 95 of the Civil Procedure Code 1966 provides: "Nothing in this code shall be deemed to limit or otherwise af:fect the inherent powers of the court to make such orders as may be necessary for the ends o:f jus- tice or to prevent the abuse of the pro- cess of the court .. " In Mulla, The Code of Civil Procedure, Twelfth :t!;dition p.1007 ,!I ____ ,__ .-- .• -. - . --~~---.---.-·-·•-···"' -· is cited the case of Manohar Lal v. Seth Hira Lal (1962) Supp. --·- -•- -"-••- ... ------- .. ------------•-•-• ... - .. ••·•-M ... •-r--• __ , .. _, _______ ·- ......... ,-,-,-• (1) s.c.a. 450. (1962')' ..i-..S.C .. 527 where it was held that the ________________ ,. ____ ..,, court has powers under section· 151 (Bquivalet to our s.95) to issue injunction in cases not £aling within Order .A..lO'..VIX kule 1 and 2 (equivalent to our Order X.:X:XVII Kules 1 and 2 of the Civil Procedure Code. A temporary injunction can be issued not only under Order XXXVII, but also under s. 195 of the Civil Procedure Code. So these objections are overuledJlith costs. L.~,. \ JUDGE 26/2/99 I I I ' .