Mohsin Mohamed Taki Andallah vs Tariq Mirza and Others (Civil Application No. 53 of 1998) [1998] TZHC 2235 (2 November 1998)

IN THF. HIGH COURT OF TANiANTA AT DAR ES SALAAM CIVIL APPLTCATTON NO. 1 OF 1998 MOHSIN MOHAMED TAKI ABDALLAH. TARIQ MIRZA VF.RS!JS ) ) .Pf.TTTTONF.R DEUSDEDTT KTSTSTWF. MOHAMF.D DAM.TT ) . ) ........ Rf.SPONDRNTS TJT,f. AND TlJH LTD REGISTRAR OF COMPANTF.S ) .R__U T, __ T __ N __ G KAT,RGF.VA. ,J .. Dissatisfied with the ruling of t.his co,n-1. (NsRlrnlr1,. ,T) .. which dismi.ssed their preliminary ohjAct.ions, the 1st and 4th Respondents filed a. not ice of Appe;:i l to the Court of App en l ,mo ->, ;, . ' proceeded t apply for copies of procee<1ings, r11ling an<1 orrler, which up to the time of this ruling ( AS pAr rAprei:rnnt.r1t ions m.::H1e by parties during the hearing of the mr1tter leading to 1·his ruling) the'same have not been supplie. Mr1ttArs bAing r1s they are the Petitioner applied to the court t.o hnve his Appl i c:At ton for temporary inj11nctjon heard, which prayer attract.ea a stiff ohject.:ion from RAspondPnt.s who c:ountArP.n t.hr1t ;:is t.rrnrP. is .:=i notice of Appeal tq thA Court of Apper1l t·his cn11rts' hr1nns ArR t.iP.n and cannot procef!d with such nppl ic:.tion. 'Phis nil ing is in respect of that. controvArsy. ·For clarity somf! h.::ir.kgrounrl to t-.hR whn·1 A i R!'HJP. is nP.cP.ssary. According to tbA recorns at. hand, thP PAtitinnAr\Applicr1nt, Mohsin Mohamed Taki Abdallah and thA 1st - 3rd Respondents (Tnriq Mizra, Deusdedit KikisiwA, Mohamed namji) formed a cnmpr1ny in the name of the 4th Repon<lent (Tile and Tnh Ltd) in 199?.. Their business went on undist.urhAd unt.il 1997 whP.n 1".hey fAll r1pr1rt. l

•.· f " Joint deliberations settlRd on an 11nderstanding, amnng others, ·· that the lst. and 2nd Respondents huy out. t.he Petit. i.nner from t.hB 4th Respondent. The terms, as well as whet.her thoRe terms were fu]fjl]ed are contested between them. The PRtitioner alleges tl1at not on 1 y were the terms not. c:ompli ea' w -if·. h but r1 l so t. he Respondents went further to fraudulently mr1nufar:t.11re a rlnc:mnP.nl which purports to show that. he had already transfered his shares. The Petitioner therefore urged this court for judgemFrnt an<'l decr.P.e against. RAspondents for, among othe1 :=;, 11 (a} A declaratory order that the p11rport·.P.d t.ri'lnsf P.r of the Petitjnner's shi'lre to the nd and 3rd Respondents is null. and void. (b) That this ....... c:ourt. he pleased to order the winding-up of the 4th Respondent. r:ompany". The Petitioner did not end there for he filed a chan1her sununons supported by_affidavit pr.r.iying for "(;:i) .X..P..r1: ('l'his wr1s her1nl rind clismii~s,:icl with ,li r·,.,<•1 ici11:.; t.hnt. the applir.at.ion sh011ld he hP;:it·fl 'TntP.rp;-1tl<~s'). ( b) TNTF.RPARTF.S l. That. t.his Honourable court. bP. pler1sen t.o i ss11P. i'I tP.mporary injunct.ion rest.raining t.hP. 1st_. ?.nd i'lnrl 3rd Respondents from moving or trr1nsfP.rring in any w;:iy the st.oc:k of the 4th Respondent. Comp;:iny hv locking up the showroom ;:rnd warehouse of the afor.ement i orn=id Comp;:iny si t.w=;it_P.rl on Plot Nn. 4 Nyerere Ror1d pending the hearing ;;incl oet.e rmi nr1 t·. ion of the Pet i_ t. ion. 2. That this Honourable Court. he plMtseo to i i:;i:::ue n t.empor.ary :injuct.ion restraining the 1st._. ?.nd rino 3rd Respondents from conduct.jng ;:ind\or mrinaginy thA affairs of the 4th Respondent Company pending the hearing and oetermination of the Peti ti.on". In response to the whole issue ;rnrl when the r1ppl i cr1t ion for temporary injunction wns about. t.o be hear.Ii t.he 1st. anr1 4t'.h 7.

...;, Respondents raised prel imi nrJry objections that_. "(a) That this Honour.ahlR Court has no j11r:i.s<li.ct.ion to entertain both the appl.icRtion for· temporary injuction and the Petition. (b) That the Applicant\PetitionAr hiis no locus :=;t.rrndi (c) That the Petitioner has no cause nf Rction against the Respondents". The court tackled the objections first whir:h were dismissed and this was followed by the lodging of the Noti~e of Appeal s already referred to. The Petitioner insists that let the appeal against the ruling proceed but that the application for· temporary injuction should meanwhile be heard and decided, whjch is heing vigorously contested by the Respondents. The only issue in this matter i.s whether in the circumstances this court can now proceed to hear and determine the applfation for temporary injuction. Having carefully considered the same I have arrived at the opinion that it can't. I purposely quoted above the prayers contained in the petiti.on; the preliminary objections and the prayers that are to be considered in the application for temporary injunction - j11st for clarity, by putting together the gist of the whole controversy. The Respondents.are contesting among others, the jurisdiction of this court and the existence of a cause of action. In the circumstances, would it he proper to proceed with the hearing of the application for temporary injuction when the main body on which that applicatj_on is hinged is being challenged in the Court. of Appeal? My simple answer is no. The matt.er for which the temporary inj11nction i.s being applied for is nn longer within the powers of this court but that of the Court of Appeal by virtue of the Notice of Appea]. already filed. On this I am treading on the guid,:=rnc:e of the Court. of Appeal of 'Pan?.iin i ;-1 in CIVIL REFERENCE NO. 25 OF 1997 ,· In U1e Matt·er of an Tntfrnc'led ' . 3

• . I · V Appeal between THE; NATIONAL INSURANCE CORPORA'l'TON ( Appl i r.nnt.) ancl KWEYAMBAH QUAKER (Respondent), Dsm Registry, unreported. In the abovecited case, following r1 rlisrnissal of his two applications - an applic-1t ion to set aside r1n exp;:irtA j11<'lgAmeni-. and stay of execution, the applicnnt file<l two applications, namely, an application for extension nf tin1e to prP.sent a fresh application to set aside th?. expart.e j1JclgP-me11t anrl afresh application for stay of execution. A wP-ek L=iLP.r the applir.rint. employed another tactic, for, he longed a notice of AppP.al against the exparte judgernP-nt. Again, shortly therP-after, the applicant's Counsel approached the Hi.gh Cnuri". with a certif.icr,1te of urgency urging for ear 1 y he.:n .ing of the two ;::ippl i cat.inns_. adding that he was withdrawing the appeal. R1fon the Collrl of Appeal, the argument, among others was whethP-r the High Co11rt could proceed with the heriring of the two applicationR whi.le the not ice of Appeal subsistecl. 'l'he Court of App ea 1 r1 f tP.r ho 1 rl i ng that the notice could not be removed hy the High Court a]sn decided that once there j:=; such notice the matt.er is removed from the High Court unto the r:ourt of Appe.:=il. 'l'he Court hel<'l, "'l'here are therefon~ two issue:=; for cons i clP.r.:=it.ion and determin;::ition, that is, whether a nnticP. of Appeal removes a case,from thA High Court t.o the Court of Appeal and ............... beginning with the fi.rst issue, we have no hestation .:=inswering it in the positive, and for these reasonR. First of all., as pointed out by the Learned single judge, .:=i not.ice of ;::ippeal, is as per Form n, ins ti tut.eel 'Tn the C:onrt. of Appeal of 'fanzani..:=i' .- and t.hi R in our vi P.W, means that the notic~ is r1.ddressed to the (;n11rt. nf Appeal We are satisfied having regard to these fr1ctors, and agree with Kisanga, J.A, that a notice of Appeal has the effect of removing a case to the r'.ourt of Appeal". In that case, the Counsel for the applicant also argued that· notwithstanding t.he lodging of a notice of r1ppP.al the High m;:iy 4 .. _ ....

- st.ill deal with the mat.t.t=ff r1nd cited the qnestion of gnrnting leave or decidi.ng on the existence or otherwise of n point nf law. The Court of Apper1l nF-pondecl r1s unsJHr·, 11 ••••••• The provision is merely proce<'l11n:il Ann its pr imr:1ry purpose .i. s to provide thr1t r1 notice nf r1pper1 l can he lodged before ler1ve to r1pper1l or a certificr1te on a point of law is obta.i ned: cf. Mnt.el _ _schwei tzer v T •• E. G_unni,noha'!' __ ~ __ Anot.her, (1q~~) 7.?. F.ACA ?.!1?.,. ?.4. The rule takes into ;:iccount thR frict thr:1t it involvei=; r1 process, which invariably spills i_nto weeks and months to obtain leave to appeal or to nhtr1in a certificr1te on a point of law, whereas a notice nf appeal has to he lodged within fourteen days of the decision against which it is desired to apper1l. T!:i..!':.. __ ,:r_11-J __ does not. __ purport. to brina hack for t.hP. {ltt-ti on of thP. Hi__gb Court p ____ mat ter __ _gJ,ready .l>f.Q!:.!LJt!~ . (:_c:>J1_rt ___ o._f _Anneal 11 ( en10h;:i sis mine). Tn the circumstances thenfore, the RespnndP.nt.s nrgument is sound. Tey are saying that therP. sho11ld he no case r1g;:iinr-;t them 1(;,r .- ' , ., , c _ in this court. This' court decided that the case is properly filed . ~ before it. The Res~ondents are chrillenging this hefore the Co11rt of Appeal. They are; challenging the whole decision hence evP.rything has been TP.moved unto the r.011rt of Appeal. Whr1t· then can be said to have r.ema ined wi .. th th j s con rt nn wh i r.h the application as the one at. hand can he based? T see nothing. For the clear reasons disc11ssed nhove the ;:ippl i cr1t ·inn hy the Petitioner that the appl i cr1tion for temporr1ry injunction shoul cl be heard by this court is dismissed. (T.. R. K.:=ilegeyr1) ,TUDGF. DelivP.red in the presence nf Mr. Msemwa, MisA Sheikh and Magafu. AT DAR ES SALAAM 2ND NOVEMBRR, 1998 [ l certly lhat this 15 11 ir 1J) of lbc Ur /J 5 ( r.. R. Ka legeyri) ,TUDGF.