Prince Peace Company v National Housing Corporation (Civil Revision No. 70 of 1998) [1998] TZHC 2552 (26 October 1998)

PRINCE PEACE COMPANY v. NATK )NAL HOUSING CORPORATION 373 by section 293 of the Criminal Procedure Act and he stated “ I will a testify on oath. I have one witness to call. ” A person who is insane at the time of trial would not have responded so. But that is not all, the appellant went on to give a lucid account of his side of the story and intelligently answered all the questions put to him. His answers b also showed that he understood and remembered all that the four prosecution witnesses had said either agreed with them or contradicted them as he deemed appropriate. We are satisfied that there was not an iota of miscarriage of c justice and so, we see no reason at all to order a retrial. Having said so, we must say that the guilt of the appellant was proved beyond any reasonable doubt. We cannot fault the learned trial judge in any way. We, therefore, find no merit at all in this appeal and we dismiss d it in its entirely. E PRINCE PEACE COMPANY v. NATIONAL HOUSING CORPORATION HIGH COURT OF TANZANIA F AT DARES SALAAM (Chipeta, J.) CIVIL REVISION No. 70 OF 1998 1 G (From the order of the Court of the Resident Magistrate of Dar es Salaam at Kisutu, A. Kabuta, Resident Magistrate, dated 16 Octoberl998) H Civil Practice and Procedure - Interim order - Whether court may grant an Interim Restoration Order where its jurisdiction is challenged - Section 68 and Order 37 of the Civil Procedure Code 1966. Execution proceedings were filed in the Court of Resident Magistrate from the decision I of the Regional Housing Tribunal in which the applicant had been declared the new

374 TANZANIA LAW REPORTS [1999JT.L.R. A tenant of the second respondent, the National Housing Corporation. In the course of the execution proceedings the first respondent was evicted from the suit premises and his belongings removed therefrom. The first respondent then filed an application for an order extending time within which to file objection proceedings. When the B matter came up before the Resident Magistrate counsel for the applicant applied to file a counter affidavit to which the first respondent had no objection. The first respondent then prayed for an interim order restoring him to the suit premises. Counsel for the applicant objected on the ground that he had already filed a notice of preliminary C objections one ground of which was that the court had no jurisdiction in the matter. Held: When an allegation is made that the court has no jurisdiction, and it is clear that the allegation cannot be dealtwith at once, such court has power to make any interlocutory orders in the matter before a decision is made on the question of jurisdiction D if such court is satisfied that such an order will protect the ends of justice. Order of the Magistrate upheld Statutory provision referred to: E (1) Civil Procedure Code, section 68 and Order 37 Mr Yustus, for the Applicant Mr Kalolo, for the first Respondent F Mr Mwiwasa, for the second Respondent RULING (Delivered 26 October 1998) G CHIPETA, J.: This is a ruling on the question whether an interim order made by Kisutu R.M.s Court on 19 Octoberl998 was properly made in the circumstances of the case. H The background of the matter is that in Dar es Salaam Regional Housing Tribunal Application Number 89 of 1.998, the tribunal declared Prince Peace Company (hereinafter referred to as the applicant) to j be the new tenant of the respondent in that application, that is, the National Housing Corporation (herein cited as the second respondent).

PRINCE PEACE COMPANY v, NATIONAL HOUSING CORPORATION 375 The first respondent in these proceedings, that is, Gems of Africa a Limited, were not a party before the tribunal. After the Tribunal ’ s decision, execution proceedings were commenced in Kisutu R.M. ’ s Court Miscellaneous Civil Cause Numberl28 of 1998, and in the course of the execution, the former tenant, who, it B is alleged, is the firstrespondent in these proceedings, was evicted and his properties removed from therein and kept outside. The first respondent then filed an application for an order extending time within which to file objection proceedings. c The matter came before A. Kabuta, R.M., on 16 October 1998. On that day, learned counsel for the applicant applied to file a counter affidavit. Learned counsel for the first respondent said that he had no objection but he prayed for an interim order restoring the first D respondent into the suit premises. That application was objected to by learned counsel for the applicant who said that they had already filed a notice of preliminary objections, one of which objections was that the trial court had no jurisdiction in the matter. E The learned magistrate granted the applicant ’ s application to file a counter affidavit and also issued an interim or interlocutory order restoring the first respondent into the suit premises. F Both learned counsels for the applicant and the second respondent were aggrieved by the interim order. Before this court, they submitted that the interim order was improperly made because one of the preliminary objections was that the trial court had no jurisdiction, and so that G court ought to have dealt with that question first before 'dealing with the application for an interim order or before issuing that order. Learned counsel for the first respondent submitted that the interim order was properly made and was within the provisions of section 68 and Order 37 of the Civil Procedure Code. H It is certainly true that where the question of jurisdiction of a presiding tribunal has been raised, such tribunal should determine that question speedily and at an appropriate time if the question is j disputed. Courts, however, have been vested with the power to make

376 TANZANIA LAW REPORTS [1999] T.L.R. A interlocutory or interim orders pending finalization of pleadings or the determination of matters in controversy between the parties. A court will exercise that power where it is satisfied that such an order is necessary to prevent the ends of justice from being defeated. E» When an allegation is made that the court has no jurisdiction, and it is clear that that allegation cannot be dealt with at once, such court has the power to make any interlocutory orders in the matter before a decision is made on the question of jurisdiction if such c court is satisfied that such an order will protect the ends of justice. In determining the question whether or not to make an interim order, the court will take into account the balance of inconvenience, the likelihood of injurty which is substantial and which can be or ought d to be avoided at the earliest opportunity in the course of the proceedings. In the instant case, the authorities cited by learned counsels for the applicant and the second respondent emphasize the fact that the question of jurisdiction is fundamental. They are not authority for E the proposition that a court cannot issue interlocutory orders before the question of jurisdiction has been decided. A court is free to make such orders in the course of the proceedings. In this case, the pleadings had not been completed; the first respondent ’ s properties were exposed to wasteand possible destruction; the applicant had not yet moved into the suit premises; and the question of jurisdiction had not yet been determined. In those circumstances, therefore, the learned Resident Magistrate was perfectly entitled to make the interim G order in order to prevent the ends of justice from being defeated or undue injury caused to any of the parties. For these reasons, the order of the trial court restoring the first respondent into the suit premises pending the determination of questions in the proceedings H in that court was properly made, and so it is hereby confirmed. I