ugustine M. Emanuel and others vs Shirika La Usafiri Dar Es Salaam (Misc. Civil Cause No. 114 of 1997) [1998] TZHC 2208 (6 August 1998)

--,··· .. , .. ·.J'• .,. r} ,/ 1 \ J IN THE IDGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 114/97 AUGUSTINE M. EMANUEL & OTHERS ...................... APPLICANTS Versus SHJRIKA LA USAFIRI DAR ES SALAAM, LTD RULING KALEGEYA, .J. Deo_watias Bakinahe, Othman R. Bambati, Ally Y. Mtambo, George Chambai ' and Augustino Emmanuel filed 2 Misc. Civil Applications before this Court which were assigned Nos. 111 of 1997 and 114/97. In Misc. 111 of 1997 they applied by 'l.K-- way of chamber summons supported by affidavit for leave to file presentative suit on . A their behalf and 8:::J others. The Applicants and the 84 others had been subject of retrenchment by the Respondent: Shirika la Usafiri Dar es Salaam Ltd. In Misc. Civil Application.No. 114/97 they prayed for temporary injunction to restrain Respondents from : (a)- disposing of any property of the Corporation (b) evicting the applicants and others from residential premises which they occupied in their capacities as employees of Respondent. For both prayers they submitted that they should subsist till the " intended representative suit preferred by the Applicants under Misc. Civil Application No. 101 of 1997 has been heard and determined by the said Court". The two applications came to be consolidated and the prayer for a Representative suit was granted on 29/10/97. Parties then argued, by written submissions, on the other part; tefporary order to restrain disposal of Respondents property and from evicting applicants. In Summary, the Applicants argued that if the prayers are not granted they would suffer an irreparable loss, and that they are aggrieved and are challenging the way the redundancy exercise was conducted and their benefit dues computed. They

2 went further to concede that this is an unusual application as there is no suit filed yet. Although the chamber summons are entitled as having been brought under 0.37, Rule 1 (a), l(b) and 2(1) of the Civil Procedure Code and other enabling provisions of the law, they specifically point out that they are claiming protection under the inherent powers of the Court. They argued that 0.37 CPC is not exhaustive and cited Sarkhar's Law of Civil Procedure, Eighth Ed. Page 1427. The Applicants were represented by Semgalawe, Jundu & Co Advocates while Kariwa, advocate, represented Respondents. In reply Mr. Kariwa advocate, in a commendable argument, I may say, argued '·=----<-;, that the inherent powers of the Court under S.95 CPC and referred to by Sarkhar already referred to can only apply where there is a lacuna; that where there are specific provisions under the code they can not be involked. Mr. Kariwa cited Rawal v Mombasa (1968) E.A 392; Mulji v Shivimbai (1960) EA 217; Adoma v Motekanga (1970) EA 429 and Lyan Investment v USA (1970) EA 678. He insisted that the present situation is covered under 0.37 CPC and the applicants can't go under cover of the Inherent Powers of the Court for their failure to file a proper suit. J Launching an attack from another angle Mr. Kariwa, citing NBC v Dar es Salaam Education Stationery. Civil Appeal No. 16/95 (Dares Salaam Registry, unreported) insisted that the Applicants can't be heard on an application to maintain a status quo because the status quo would invaluably be the one subsisting before the filing of a suit but that there is no suit hence such application is untenable. Citing Atilio Mbowe (1969) HCD 284, Mr. Kariwa insisted that the Court will have no base on which to peg the consideration of the three prerequisites for granting of temporary injunction- the presence of triable issues with a probability that plaintiff will be entitled to reliefs sought; that the Court's interference to protect irreparable injury that may be occasioned before the establishment of the legal right, and that there would be greater hardship and mischief on the plaintiff's part than on the defendants if order is not granted.

I \ ) ) 3 Finally, Mr. Kariwa charged that though the applicants are making the applications for the purposes of staying in the premises they occupied by virtue of their service contract with Respondent they can't succeed because, the legal position as pronounced in Dan Kavishe vs Arusha International Conference Centre, Civil App. No. 1/1987 (CA, Arusha Registry, unreported) is that service tenancy ceases with termination of the contract of service, and quoted part of the decision as under, " it would be anomalous to have a tenant residing in his employers premises without offering him his services and above all when the employer had shown by his conduct that he no longer needed his services and had washed his hands completely off him". Now, turning to the issue at hand, although the Applicants relied on inherent powers of the Court, as rightly argued by Mr. Kiriwa, this is not the situation where the said powers can be employed. Page 1427, of Sarkhar's Civil Procedure, relied upon by Applicants, talking on the Code which is almost similar as ours, provides, " Injunction under Inherent Power - In many cases it has been held that 0.39 is not exhaustive and apart from it the Court has ample power to issue injunction ex- debits justitiae for protection and security of the subject -matter of suit or to prevent multiplicity of proceedings. Before an order of injunction in exercise of inherent power is passed the Court must be satisfied about the three tests: (i) prima facie case; (ii) irreparable injury; and (iii) balance of convenience. cFor grant of temporary injunction, there must be three essential ingredients i.e. the existence of a strong prima facie case; the balance of convenience in favour of grant of injunction and likelihood of irreparable injury if it was refused."

. ' I . 4 The position in India on this matter is not different from ours. The powers under S. 95 CPC cannot be invoked when there are specific provisions in the statute dealing with the same. As was stated in Connelly vs OPP (1964) 4 B C. APP. Reports 183 at 2061 approved by the Court of Appeal for East Africa in Rawal v Mombasa Case cited by the Respondent, " ... powers to pass orders ex-debits i.e. passing order without being tied down by the rules, they are powers inherent in Courts by their virtue of their role to do justice they are not controlled by the code, but they may not be exercised when their exercise will be in conflict from what has been expressly provided under the code. These powers are exercised when there is a lacuna in the code". Such powers can only be used to fill in the lacuna or gap left in the law as observed in various authorities both local and foreign. Now applying this law to the present facts can we say that there is a gap or lacuna gapping out to aid the Applicants? I see none. It is not surprising that even themselves, and defended, were not sure of the ambit of their application, for they cited order 37 CPC in their chamber summons only to vacate it immediately thereafter! I have seriously asked myself whether the use of inherent powers could be available to them, at least temporarily, in a situation where for the exigency of the situation, and where for no fault of theirs there is failure to secure the prerequisites for employing the provisions of S. 37 CPC in time while at the same time there is real looming danger of their probable rights being gravely affected, a situation where their application to file a representative suit would still be pending while at the sametime there is a real threat to dispose of the property and evict them from the houses. Such situation would be tricky as indeed there would be no suit on which the normal application for temporary order would be pegged. The di,gJ'ss notwithstanding, in dealing with the facts at hand, there is no need of discussing that hypothetical situation. In our case the application for representative suit was allowed

' \ J s over one and half months before this application was argued and if they wished they would have filed one by now but they haven't. For them, clearly there is no threat to them; there is no urgency whatsoever, and the Court cannot justifiably employ a short cut mechanism for them as 0.37 CPC would amply have come to their assistance if they had acted as required and so wished. As was stated in Siskina (1979) AC 210, which principle has been held correct in our jurisdiction, " ... A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the Court The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action." Having so concluded, while appreciating his endeavours, there is no need of dwelling on other forceful arguments presented by Mr. Kariwa The Applications stand dismissed with costs. Kalegeya Judge LB. KALEGEYA JUDGE