Omary Mgeni vs Mohamed Hamid (Civil Appeal No. 145 of 1997) [1998] TZHC 2212 (19 June 1998)

,., \ -f'.·mr--.r., ......... --;'I : .;;:- ., . \ ...... ,- 4.~ ,· . :,,:-:1t~~:~41 :,:.:,, .. , ... ,',11:.-..-..:·. ,.,- , : . ·L . . : , :..,··.· : ... _; \ IN 'I'll ,UGH CuUiT OF 'rANLiilJ'UA (DAH ES SALA..J1 DIS'I'RICT PGISTRY) AT DAR ES SALAAM CIVIL A?PEAL N0.145 OF 1997 OHh.RY MGBNI • ■ 00•000000000••00•0000•000000•0 Versus MOP...:.HJ.;D IL-'.M:ID ■ o ■ ooooooo•o•ooooooo ■ ooooeooo ■ ·RU L' I N G CI:iIPETJl.., ,J. : APPELLANT RESPONDENT T}1e n.pplicMt, Omari Mgeni, filed an appeal in this court \ against a de~ision of the Resident Mc1gistrate 9 s Court of / Dar es Salaam at Ki vukoni. MeD.nwhile th-2 applicant filed this application• in which he seeks an order of temporbry injunction restraining the respondent in the pending appeal from e;,-icting him from a house which is the subject rn::i.tter of the nppeal. The applicotion has been brought under Order 37, Rules 1 and 2; and sections 68(c), (e), o.nd S5 of the Civil Procedure Code. In his written submissions, learned counsel 'for the respond,~nt submitted thn.t the ap1--1licn.tion was incompetent in that this is an appeal and not a suit, and that what tre applicant ought to have done was to file an· application for stay of execution under Order XXXIX, Rule 5 of. the Civil Procedure Code. In his written submissions in reply, learned counsel for the applicant conceded that the application was defective but, in C ___ /}1,S_e his submission, the defect is curable in that the court anLJJ,JS inherent powers under section 95 of the Civil Procedure Gode o.nd grant the relief prayed. Without labouring the point, an application for an arder of temporo.ry injunction is not the se.me as an application for

2 stay of exc:cution, and the provisions governing the two matters are ~lso different. Reliefs not f0unded on pleadings will usu:llly not be gronted. As for the application of section. 95 of the Civil Procedure Code, there :i.s a plethora of authorities to the effect that inherent jurisdiction of the court conferred by section 95 of the Civil Procedure Code must be exercised subject to te rule th·::t if the Code contains specific provisions whid1 would meet the necessities of the co.se in question, such provisions should be followed and the inherent jurisdiction should not be invok•3d. In other words, a party cannot seek remedy under this secti·on if th,'J Code .contains specific provisions for a remedy sought nnd the p:.rrty neglects to avail himself of it. (S:!e Jooma and Jo.f_er Vo Bhnmbra'I (1967) E.Ao 326; and Ahmed Hassan Mulji v. Shi£.bhai Jado.vji, (1963) E.A. 217). In the insta.t case, ns pointed out above, there ara specific provisions in the Cod·e provic.ing for a remedy · :sought by the opplicant and the applicant has neglected to avm 1 himself of those provisiono He, therefore, cannot seek refuge under the provisions of section 95 of the Code. For these reasons this ppliction is incompetent and so is hereby struck out with no costs. B. D. CHIPTA JUDGE Ruling delivered in Chambers this 19th day of June, 1998 in the presence of the parties, ruid Mr. Lebbn for applicant Mr. Mbuya for Shuyo for respondent., B. D. CHIP ETA JUDGE 19/6/1998