IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
CIVIL
APPLICATION NO. 177 OF 2006
1. BERNARD MASAGA
2. MERCHANT K. IKUNGURA
& OTHERS………….APPLICANTS
VERSUS
1. NATIONAL
AGRICULTURAL AND FOOD
CORPORATION
2. THE PERMANENT SECRETARY MINISTRY
OF
AGRICULTURE AND FOOD SECUURITY
RESPONDENTS
3. PRESIDENTIAL PARASTATAL SECTOR
REFORM
COMMISSION
4. ATTORNEY GENERAL
(Application for a temporary
injunction from the
decision of the High Court of Tanzania at Dar es Salaam
(Mihayo, J.)
dated the day 22nd
day of November, 2006
in
Misc. CC. No.263 of 2004
RULING
18th & 21st
December, 2006
MSOFFE, J, A.
From the available record it is apparent
that the applicants were ex-employees of the 1st respondent. They
were employed in different capacities. In the course of employment they were
offered, and hence occupied, houses belonging to the 1st respondent.
In that capacity, they harboured, and they still have, a desire to purchase the
houses. It is also worth mentioning here that the 1st respondent is
a specified authority by virtue of GN 326 of 1996.
In the High Court of Tanzania at Dar es Salaam
(a)
Certiorari
– to move the High Court to make a declaration order that the acts of the 2nd
respondent to refuse to answer the 1st respondent’s application for
the applicants to purchase the disputed houses under Government Circular No. 60
of 2003 denies justice, fairness and rights to the applicants.
(b)
Mandamus
– to move the High Court to compel the 2nd
respondent to make decision in respect of the 1st respondent’s application.
(c)
Prohibition
– restraining the
respondent from evicting the applicants.
In
a Ruling delivered on 22/11/2006 the High Court (Mihayo, J.) dismissed the
application. On 27/11/2006 the applicants lodged a notice of appeal against
that decision. Todate, the intended appeal has not been instituted in terms of
Rule 83 of the Court of Appeal Rules, 1979.
In the meantime, on 8/11/2006 the 3rd
respondent invited bids from the general public for outright purchase of the
above houses by virtue of advertisements put up in Mwananchi and Guardian newspapers.
The deadline for submission of bids was Thursday 14th December, 2006
at 3.00 p.m. when the bids were to be opened and successful bidders handed over
the houses. In the light of this development, on 9/11/2006 the applicants filed
an application in the High Court for a
temporary injunction in which they sought the court’s order for:-
“……….restraining
the Respondents, their agents, workmen or any other person from selling or
removing or evicting or interfering with
occupation of the applicants or harassing or molesting the applicants at suit
premises pending delivery of the Ruling of this Court …”
I
may pause here and say that the ruling referred to in the above quotation is
the one which, as already observed, was eventually delivered on 22/11/2006.
At this juncture it is important to make
two points. One, the
above
application for a temporary injunction is still pending before the High Court.
In other words, it is yet to be determined. Two, on 14/12/2006 the applicants submitted bids for purchase of
the houses as borne out by the undisputed averments under paragraph 5 of the
affidavit in reply filed on 18/12/2006 by Paul Joel Ngwembe on behalf of the 2nd
and 4th respondents.
On 11/12/2006 this application was
lodged ostensibly because following the decision of Mihayo, J. dated 22/11/2006
the application for a temporary injunction pending before the High Court has
been overtaken by events. Thus, this is an application for a temporary injunction
made under Rule 3 (2) and (b) in which the Court is moved to make the following
orders:-
(a)
The 3rd
Respondent be restrained by an order of this Court from opening and or awarding
bids of the Houses in dispute on 14th December, 2006, at 3.00 p.m.
as advertised in the Guardian and Mwanachi Newspapers
on 8th November, 2006, which
is the subject of the pending (?) appeal, until final determination of the
intended appeal originating from High Court Misc.CC. 263 of 2004.
(b)
The Applicants remain to
occupy the houses in dispute pending the outcome of the intended appeal.
At
the hearing of the application it transpired that the bids were opened on
14/12/2006 at 3.00 p. m. Hence, in the respective submissions of Mr. Bavaruga
for the 1st and 3rd respondents and Mr. Ngwembe for the 2nd
and 4th respondents, the application has been overtaken by events.
In response, Mr. Nyangarika for the applicants was of the view that the opening
of bids does not end the process because the bids are yet to be awarded to
anyone. He did not substantiate this latter aspect of his submission. In my
view, once the bids were opened the inevitable effect was that the process had
reached a stage where it could hardly be restrained. So, the submission by Mr.
Bavaruga and Mr. Ngwembe that the application has been overtaken by events is,
in my view, sound.
There
are yet other aspects of the application which are worth mentioning. As already
observed, this is an application for a temporary injunction in which the
applicants are seeking a restraint order for the opening up and awarding of the
bids in respect of the houses in issue. Yet, as stated above, they also put up bids for purchase of the houses! Surely, it
is a bit difficult to comprehend the sense behind the idea of restraining a
process in which the applicants are also interested parties and active
participants.
Yet
again, as already stated, this is an application under rule 3 (2) (a) and (b).
According to Mr. Nyangarika rule 9 (2) (b), a specific provision for a stay of
execution, could not be invoked because this is not an application for a stay
of execution. According to him, the
decision intended to be appealed against is not capable of a stay of execution.
With respect, it is not my intention to be drawn into deciding whether or not
the decision by Mihayo, J. is capable of a stay of execution. It will suffice
to say that in a sense this is an application for a stay of execution in which
the court is essentially being moved to stop a process which has a bearing on
the decision by Mihayo, J. If so,
ideally, Rule 9 (2) (b) ought to have been cited notwithstanding the suggestion
that the above decision is not capable of a stay of execution. In this regard,
rule 3 (2) (a) and (b) ought not to have been cited because there is a specific
provision in the rules for a stay of execution. As observed by this Court in Alliance Insurance Corporation Ltd. and
Others Versus Commissioner of Insurance and Another, Civil Reference No. 5 of 2005 ( unreported) restraint
or temporary injunction orders are not provided for under the rules. Since, as
already observed and if I may repeat, the objective here is to seek a stay of execution
of a process which has a bearing on the decision by Mihayo, J. it was improper
to invoke the provisions of Rule 3 (2) and (b) in filing the application in a
situation where there is a specific provision in the rules providing for a stay
of execution.
Without
prejudice to what I have stated above there is yet a very serious matter in the
application. While I agree with Mr. Nyangarika that it was probably a
typographical error to cite the applicants
as appellants in the application, it
is evident that the application supported by a notice of motion was lodged by
Bernard Masaga, Merchant K. Ikungura and Others.
Merchant K. Ikungura swore an affidavit in which he claimed under paragraph
I thereto that he had leave to represent the Others. As it is, no
information was forthcoming to show who those Others are, and whether there was leave granted to Mr. Ikungura to
represent them. In the light of the failure to disclose who those Others are, it will be fair to say that,
strictly speaking, there is no proper application before the Court in terms of
Rule 46 (1).
In
conclusion, the cumulative effect of what I have endeavored to state above is
that the application is incompetent. It is struck out with costs.
DATED
at DAR ES SALAAM this 21stday
of December, 2006
J. H.
MSOFFE
JUSTICE OF APPEAL
I certify that this is true copy of
the original.
S. M.
RUMANYIKA
DEPUTY REGISTRAR
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