Bernard Masaga & another v. National Agricultural anf food corporation & 3 others Civ no 177 of 2006

              

    IN THE COURT OF APPEAL   OF TANZANIA

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 22^nd day of November, 2006

in

Misc. CC. No.263 of 2004

RULING

18^th & 21^st December, 2006

MSOFFE, J, A.

        From the available record it is apparent that the applicants were ex-employees of the 1^st respondent. They were employed in different capacities. In the course of employment they were offered, and hence occupied, houses belonging to the 1^st respondent. In that capacity, they harboured, and they still have, a desire to purchase the houses. It is also worth mentioning here that the 1^st respondent is a specified authority by virtue of GN 326 of 1996.

        In the High Court of Tanzania at Dar es Salaam the applicants prayed for leave to apply for prerogative orders of certiorari, mandamus and prohibition. They had intended to apply for the following reliefs:-   

(a)        Certiorari – to move the High Court to make a declaration order that the acts of the 2^nd respondent to refuse to answer the 1^st 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 2^nd respondent to make decision in respect of the 1^st 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 3^rd 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 14^th 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 2^nd and 4^th 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 3^rd Respondent be restrained by an order of this Court from opening and or awarding bids of the Houses in dispute on 14^th December, 2006, at 3.00 p.m. as advertised in the Guardian and Mwanachi   Newspapers on  8^th 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 1^st and 3^rd respondents and Mr. Ngwembe for the 2^nd and 4^th 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  21^stday 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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