TAHFIF MINI SUPER MARKET v B.P. TANZANIA LTD 1992 TLR 189 (CA)

 TAHFIF MINI SUPER MARKET v B.P. TANZANIA LTD 1992 TLR 189 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Ramadhani JA

G

24 July 1992

Flynote

Court of Appeal Rules - Appeals - Appeal to the Court of Appeal - Whether leave of

the High Court always necessary.

Civil Practice and Procedure - Temporary Injunction - Material considerations for its

H grant.

-Headnote

The applicant unsuccessfully applied for a temporary injunction in the High Court of

Tanzania. He had filed a notice of appeal against that refusal but meanwhile he filed a

notice of motion for a temporary injunction. Before hearing the application, the I

advocate for the

1992 TLR p190

RAMADHANI JA

respondent sought to strike out the notice of appeal on the ground that the applicant

A had neither obtained nor applied for leave.

Held: (i) The ruling of the High Court is a preliminary decree and, under section 5(1)

(a) of the Appellate Jurisdiction Act, 1979, no leave to appeal is required; B

(ii) considering the public importance of services rendered the disputed

premises should immediately be restored to the applicant.

Case Information

Appeal allowed. C

Mwajasho, for appellant

Mkatte, for the respondent.

[zJDz]Judgment

Ramadhani, J.A.: The applicant, Tahfif Mini Super Market, unsuccessfully applied D

for a temporary injunction before Rubama, J. He has filed a notice of appeal against

that refusal but meanwhile he has this notice of motion praying for a temporary

injunction.

A couple of days before this application was to be heard. Mr. Mkatte, the learned E

counsel for the respondent, B.P. Tanzania Ltd., with the ability of a Chinese acrobat,

made a preemptive move and sought to strike out the notice of appeal of the

applicant. In his notice of motion Mr. Mkatte argued that the applicant has neither

obtained nor applied for leave to appeal to this Court.

I must say the move by Mr. Mkatte was unprocedural. It would have been proper if F

he had given notice of a preliminary objection under Rule 100. Admittedly that rule

talks of "preliminary objection to any appeal". However Rule 2(1) defines "appeal" to

include "intended appeal" as Mr. Mwajasho, the learned advocate for the applicant,

did not G object, and I consolidated the two notices of motion. So the first

application I have to address myself to is that by Mr. Mkatte; prayer for striking out

the notice of appeal.

The issue here is whether or not leave to appeal is required. This in turn poses the

question of what was the ruling of Rubama, J. refusing to grant a temporary

injunctions H an order or a decree. If it was the latter, that is a decree, then that is

covered by Section 5(1)(a) of the Appellate Jurisdiction Act, 1969 and no leave to

appeal is required. But if the ruling was an order then it falls under Section 5 (1)(c)

and leave to appeal is required.

Mr. Mkatte submitted that the ruling of Rubama, J. as an order. He relied on the I

interpretations of decree and order as provided buy

1992 TLR p191

RAMADHANI JA

section 3 of the Civil Procedure Code, 1966 and the ruling of Mnzavas, J.A. in A

Godes Ltd. v Nimrod E. Mroso Civil Application No. 5 of 1990 (unreported). On the

other hand Mr. Mwajasho contended that ruling of Rubama, J. was a preliminary

decree. The learned advocate argued that what determines whether a ruling is an

order or a decree is the substance not the form. B

Section 3 of the C.P.C. defines a decree thus:

... the formal expression of an adjudication which, so far as regards the court

expressing it, conclusively determines the rights of the parties with regard to all or

any of the C matters. In controversy in the suit and may be either preliminary or

final ... but shall not include -

(a) an adjudication from which an appeal lies as an appeal from an order."

D

Then an explanation follows thus:

E A decree is preliminary when further proceedings have to be taken before the

suit can be completely disposed of. It is final when such adjudication completely

disposes of the suit. It may be partly preliminary and partly final.

Then "order" is defined in negative terms: F

... the formal expression of any decision of a civil court which is not a decree.

The issue for determination here is whether or not the ruling of Rubama, J. G

conclusively determined the rights of the parties with regard to any of the matters in

controversy in the dispute either preliminarily or finally.

To be in a position to make that determination I have to find out what were the

matters in controversy. H

The applicant is the plaintiff before the High Court. Under a Reseller Licence

Agreement the applicant possessed the University Service Station and ran the Petrol

Station as well as a Mini Super Market. The respondent demanded in writing, giving

29 days, that the premises be handed back to him alleging certain breaches. So the

applicant filed a suit I praying for two substantial orders:

1992 TLR p192

A (a) A declaratory order be issued to the effect that there is no subsisting

breach of the Reseller Licence Agreement to warrant termination.

(b) The Reseller Licence Agreement should subsist until there is a current

or a subsisting breach. B

This is why the applicant applied for a temporary injunction be maintain the status

quo; keeping the premises.

The respondent, on the other hand, filed his written statement of defence and prayed

for, inter alia, C

(ii) that the plaintiff immediately hands over the B.P. University Service

Station."

Thus possession of the suit premises is one of the matters in controversy as was D

properly contended by Mr. Mwajasho. Now, possession had been with the applicant

under the Reseller Licence Agreement. The effect of the ruling of Rubama, J. was to

give back possession to the respondent. Can that be said to conclusively determine the

E rights of the parties with respect of the issue of possession.

The conclusive determination of the rights of the parties is from the point of view of

the court formally expressing the adjudication. That is according to the definition of

decree in Section 3. Now, can Rubama, J. be said to have had that plaint of view? F

Rubama, J. said this:

Mr. Mwajasho ... and Mr. Mkatte ... elaborated on their positions. they were

extensive G detailed and of extreme usefulness to the court. I do not, however,

intend to go into them;. they greatly go into the merits of the main suit whose

determination would have to wait the finalization of the pleadings and naturally the

hearing of the case. To go deep into the H advanced conflicting submissions would

buy and large amount to prejudging the case. Yet I have to make a ruling on the

application. In the light of the material before me, I find myself unable to grant the

application by the applicant." (emphasis mine). I

1992 TLR p193

RAMADHANI JA

The learned judge decided not to grant the application and therefore rendered A

possession of the suit premises to the respondent "in the light of material before" him.

I ask, what material? The learned judge has given the answer. It consisted of the

submissions of the learned advocates which were "extensive, detailed... greatly go into

the merits of the main suit". the learned judge was wary not to go deep into that B

material lest he prejudged the case. Yet that was the material "of extreme usefulness

to the court" which made him refuse to grant the application and in effect allowed the

respondent's prayer "that the plaintiff immediately hands over" the suit premises.

Thus from the material before him, which according to the learned judge determines

the C case, he could not avoid to hand back possession to the respondent even before

the complete disposal of the suit.

In my opinion, the ruling by Rubama, J. is a preliminary decree. Therefore no leave to

appeal is required.

No, I turn to whether or not injunction is to be granted. D

As correctly argued by Mr. Mwajasho the dispute, if any, is over payment for petrol

supplied. But the suit premises were also used as Mini Super Market which has

nothing to do with the payments for petrol. Then, even for the usage of the premises

as a Petrol Station, untold hardship is brought to bear on the innocent public

particularly in view E of the fact that there are no alternative services rendered

within the vicinity. Above all, as submitted buy Mr. Mwajasho, the parties continued

doing business from the date the suit was filed in the High Court (7/5/91) to the date

the respondent locked up the premises (11/7/92). Business worth shs.1,087,075/80 was

transacted on 26/3/92 F according to Annexture B to the affidavit sworn by the

operator of the applicant which was not denied by the respondent.

For the above reasons I am of the opinion that injunction should be granted and that

the premises should immediately be restored to the applicant. I so order. G

The application for injunction pending appeal is allowed with costs.

H Appeal allowed.

1992 TLR p194

A