HENRY LYIMO v ELIABU E MATEE 1991 TLR 93 (HC)

HENRY LYIMO v ELIABU E MATEE 1991 TLR 93 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

9 August, 1991

Flynote

Civil Practice and Procedure - Interlocutory Order - Whether High court has

jurisdiction to invoke its revisional powers in E respect of interlocutory orders.

-Headnote

The respondent filed a suit against the applicant in the Resident Magistrate's Court.

Then he applied for temporary F injunction to restrain the applicant from doing a

number of things. He also prayed for a temporary closure of business in which the

applicant was involved pending final disposal of the suit. The lower court granted the

application. Aggrieved the applicant filed this application in the High Court praying

that the order of closure of the G business be revised.

Held: The order made by the learned magistrate is clearly an interlocutory one. It is

an interim order pending the determination of the case. It is therefore not a case

decided within the meaning of the provisions of section 79(1) of H the Civil

Procedure Code and this court has no jurisdiction to invoke its revisional powers as

provided for in that section.

Case Information

Application dismissed. I

1991 TLR p94

KYANDO J

A Cases referred to.

1. Kassam v The Regional Land Officer [1971] HCD N. 15.

2. Jayantilal Gandesha v Kilingi Coffee Estate Ltd. & Another [1968] HCD

N. 399.

3. Ryan Investments v USA [1970] EA 675.

B Mkondya, for the applicant

Mbuya, for respondent

[zJDz]Judgment

Kyando, J.: The applicant is the defendant in (RM) Civil Case No. 32 of 1990 filed in

the Resident Magistrate's C Court "at Dar es Salaam". In that suit the

plaintiff/respondent avers; inter alia, that he is the beneficial owner of all that land at

Kinondoni Shamba wherein there is a building known as ARAWA BAR

RESTAURANT AND D GUEST HOUSE". He also avers that "in 18/7/19 (sic) the

plaintiff entered into an oral business agreement with the defendant" whereby they

agreed that they "will carry on business of bar, restaurant and guest house on the said

land", and that the defendant now is attempting to sell the suit premises and some

personal properties belonging to E the plaintiff secretly to some persons unknown to

the plaintiff.

The value of the alleged suit premises and/or the personal properties has not been

indicated in the plaint. This is violative of 0.VII r. 1 (i) of the Civil Procedure Code,

1966, which requires that amongst the particulars to be F contained in a plaint are "a

statement of the value of the subject matter of the suit for the purposes of jurisdiction

and court fees, so far as the case admits".

Be that as it may, the plaintiff has then prayed for the following reliefs, amongst

others:

G (1) A declaration that he is the lawful owner of the suit premises, and

(2) A permanent injunction to restrain the defendant either by himself, his

servants or agents from either entering the suit H premises or selling the suit

premises or any of the plaintiff's property in the suit premises.

On the 25th of April, 1990, he (the plaintiff) presented an application in the court

below for temporary injunction to restrain the defendant, his servants or agents from

either selling the suit premises or any of the properties in the suit I premises which

belong to the plaintiff pending final determination of the suit. He also

1991 TLR p95

KYANDO J

prayed for a temporary closure of the business pending final disposal of the suit. In a

ruling delivered on 16/5/1990 A the court (Kimaro SRM) granted all the above

prayers. The applicant/defendant then filed this application in this court praying that

the order of closure of the business contained in the Magistrate's ruling be revised.

At the hearing of the application before me, after Mr Mkondya for the

applicant/defendant had submitted in support B of the application, Mr Mbuya

replied by stating that the application, having been brought under Section 79 of the

Civil Procedure Code, is incompetent because, he argued, the order which it is sought

to be revised was an interlocutory order, whereas Section 79 of the Civil Procedure

Code applies to cases which have been decided. In C support of these contentions

Mr Mbuya referred this court to Kassam v Regional Land Officer [1971] HCD n.15

and Jayantilal Gandesha v Kilingi Coffee Estate Ltd. & Another [1968] HCD n. 399.

On the basis of the decisions in these cases Mr Mbuya submitted that the

applicant's/defendant's application be dismissed. D

In reply, Mr Mkondya submitted that the application by the applicant is also brought

under S.95 of the Civil Procedure Code. He also argued that though he had not so

stated in the application, under s.44 of the Magistrates' Court Act, 1984, additional

powers of supervision and revision have been conferred on the High Court. He E

submitted therefore that under these, latter provisions the High Court can, by

revision, intervene in interlocutory orders of Magistrates' Courts.

In the case of Kassam v The Regional Land Officer (supra) it was held that s. 79 of the

Civil Procedure Code F would not apply to revise a decision of a subordinate court

over an interlocutory matter.

In Jayantilal Gendesha v Kilingi Coffee Estate Ltd. & Another, the facts and the

holding of the court on the point were as follows: G

The suit proper involves a dispute over a contract between the parties for the

sale of a farm. Plaintiff's advocate, who had acted for both the parties during the

negotiation of the contract, was called by defendant as a witness. Plaintiff objected

that H to allow this would amount to an abuse of the process of the court. The court

permitted the summons to issue, and in addition ruled that in view of his role as a

witness, plaintiff's advocate should be his retainer. This petition for revision is

concerned only with these rulings. I

1991 TLR p96

KYANDO J

A Held: (i) This petition for revision was brought under section 79 (1) of the

Civil Procedure Code, 1966. The High Court observed that it could have been

brought under the Magistrates' Courts Act, Cap. 537, ss. 38, 39 as provided by s. 79 (2)

of the Civil Procedure Code, which gives the High Court wider revisional powers

than 79 (1). As plaintiff's petition did not refer B to the latter provisions, however,

the court limited itself to s.79(1), which provides for revisional jurisdiction over

decided cases. Whether an interlocutory decree may come within the meaning of

"case" is a thorny question on which the authorities C diverge ... The present

situation cannot qualify as a decided case under any reasonable definition. It was an

interlocutory matter, unconcerned with the final decision or that of any of the issues

before the court and was concerned entirely with a step in the procedure ....

D As noted above, Mr Mkondya relies also on s.95 of the Civil Procedure Code. I

am of the view that that section cannot be had recourse to in this matter when there

are specific provisions providing for revision (see (Ryan E Investments v USA [1970]

EA 675). It is only a matter of those provisions being complied with by the applicant.

As for the revision provisions in the Magistrates' Courts Act, 1984, as the case above

holds, because those provisions have not been referred to in the applicant's

application this court will only limit itself to s.79 of the Civil F Procedure Code

under which the application has been filed.

The order made by the learned magistrate is clearly an interlocutory one. It is an

interim order pending the determination of the case. It is therefore not a case decided

within the meaning of the provisions of s. 79(1) of the G Civil Procedure Code and

this court has no jurisdiction to invoke its revisional powers as provided for in that

section. So, though the order (of closure of the business) appears patently unjustified,

unlike the order for temporary injunction restraining sale or disposition of the

properties, this court will not interfere with it by revision. H The

applicant's/defendant's application, therefore, is dismissed, with costs.

I Application dismissed.

1991 TLR p97

A