Ibrahim v. Ngaiza Civ. App. 2-M-71; 5/7/71; El-Kindy Ag. J.

 

Ibrahim v. Ngaiza Civ. App. 2-M-71; 5/7/71; El-Kindy Ag. J.

The appellant filed a suit against the respondent for return of vehicle alleging that the was special owner of the motor vehicle which was in the custody of the respondent to whom he had entrusted it. Before the suit was heard, appellant claimed a temporary injunction alleging that the vehicle was in danger of being wasted, damaged or alienated” to his loss. The respondent opposed this application on the ground that he appellant was his partner in business. The trial magistrate made an order preventing the respondent from selling the vehicle or moving it from Kigoma District, but did not order the respondent to stop using the vehicle. This order was challenged on the ground that; (a) the magistrate did not and ought to have taken into account the possibility of considerable damage being done to the vehicle and that this damage could not be made good by an award of monetary compensation; (b) the magistrate failed to direct his mind to the fact that the purpose of a temporary injunction is to maintain a status quo pending court decision on the merits of the case.

            Held: (1) “The granting of a temporary injunction under Order XXXVII rule 1 of Civil Procedure Code, 1966 is a matter of discretion of the court and this discretion can only be said to have been judicially exercised if the court appreciated the facts and applied those facts tot eh principles governing the issuance of temporary injunction. One of the principles is that the court should be satisfied that there is a substantial issue (triable one) between the parties and that there is likelihood that the applicant might be entitled to relief and whether the status quo should not be preserved until the dispute is investigated. From the brief record, it cannot be said that the trial magistrate properly directed his mind on the issue before him. He seemed to have ignored what the appellant stated in his affidavit, and taken into account what the respondent has said …… the issue was

whether the appellant had advanced sufficient facts which would entitle him to a temporary injunction to be issued. He said that the vehicle was likely to be damaged, and the respondent confirmed that he is using this vehicle. If so then the possibility of loss is real ….. the appellant was entitled to a temporary injunction.” (2) Appeal allowed.