Attitlio v. Mbowe Civil 95-D-69; 6/9/69; Georges C. J.

Attitlio v. Mbowe Civil 95-D-69; 6/9/69; Georges C. J.

The plaintiff is the lessee of the Splendid Hotel on Independence Avenue, Dar es Salaam. The defendant is in possession of three rooms in the hotel as well as the bar area which he operates as bar and night club. In the plaint, the plaintiff claims among other remedies vacant possession of the three rooms and the Bar premises as well as an injunction to restrain the defendant, his servants and agents from using the 3 rooms, Bar premises, night club premises. On the filing of the writ the plaintiff applied for and was granted a temporary injunction restraining the defendant from running the bar and night club. Later a stay was granted. The issue for determination was whether the temporary injunction should continue until trial or not.” The Bar and night club had been closed since March 1969. Negotiations were in progress between the plaintiff’s attorney and the defendant for the sale of the business. The plaintiff alleged that he had given the defendant an option to purchase exercisable by 10^th June, that he defendant was to pay the purchase price by that date, that he had obtained possession on the basis of a false representation that he was able and willing to pay that amount and had not in fact done so. The defendant claimed that they had agreed that a proportion of the price was to be paid on signing the agreement for sale, and the remainder by instalments, and that on those terms he was lawfully in possession of the property under a contract of sale. The jurisdiction of the Court to grant temporary injunctions is governed by s. 68(c) and Order 37 Rules 1 & 2 of the Civil Procedure Code.

Held: “It would appear to me that this case fits more aptly under the class of cases covered by the provisions of Rule 2. The plaintiff has in effect alleged a trespass and is asking for temporary injunction to restrain the continuance of that trespass pending the determination of the suit.” (2) “It is generally agreed that here are three conditions which must be satisfied before such an injunction can be issued:- (i) there must be serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed; (ii) that the Court’s  interference is necessary to protect

            the plaintiff from the kind of injury which may be irreparable before his legal right is established, and (iii) that on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of  the injunction than will be suffered by the defendant from the granting of it. The first condition is satisfied in this case. There are serious question to be tried as to the terms of the contract of sale entered into between the plaintiff’s agent and the defendant. There is the issue as to whether the defendant did obtain possession of the portion of the premises which he now occupies because of fraudulent misrepresentations on his part. If the facts deposed by the plaintiff’s agent can be established, then the plaintiff would be entitled to the relief she claims. The second condition poses greater difficulty. The Court must be satisfied that the damage which the plaintiff will suffer will be such that mere money compensation will not be adequate.”…. a temporary injunction will normally be granted …… only if the whole point of the perpetual injunction claimed would be defeated if the temporary injunction is not granted. A striking illustration would be a suit praying for a perpetual injunction to restrain a defendant from interfering with one’s enjoyment of a right to light by erecting a tall building close up to one’s boundary. If a temporary injunction were not ranted in such a case and building allowed to continue and the access to light seriously cut off, then the whole purpose of the perpetual injunction would be frustrated. I do not think that the whole purpose of the final injunction here claimed would be frustrated if a temporary injunction were not granted now. On the other hand it could be argued that granting the injunction may amount virtually to deciding the issue now against the defendant since he will be deprived of the possession which he claims to have been lawfully given to him under a valid contract. If this can be the effect of an injunction it should not normally be granted. I am not satisfied that the plaintiff would suffer loss which could, in any sense, be termed irreparable if the injunction is not granted. He himself has quantified his loss at Shs. 700/- a day for rent, water charges etc. should he succeed the defendant will have a judgment entered against him for such of the damage as can be proved and the plaintiff will have recuperated his loss. I would hold, therefore, that the second pre-conditions to the grant of a temporary injunction has not been established.” (3) “It is unnecessary, therefore, to consider the third pre-condition – the balance of convenience. The primary consideration there is the maintenance of the status quo pending the determination of the action. The status quo, in my view, is the status quo at the date of the filing of the action. This can be maintained without the granting of a temporary injunction in the terms claimed. The defendant must not occupy any more of the hotel than he has been allowed to and not to interfere with the plaintiff’s use of such parts of the premises as have not been handed over to him.” (4) Temporary injunction refused. Action to be brought to trial forthwith.