Gazelle Tracker Limited v Tanzania Petroleum Development Corporation (Civil Application No. 15 of 2006) [2006] TZCA 40 (10 March 2006)

This is an application for an order of temporary injunction to restrain the respondent, Tanzania Petroleum Development Corporation, from carrying out the intended eviction of the applicant from the suit premises. The injunctive relief is sought pending the determination of the intended appeal. The application is by way of a Notice of Motion supported by the affidavit sworn by Fauzia Jamal Mohamed, one of the Directors of the respondent company.

From the affidavital deposition, the background of the matter may briefly be stated. It is apparent that there arose a dispute between the applicant and the respondent over the suit premises situated on Plot No. 81, Bryson Road, Mlalakua Area, Kinondoni District, Dar-es-Salaam. As a result of the dispute, the applicant filed in the High Court Civil Case No. 285 of 2001. The applicant sought the following reliefs: (a) reimbursement of monies spent for renovations of the suit premises and (b) a declaration that the decision by the respondent to sell the suit premises without affording the applicant the right of first refusal constitutes a breach of contract.

Sustaining the preliminary objection raised at the commencement of the trial, on 27.10.2005 the learned trial judge struck out the suit on the ground that the High Court was not seized with jurisdiction to hear the case. The applicant was dissatisfied with the order of 27.10.2005, so, notice of appeal was duly filed. Pending the determination of the intended appeal, this application for temporary injunction has been sought. In the notice of motion the following grounds are advanced: One, that the applicant is not in arrears of rent in respect of the suit premises; two, the applicant has the right of first refusal to purchase the suit premises; three, the intended eviction is meant to facilitate the sale of the suit premises to the Managing Director of the respondent company; fourth, the decision of the High Court of 27.10.2005 is incapable of being executed, fifth, if no injunction is granted, the appeal will be rendered nugatory. Lastly, that an important point of law is involved worth consideration of the Court of Appeal.

In his counter affidavit, Mr. Kilindu, learned counsel, for the respondent corporation, among other matters, avers as follows: First, that it is not disputed that High Court Civil Case No. 285 of 2001 was struck out on 27.10.2005. Two, that the applicant is in arrears of rent which has resulted in the respondent filing in the Land Division of the High Court Land Case No. 190 of 2004 claiming Shs. 24,500,000/= arrears of rent from the respondent. Three, that upon the application by the applicant, Land Case No. 190 of 2004 has been stayed pending the determination of Civil Case No. 285 of 2001, which, as already indicated, was struck out.

In this application, the applicant was represented by Mr. Lutema, learned counsel. He elaborated the grounds set out in the notice of motion and the affidavit. With regard to the intended appeal he said that the intended appeal involves an important point of law. He charged that the Land Dispute Settlement Act No. 2 of 2002, does not vest exclusive jurisdiction to the Land Division of the High Court, and the District Land and Housing Tribunal as held by the trial judge over such matters as in the instant case. The suit in the instant case was not based on land lord and tenant relationship. It was a matter based on contract in which case it was erroneous on the part of the learned judge to hold that the High Court was not vested with jurisdiction to deal with the matter. Therefore, on a balance of convenience, the application for temporary injunction is warranted in order to maintain the status quo, Mr. Lutema urged.

Responding to these submissions, Mr. Kilindu, vehemently opposed the application which he said had no merit. First, he contended that it is not proper for the Court of Appeal to be involved in matters relating to injunctive reliefs. There is no provision in the Court Rules, 1979 providing for such relief being granted by the Court, Mr. Kilindu maintained. He further stated that currently Land Case No. 190 of 2004 is still pending in the High Court, Land Division. It was filed by the respondent on 22.9.2004 against the applicant for arrears of rent of Shs. 24,500,000/=. In that situation, Mr. Kilindu went on in his submission, as Land Case No. 190 of 2004 was already pending in the High Court, Land Division, if the applicant deemed it necessary to have the injunctive relief, the application would be made in the High Court, Land Division and not in this Court. The High Court would, upon being properly moved, exercise its discretionary powers vested under the provisions of Order XXXVII Rules 1, 2 and 3 of the Civil Procedure Code, 1966. In any event, Mr. Kilindu urged, apart from the application being improperly before the Court, on merit no sufficient cause has been shown why the relief of temporary injunction should be granted. He prayed for the dismissal of the application.

I shall first deal with the issue whether it is proper for the Court, in the circumstances of the case, to be moved to grant the order for temporary injunction. As just indicated, Mr. Kilindu, learned counsel for the respondent was firmly of the view that it was not. While there is no denying the fact that with the suit being struck out on 27.10.2005 by Ihema, J. (as he then was) the order of dismissal is not, as correctly pointed out by both Mr. Lutema and Mr. Kilindu capable of execution. However, that notwithstanding, I have lingering doubts in my mind that this fact in itself justifies the course of action taken in this case. First, as contended by Mr. Kilindu, there was no reason why the relief for the injunctive relief was not sought in the High Court. All the more so, as Land Cause No. 190 of 2004 involving the same parties and same suit premises over alleged arrears of rent is still pending. If the respondent as alleged in the notice of motion was threatening to sell the suit premises while there was still unresolved dispute between the parties in Land Cause No. 190 of 2004, the applicant could move the High Court for an order for temporary injunction. The High Court would in that situation, invoke its discretionary powers in terms of the provisions of order XXXVII Rules 1, 2 and 3 of the Civil Procedure Code, 1966.

It is common knowledge that the Civil Procedure Code, 1966 does not apply in this Court. In view of the fact that no provision is made in the Court Rules, 1979, for injunctive reliefs, I am persuaded by Mr. Kilindufs submission that applications for injunctive reliefs such as this, are more appropriately suited for the court exercising original jurisdiction and not the Court of Appeal. The logic is not far to seek. As provided for under Rule 1, Order 37 of the Civil Procedure Code, 1966, temporary injunction may be granted where in any suit, the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. It is therefore clear that injunctive reliefs are, according to the law as set out above, generally invoked at the stage where the trial of a suit is in progress or pending. Therefore, the proper forum for seeking temporary injunction is the court exercising original jurisdiction, namely the High Court, Land Division in this case, where Land Cause No. 190 of 2004 was, and is still pending.

The grant of an injunctive relief being discretionary, it goes without saying that a court in exercise of original jurisdiction in a trial of a suit, is in a better position to exercise the discretion to grant or otherwise an order for temporary injunction than an appellate court.

On this, the limited function of an appellate court in an appeal in matters relating to temporary injunction was succinctly set out by Lord Diplock in Hardmore Productions Ltd. And Others v. Hammilton And Another, (1983) 1 A.C 191 wherein inter alia, it was stated at page 220:

An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon an appeal from the judgefs grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordshipsf House, is not to exercise an independent discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. ----- It is only if and after the appellate court has reached the conclusion that the judgefs exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.

In the instant case, having regard to the fact that the High Court, Land Division where Land Cause No. 190 of 2004 is still pending, could still exercise its original jurisdiction to grant or refuse granting the temporary injunctive relief, I can see no reason at all in the circumstances for involving this court to exercise an original discretion.

On the other hand, even if the matter was to be carried further on its merits, I do not think that sufficient reasons have been given to justify the grant of the relief sought. Mr. Lutemafs plunk of his submission is that the applicant has spent a considerable amount of money in renovating the suit premises which amount is to be taken into account in considering the arrears of rent claimed. For one thing it is not disputed that there was a tenancy agreement for the specified period and for agreed monthly rent. If that is so, then one wonders how would the outcome of the appeal be rendered nugatory. That is, in that sense, the outcome of the appeal would not be rendered nugatory. In the event the intended appeal succeeds whose prospects of success, I can hardly venture an opinion, all the more so, where the suit was struck out on grounds of jurisdiction, the disputed amount would be directed to the winning party. With regard to the claim that the applicant has the right of first refusal as claimed by the applicant, this again seems to me a matter which revolves around the undisputed tenancy agreement. Otherwise, I need say no more on this at this stage.

Tanzania: Court of Appeal

Gazelle Tracker Limited v Tanzania Petroleum Development Corporation (Civil Application No. 15 of 2006) [2006] TZCA 40 (10 March 2006)