He also cited Civil Application No. 133 of 2004 M/S Ilabila Industries Limited & Two Others v. Tanzania Investment Bank (unreported); Civil Application No. 50 of 1999, Athanas Albert and Four Others v. Tumaini university, Iringa University College (unreported). On whether or not the intended application for revision has any chances of success, Mr. Kilindu submitted that it was
too early at this moment for the Court to make an informed comment and referred to Civil Application No. 64 of 1997, Millan Zinzuadis v. Abdul Hakim and Another (unreported). As regards the allegation that the applicant is bound to suffer irreparable loss, Mr. Kilindu submitted that the applicant
had not particularized the loss and in any case, the applicant could be compensated for any monetary loss that he would suffer. Mr.
Kilindu implored the Court not to make any comment at this stage on whether or not the applicant was granted the right to be heard
before the learned judge made the interim injunctive order. In his view this issue should be raised when the application for revision
is being determined. Lastly, the learned advocate submitted that an injunction cannot be stayed unless there are exceptional circumstances.
In support of this proposition, Mr. Kilindu referred to a renowned text-book, Kerr on Injunctions (6th edition) by J.M. Paterson at page 334 where the learned author has this to say -
gThe Court has a discretion to stay proceedings pending an appeal, but the general rule is that in the case of an injunction a stay
will not be granted. But each case depends largely upon its own special circumstances.h
Mr. Kisusi, learned advocate for the 2nd respondent, fully associated himself with the submissions made by Mr. Kesaria, learned advocate for the applicant. As an additional
ground in support of the application he referred to paragraphs 2 and 7 of the affidavit by James Bakinege Mbalwe to the effect that
the licence issued to the 1st respondent expired on the 31.10.2005 and that it was this licence which was the basis for obtaining the interim injunctive order.
The first hurdle that the applicant has to jump over, is the competency of the application
as raised by Mr. Kilindu. The applicant is not a party to Commercial Case No. 92 of 2005 now before the High Court. Consequently,
the applicant cannot invoke Rule 9 (2) (b) of the Court Rules since the applicant does not qualify as gany personh who
is involved in the original suit and therefore who can file a notice of appeal. (see: Attorney-General v. Kadau (1997) TLR 96).
As stated before the applicant also sought to move this Court by invoking Rule 3(2)
(a) and (b) of the Court Rules which provides ?
(2) where it is necessary to make an order for the purposes of ?
a)
dealing with any matter for which no provision is made by these Rules or any other written law;
b)
better meeting the ends of justice; or
c)
the Court may, on application or on its own motion, given directions as to the procedure to be adopted or make any other order when
it considers necessary.h
These provisions empower the Court to make orders for the purpose of dealing with
any matter for which provision is not made in the Rules or any other written law or for the better meeting the ends of justice. What
is before me is basically an application for stay of execution of an interlocutory order made by the High Court pending revision
of the Order of the High Court. When the Appellate Jurisdiction Act 1979 was amended by Act No. 15 of 1993 vesting in the Court powers
of revision, Rule 9 (2) (b) was not amended to reflect the change in the parent Act. I can safely state that there is no provision
in the Court Rules governing an application for stay of execution pending revision. I am therefore inclined to invoke Rule 3 (2)
(b) to entertain this application gfor better meeting the ends of justice.h I therefore reject Mr. Kilindufs contention
that the application before me is incompetent.
The applicant advanced five grounds seeking gsuspension and stayh of
the interim order issued on the 19.10.2005, namely ?
g1. The aforementioned High Court restraining and prohibition Order is problematic and has been erroneously issued
2.
There are good and sufficient reasons for suspending and staying the aforementioned order so as to protect and preserve the applicantfs
rights and interests
3.
The suspension and stay of the aforementioned High Court Order is necessary on the balance of convenience
4.
The application for revision of the High Court proceedings, Rulings and Orders filed by the applicant contemporaneously with this
application has overwhelming chances of success
5.
The applicant stands to suffer irreparable loss and injury of the application herein is not granted.h
Mr. Kilindu, learned advocate for the first respondent, strenuously submitted that
a stay order cannot be granted where execution has already taken place. Such an order, he said, would be an exercise futility. He
cited Civil Appeal No. 16 of 1995, National Bank of Commerce v. Dar-es-Salaam Education and Office Stationery (unreported) and Civil Application No. 50 of 1999, Athanas Albert & 4 Others v. Tumaini University (unreported). The learned advocate relied mainly on paragraphs 15 and 16 of Mr. Sameer Hirjifs affidavit in support of the
application. Paragraph 15 provides as follows ?
g 15. As a consequence of the said Rulings, the applicant received a letter from the second respondent on the same day requiring the
applicant to stop operating the SMS Lottery. In compliance with the second respondentfs said letter the applicant on 19th October, 2005 stopped all operations and activities relating to SMS lottery.
Admittedly, the High Court made the interlocutory order and the applicant had no
option but to comply with a lawful order of the High Court, otherwise they would face possible charges of contempt of court for non-compliance.
The fact of the matter however is that the main suit in Commercial Case No. 92 of 2005 has not been heard and determined. It is still
being litigated in the High Court. It is not like a house which has already been sold to third parties, i.e. the substratum does
not exist any more. In the case of In re Overseas Aviation Engineering (G.B.) Ltd. (1963) 1 Ch 24, 39 Lord Denning, M.R. stated thus ?
gExecutionh means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is completed
when the judgment creditor gets the money or other thing awarded to him by the judgment.h
Obviously, the High Court has not as yet pronounced judgment in respect of Commercial
Case No. 92 of 2005. Before there is any execution there must be a judgment of the Court to be enforced. Execution is the final act,
the satisfaction of the judgment. (see: Civil Application No. 68 of 1999 Shell and BP Tanzania Ltd. v. The University of Dar-es-Salaam (unreported).
The second matter which I would like to discuss was also raised by Mr. Kilindu. In the course of his submissions, he referred the
Court to the following sentence culled from the learned author of Kerr on Injunctions (6th edition) at page 334 which reads ?
gThe Court has a discretion to stay proceedings pending an appeal, but the general rule is that in the case of an injunction a stay
will not be granted. But each case depends largely upon its own special circumstances.h
Unfortunately, the learned advocate did not elaborate on the point being made. My
understanding is that a court has discretionary powers to grant stay orders pending the determination of an appeal. This is what
is embodied in Rule 9 (2) (b) of the Court Rules and now extended by decided cases of this Court to applications for revision. However,
I am not sure whether or not this general rule applies to interlocutory orders, that is orders of a purely interim or temporary nature
which do not decide the rights or liabilities of the parties, and what principles should apply in the exercise of the judicial discretion.
I have found inspiration in Hadmor Productions ltd. & Others v. Hamilton and Another (1983) 1 AC 191 wherein Lord Diplock stated as under at page 220 ?
g 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 of its own. It must defer to the judgefs exercise of his 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 may set aside the judgefs exercise of his discretion on the ground that it was based upon
a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist,
which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated
to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change
of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional
cases where even though no erroneous assumption of law or fact can be identified the judgefs decision to grant or refuse the
injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially
could have reached it.h (emphasis added)
Mr. Kesaria complained that the applicant was not a party in the High Court Commercial Case No. 92 of 2005, and in particular to the
chamber summons in which the first respondent prayed for the grant of interim orders the subject matter of this application. The
prayer was granted without giving the applicant the opportunity of being heard. Mr. Kesaria submitted that this was a fundamental
right and its non-observance should result in the Court nullifying the Order. The learned advocate cited a number of decisions of
this Court including Civil Application No. 69 of 2003, District Executive Director of Rufiji District Authority v. Abbas S. Likonda (unreported); Civil Application No. 133 of 2002 Abbas Sherally and Another v. Abdul Sultan Haji Mohamedi Fazaboy (unreported). The response of Mr. Kilindu, to this was to the effect that the 2nd respondent has raised the issue in the defence and hence the issue will be resolved by the High Court. I am in respectful agreement
with Mr. Kesaria that it is a cardinal principle of natural justice that a person should not be condemned unheard but that fair play
demands that both sides should be heard. It is not a fair and judicious exercise of power but a negation of justice, where a party
is denied a hearing before its rights are taken away. (see: Civil Appeal No. 45 of 2000, Mbeya Rukwa Autoparts & Transport Ltd. v. Jestina George Mwakyoma (unreported). This is now a constitutional right embodied in Article 13 (6) (a) which reads in part as under ?
g13 (6) Kwa madhumuni ya kuhakikisha usawa mbele ya sheria, Mamlaka ya Nchi itaweka taratibu zinazofaa au zinazozingatia misingi kwamba
?
a)
wakati haki na wajibu kwa mtu yeyote inapohitajika kufanyiwa maamuzi na mahakama au chombo kingine chochote kinachohusika, basi mtu
huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu, na pia haki ya kukata rufani au kupata nafuu nyingine ya kisheria
kutokana na maamuzi ya mahakama au chombo hicho kinginecho kinachohusika;h
Paragraph 11 of the affidavit in support by Mr. Sameer Hirji, reads ?
g11. The first respondentfs application for injunction and the second respondentfs petition for stay of proceedings were
disposed of by way of written submissions ---------------
The applicant herein was deliberately or otherwise excluded from this process.h (emphasis added)
