Ramadhani, J.A.: The applicant, Tahfif Mini Super Market, unsuccessfully applied D for a temporary injunction before Rubama, J. He has filed a notice of appeal against that refusal but meanwhile he has this notice of motion praying for a temporary injunction.
A couple of days before this application was to be heard. Mr. Mkatte, the learned E counsel for the respondent, B.P. Tanzania Ltd., with the ability of a Chinese acrobat, made a preemptive move and sought to strike out the notice of appeal of the applicant. In his notice of motion Mr. Mkatte argued that the applicant has neither obtained nor applied for leave to appeal to this Court.
I must say the move by Mr. Mkatte was unprocedural. It would have been proper if F he had given notice of a preliminary objection under Rule 100. Admittedly that rule talks of "preliminary objection to any appeal". However Rule 2(1) defines "appeal" to include "intended appeal" as Mr. Mwajasho, the learned advocate for the applicant, did not G object, and I consolidated the two notices of motion. So the first application I have to address myself to is that by Mr. Mkatte; prayer for striking out the notice of appeal.
The issue here is whether or not leave to appeal is required. This in turn poses the question of what was the ruling of Rubama, J. refusing to grant a temporary injunctions H an order or a decree. If it was the latter, that is a decree, then that is covered by Section 5(1)(a) of the Appellate Jurisdiction Act, 1969 and no leave to appeal is required. But if the ruling was an order then it falls under Section 5 (1)(c) and leave to appeal is required.
Mr. Mkatte submitted that the ruling of Rubama, J. as an order. He relied on the I interpretations of decree and order as provided buy
section 3 of the Civil Procedure Code, 1966 and the ruling of Mnzavas, J.A. in A Godes Ltd. v Nimrod E. Mroso Civil Application No. 5 of 1990 (unreported). On the other hand Mr. Mwajasho contended that ruling of Rubama, J. was a preliminary decree. The learned advocate argued that what determines whether a ruling is an order or a decree is the substance not the form. B
Section 3 of the C.P.C. defines a decree thus:
... the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the C matters. In controversy in the suit and may be either preliminary or final ... but shall not include -
(a) an adjudication from which an appeal lies as an appeal from an order." D
Then an explanation follows thus:
E A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
Then "order" is defined in negative terms: F
... the formal expression of any decision of a civil court which is not a decree.
The issue for determination here is whether or not the ruling of Rubama, J. G conclusively determined the rights of the parties with regard to any of the matters in controversy in the dispute either preliminarily or finally.
To be in a position to make that determination I have to find out what were the matters in controversy. H
The applicant is the plaintiff before the High Court. Under a Reseller Licence Agreement the applicant possessed the University Service Station and ran the Petrol Station as well as a Mini Super Market. The respondent demanded in writing, giving 29 days, that the premises be handed back to him alleging certain breaches. So the applicant filed a suit I praying for two substantial orders:
A (a) A declaratory order be issued to the effect that there is no subsisting breach of the Reseller Licence Agreement to warrant termination.
(b) The Reseller Licence Agreement should subsist until there is a current or a subsisting breach. B
This is why the applicant applied for a temporary injunction be maintain the status quo; keeping the premises.
The respondent, on the other hand, filed his written statement of defence and prayed for, inter alia, C
(ii) that the plaintiff immediately hands over the B.P. University Service Station."
Thus possession of the suit premises is one of the matters in controversy as was D properly contended by Mr. Mwajasho. Now, possession had been with the applicant under the Reseller Licence Agreement. The effect of the ruling of Rubama, J. was to give back possession to the respondent. Can that be said to conclusively determine the E rights of the parties with respect of the issue of possession.
The conclusive determination of the rights of the parties is from the point of view of the court formally expressing the adjudication. That is according to the definition of decree in Section 3. Now, can Rubama, J. be said to have had that plaint of view? F
Rubama, J. said this:
Mr. Mwajasho ... and Mr. Mkatte ... elaborated on their positions. they were extensive G detailed and of extreme usefulness to the court. I do not, however, intend to go into them;. they greatly go into the merits of the main suit whose determination would have to wait the finalization of the pleadings and naturally the hearing of the case. To go deep into the H advanced conflicting submissions would buy and large amount to prejudging the case. Yet I have to make a ruling on the application. In the light of the material before me, I find myself unable to grant the application by the applicant." (emphasis mine). I
The learned judge decided not to grant the application and therefore rendered A possession of the suit premises to the respondent "in the light of material before" him. I ask, what material? The learned judge has given the answer. It consisted of the submissions of the learned advocates which were "extensive, detailed... greatly go into the merits of the main suit". the learned judge was wary not to go deep into that B material lest he prejudged the case. Yet that was the material "of extreme usefulness to the court" which made him refuse to grant the application and in effect allowed the respondent's prayer "that the plaintiff immediately hands over" the suit premises. Thus from the material before him, which according to the learned judge determines the C case, he could not avoid to hand back possession to the respondent even before the complete disposal of the suit.
In my opinion, the ruling by Rubama, J. is a preliminary decree. Therefore no leave to appeal is required.
No, I turn to whether or not injunction is to be granted. D
As correctly argued by Mr. Mwajasho the dispute, if any, is over payment for petrol supplied. But the suit premises were also used as Mini Super Market which has nothing to do with the payments for petrol. Then, even for the usage of the premises as a Petrol Station, untold hardship is brought to bear on the innocent public particularly in view E of the fact that there are no alternative services rendered within the vicinity. Above all, as submitted buy Mr. Mwajasho, the parties continued doing business from the date the suit was filed in the High Court (7/5/91) to the date the respondent locked up the premises (11/7/92). Business worth shs.1,087,075/80 was transacted on 26/3/92 F according to Annexture B to the affidavit sworn by the operator of the applicant which was not denied by the respondent.
For the above reasons I am of the opinion that injunction should be granted and that the premises should immediately be restored to the applicant. I so order. G
The application for injunction pending appeal is allowed with costs.
H Appeal allowed.
A
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