chairman of rukwa development association rda vs minister of education and vocation training others 2006 tzhc 206 21 july 2006

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT SUMBAWANGA MISC CIVIL APPLICATION NO. 13 OF 2006. In the matter of an application for Orders of Temporary Injunction Between: THE CHAIRMAN OF RUKWA DEVELOPMENT ASSOCIATION (RDA) APPLICANT Versus 1st MINISTER OF EDUCATION AND VOCATION TRAINGING 2nd THE ATTORNEY GENERAL y RESPONDENT 3rd THE ROMAN CATHOLIC BISHOP OF SUMBAWANGA DIOCESE (Dated 18/07/2006) And (Dated 21/07/2006) RULING BEFORE B.M.MMILLA. .1. This ruling is a result a preliminary objection raised by Mr. Malata, learned state attorney who represents the first and second respondents in Misc.Civil Application No. 13 of 2006 indicated to be between the Chairman of Rukwa Development Association (herein referred to as the applicant) and the Minister of Education and Vacation Training & two Others (herein referred to as the respondents). The said application has been filed under a certificate of urgency. It is seeking this court’s order for temporary injunction restraining the respondents from “ disturbing, and need of vacant possession of Rukwa Secondary School” pending hearing of the application for leave to file for orders of certiorari, mandamus and prohibition. The said Misc. Civil Application No. 13 of 2006 has been made by way of a chamber summons based 011 Order X X X V II rule 1 and section 95 of the Civil Procedure Code Cap.33 of the Revised Edition, 2002 and any other enabling provision of law. It is supported by an affidavit sworn by the applicant’s advocate one Deogratius Mwarabu. Annexed to the said chamber summons are exhibits “ A” and 44B” . While annexure 44A” comprises documents which constitute the pleadings in Misc. Civil Application No. 11 of 2006 which was filed in this court seeking for leave to file an application for orders for the said prerogative orders, annexure 44B” constitutes letters which evidence the correspondences between the applicant and the respondents. After being served with copies of the pleadings in respect of the said Misc. Civil Application No. 13 of 2006, the learned state attorney Mr. Malata has filed a three fold preliminary objection notice as follows:- (1)That the temporary injunction applied for by the applicant cannot be granted as there is no pending application before the court of law; (2) That the chamber summons and its affidavit of the application for temporary injunction is fatally defective as it contradicts the - 2- application for leave to apply for orders of certiorari, mandamus and prohibition; and (3) That the affidavit filed by the applicant is bad in law for non- compliance of Order VI rule 15(3) of the Civil Procedure Code Cap.33, Revised Edition, 2002. I intend to tackle the grounds raised in the chronological sequence in which they appear just as Mr. Malata did. As already stated, the first ground alleges that temporary injunction applied for cannot be granted because there is no pending application before this court under which it is based. Elaborating on this, the learned state attorney submitted that because the applicant’s application for leave to file for prerogative orders has not been heard and determined, they are yet to be permitted to apply for the said prerogative orders. This being the position, they have no pending application on which their instant application for temporary injunction is based. He submitted that in view of that, temporary injunction cannot be validly granted. He cited several cases in support of this stand, including those of Hans Wolfgang Golcher v. General Manager of Morogoro Canvas Mill Limited (1987) T.L.R. 78 and Alfred Lakuru v. Town Director (Arusha) (1980) T.L.R. 326, Israel Solomon Kivuyo v. Wayani Langoi and Naishooki Wayani(1989)T.L.R. 140, and Said Hamid Mwilima v. Tabora Regional Trading Company (1997) T.L.R. 156. Reacting on this point, the learned counsel who appeared lor the applicant Mr. Mwakolo submitted that the allegation that there is 110 pending application on which the application for temporary injunction is founded is baseless in view of the fact that the applicant has filed Misc. Civil Application No. 11 of 2006 which seeks leave to be allowed to file for prerogative orders and is pending, and that all the cases cited by the learned state attorney in this regard are distinguishable. He submitted that while the court said in the cases of Hans Wolfgang Golcher (supra) and Alfred Lakuru that there were filed no applications for leave, the cases of Israel Solomon Kivuyo v. Wayani Langoi and Another (supra) and Said Hamid Mwilima v. Tabora Trading Company (supra) are not relevant to the circumstances of our present matter in that they concerned execution of decree and not temporary injunction, which he said, were two different matters. Except for the case of Hans Wolfgang Golcher, I agree with Mr. Mwakolo that all the other cases cited in support of the point that the application was required to be based 011 a pending application for prerogative orders are distinguishable. In the first place, the cases of Israel Kivuyo (supra) and Said Hamid Mwilima (supra) concerned execution of decree and not temporary injunction which are two different matters. They are therefore irrelevant to our present case. On the other hand, while the court expressed in the case of Alfred Lakuru the view that it was mandatory to obtain leave to file the application, and that where no such leave will have been sought and granted, an application for prerogative orders is incompetent, it did not address the circumstances under which a temporary injunction may be properly grounded in cases of the kind. Distinguishable also is the portion quoted from Hulsbury’s Laws of England vol. 11, 3rd Edition. Mr. Malata cited a section on page 70 which state that no application for prerogative orders can be made unless leave thereof has been granted. I think we are agreed that that this is not the issue taxing us here. In my view however, the case of Hans Wolfgang Golcher (supra) is most relevant to the issue at stake regarding whether or not an application for temporary injunction may be granted by the court without there being in place a pending application for prerogative orders. In that case, the court stated at page 81 that:- “ In all applications for prerogative orders such as certiorari and mandamus, leave must be sought and obtained before the application for prerogative orders is heard. The application for temporary injunction could only be made where leave had been granted. Since such leave had not been obtained, temporary injunction cannot stand and for that reason alone temporary injunction would be set aside” . It is clear in this regard, that where a party is seeking court’s indulgence to grant temporary injunction on matters touching on prerogative orders, it is necessary for such party to make sure that he has in the first place applied for and has been granted leave to file for the said orders, and that such an application must be in place before filing an application for temporary injunction. With this in mind, I do not agree with learned counsel Mr. Mwakolo that it is enough if such an application is based on an application for leave to file for prerogative orders as I understood him to mean. In the circumstances, I hold that the submission by the learned state attorney Mr. Malata that the instant application for temporary injunction is incompetent because there is no pending application before the court 011 which it is based is well founded. The first ground of objection is thus sustained. The second ground of objection alleges that the chamber summons and its affidavit regarding the application for temporary injunction are fatally defective as they contradict the pleadings in respect of the application for leave to apply for prerogative orders. Mr. Malata has submitted that in the statement in respect of Misc. Civil Application No. 11 of 2006, the applicant is indicated to be the Chairman of Rukwa Development Association. That is reflected as well in the accompanying affidavit to that application. He submitted that the chamber summons of that application however, indicates that the applicants are the Trustees of Rukwa Development Association. He added that even the certificate of urgency in that regard indicates that the Trustees of Rukwa Development Association are the applicants. O11 the other hand, he said, the applicant in Misc. Civil Application No. 13 of 2006 is indicated to be the Chairman of Rukwa Development Association as in the accompanying affidavit. He submitted that there is a glaring confusion as to who the real applicant is in their case. He said that in view of the fact that Order X X X V II rule 1 of the Civil Procedure Code directs that temporary injunction must be directed to the party to the case and not to the stranger, the instant application is incompetent. He relied on the case of N.B.C. v. Education and Office Stationery (1995) T.L.R. 272. Let me pose here to say that this case is distinguishable in that it said temporary injunction cannot be issued against strangers to the suit, whereas here our concern is, if at all, that such an order may be issued in favour of a person who did not apply for it. Apart from pointing out that his learned friend was responsible for the confusion in that he wrongly titled his notice of objection that the Trustees of Rukwa Development Association were the applicants, the learned counsel for the applicant has submitted that under order XLIII rule 2 of the Civil Procedure Code, there is a requirement that every application must be brought by way of a chamber summons supported by an affidavit. I share his view, that is what the law says in this regard. He also submitted that the chairman of Rukwa Development Association is the one who, as a potential witness of the Trustees of Rukwa Development Association, wrote the statement in respect of Misc.Civil Application No. 11 of 2006. In response to this, Mr. Malata submitted that the arguments of his learned friend are not tenable in that they were required to maintain the names of the parties featuring in Misc.Civil Application No. 11 of 2006 when it came to Misc.Civil Application No. 13 of 2006. I sincerely agree with him. It is undisputed that the pleadings in respect of Misc. Civil Application No. 11 of 2006 indicate that the Trustees of Rukwa Development Association are the applicants. As properly submitted by the learned state attorney Mr. Malata, this is reflected in the document titled certificate of urgency and the chamber summons, whereas the affidavit thereof as well as the statement indicate that the Chairman of Rukwa Development Association is the applicant. On the other hand, the pleadings in respect of Misc.Civil Application No. 13 of 2006 indicate that the Chairman of Rukwa Development Association is the party who is applying for temporary injunction basing on the application for leave to file for prerogative orders preferred by the Trustees of Rukwa Development Association. The document titled certificate of urgency in Misc. Civil Application No. 13 of 2006 bears evidence that the applicant is the Chairman of Rukwa Development Association, as well as the chamber summons and the affidavit thereto. Indeed, this style of interchanging the names of parties in this matter is creating an unnecessary confusion. This cannot be encouraged. Even, Mr. Mwakolo’s argument that the chairman of Rukwa Development Association had written the statement in respect of Misc. Civil Application No. 11 of 2006 because he was the potential witness of the Trustees of Rukwa Development Association cannot in my view be correct. While I find in the first place that there could have been nothing wrong for him to make such a statement had he been one of the trustees of Rukwa Development Association, as correctly stated by Mr. Malata, the statement to such applications does not constitute evidence in the matter. To the contrary, it is the supporting affidavit thereof which constitutes the evidence while the statement takes the place of a plaint. I have in mind the case of Andrew W.Mkuzi v. Tanzania Sisal Authority, Misc. Civil Cause No. 3 of 1994, High Court of Tanzania at Tanga (unreported). It was stated in that case that: “ Proceedings for prerogative orders are instituted by three documents; (1) a Chamber Summons, which, as the name suggests is a summons; (2) a supporting affidavit, which is the evidence in the application for, normally, no oral evidence is permissible in this type of application, and (3) an accompanying statement. In the statement are stated or set out the names and descriptions of the parties, a brief statement of the facts constituting the complaint, the reliefs sought and the grounds for the reliefs. In short the statement is the pleading in the proceedings of this kind. It takes the place of the plaint in an ordinary suit.” In my opinion, the interchange of names of the applicants in this matter is an irregularity. The question that follows is whether it is a curable defect. The test to be applied is whether the defect occasions failure of justice. I am of the firm view that it does not, therefore that in a fit case; this is one of those defects for which the court may grant leave to such party to amend the pleadings. With this said, the second ground fails. The last ground advanced by the learned state attorney Mr. Malata is that the affidavit filed by the applicants is bad in law for non compliance with Order VI rule 15(3) of the Civil Procedure Code. This order refers to certification of plaints. He submitted that the verification appended to the applicant’s affidavit in support of the application for temporary injection is defective in that it does not disclose the place where it was taken, or the date on which it was taken. He said that because Order VI rule 15(3) of the Civil Procedure Code is coached in mandatory terms, the omission is fatal, thus making the application incompetent for lack of a supporting affidavit. Admitting though that there was no compliance with the provision of Order VI rule 15(3) of the Civil Procedure Code, Mr. Mwakolo has submitted that the omission is taken care of by the fact that the deponent of that affidavit one Deogratius Mwarabu appeared before an advocate one E. D. Kisusi on 8.7.2006 in Dar es Salaam. He said that in view thereof, the omission is not fatal. With due respect to both learned counsel, it is beyond contest that Order VI rule 15(3) of the Civil Procedure Code refers to verification of plaints. It does not concern affidavits. The object of this rule is to fix responsibility for the allegations made in the plaint on the person who verifies and this is to ensure that false allegations are not made freely and recklessly. As was stated in the case of Tanzania Telecommunications Company v. MIC Tanzania Limited Civil Application No. 6 of 2005, CAT, Dar-es- Salaam Registry (unreported), the nature of an affidavit is to be found in Order X IX Rule 3(1) of the Civil Procedure Code, 1966. It provides that:- “ Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: Provided that the grounds thereof are stated” . The court said in that case that rule 3(1) of this order is the main rule providing for contents of an affidavit and any affidavit, properly so called, must be tested against the requirements of this rule. It added that the basic command of an affidavit is that it shall be confined to such facts as the deponent is able of his own knowledge to prove. The impugned paragraph in the supporting affidavit reads:- “ All what is stated above herein is true to the best of my knowledge (sic). Save for Para 2 and 4 which are based 011 the international (sic) given to me by the Applicant, of which I believe the same to be true” . Because the complained of requirement is not a prerequisite under Order X IX of the Civil Procedure Code, and the contents therein being no more or less than these quipped in the above quoted paragraph, I hold the view that it is a proper verification in law and so the contents of the affidavit has been verified. This ground too fails. Before I come to the conclusion, may I take this opportunity to express my gratitude to both learned counsel for their able submissions. They cited a number of very useful authorities on which I have largely depended. I am thankful indeed. In conclusion, in view of my holding in respect of the first ground that there is no valid application on which the instant matter is based, this application is incompetent. In consequence, it is struck out with costs. B.M.Mmilla Judge. 21.07.2006. I hereby certify that, this Ruling is a true copy of the original DISTRICT REGISTRAR SUMBAWANGA