20000329 TZHC Dar es Salaam

IN THJ~ HIGH COURT OF TANZANIA (DAR ES SALA.AM DIS~rRICT REGISTRY) AT DAR ES SALA.AM CIVIL REVISI9._~ N0.17 OF ?..22:Q DAR ES SALAAM INSTITUTE OF Ti::CHNOLOGY. oooooooco•O APPLICJ\NT Versus .HENRY IGNJ\.S MR~MA oooonooo00C:C'41i'OOOOtOO:>CIOOOOCl••O RESPONDENT RU L·.I NG - CHIPI;;TA, J.: ,.I In the Resident Magistrate's Court at Kisutu in Civil Case No.374 of 1999 the present responde!lt, Henry Ignas Mrema, claims from the applice.nt/defencl.ant, Principal of Dar Es Salaam Institute of Technolo~ claiming for an order that the defendant's order that the plaintiff clos~a his business be rescinded, or in the alterne..tive, payment of danm.ges. The order requir~d the plaintiff to vacate the suit premises by 18th October, 1999. The plaintiff also filed an appli.cation for a temporary injunct~on. The suit came up for mention on 15th October, 1999. On that day, the defendant was c1.bser.t. I1i the application of learned advocate for the plaintiff, the court made an interim order to the effect that a status quo be maintained pending the hearing of the application. Hearing was then fixed for 28th ·october, 1999, and the defendant was duly served ' with the order,.-to maintain a Gto.tus quo. 2 On 28th October, 1999, the defendant appeared by an a.dvocate. It was then ordered that the defendant should file a counter a+'fidavit and written statement of defence ty 11th November, 1999 and

hearing was put off to 18th November, 1999. The case was later adjourned to 1~-th December, 1999 and then again to 11th February, 2000. On 11th February, 2000, learned counsel for the defendant· was present but the plaintiff and his advocate were absent. H~aring was then adjourned to 13th March, 2000. Meanwhile the defendant fenced off a toilet used by customers in the suit premises, in wl:-.ich premises the plaintiff runs restaurant business. In addition, the defendant d:i.sconnected eletrici ty to the suit premises. So on 16th February, 2000, the plaintiff filed an application under a certi.ficc1.te of urgency praying for an order caliing upon the defendant to show cause why he should not be committed to prison for disobeying a lawful order made· by the court on 15th October, 1999. The plaintiff also rna.de a prayer for an interim order to the effect tb.F,.t the defendant be ordered to remove the· fence a11.d gc::i.te and restore electricity. The interim order was granted on 17th February, 2000. The ord.er was duly served on the defendant who wG.s required to show ca.use on 25th February, 2000. The defendant refused to obey the interim order. So on 22nd February, 2000, the court or~lered that a. summons to shot·s cause ·be served on the defendant to a.p;pear on 23rd February, 2000. The summons was issued, but_the· respondent refused to accept service, and he did not appear

before the court on 23rd February, 2000. It was then that the court ordered a warrant of arrest to be issued against 3 . . the defendG.nt ~ That order was made. on· 24th February., 2000. But . . before it was executed, the defendant wrote a letter of complaint to the Principal Judge complaining ag~inst what he called ex,..parte orders and the wa.rrant of arrest when he was not aware of the issue.. .. I have heard tht~ submissions of the learned advocates in these proceedings. It ca.,not be disputed that interim orders are made, where the interests of justice so d0mand, even ex-parte if it is felt that the purpose of an application or a suit ·would be defeated if no such order is made. In this instant case the order of 15th Octobsr, 2000 was marl.e in the light of the fact t~at the de fondant I s notice gave the plaintiff only until 18th October, 1999 to close his business. Besides; it was no more thw. an interim order to maintain a status quo.· Th0 issuance of that order, in my view, was necessary to protect the interests of justice for, otherwise the application for a temporary injunction would have been rendered migatoryo For these reasons, the complaint as again.st the order of 15th October, 1999 is baseless. I think that the defendant appreciates it because, on subsequent appeara..'1ces, • th0 defendant raised no finger against that order. I now turn to the interim order of

17th Februo.ry, 2000 •. That interim order·was made in the wake of the precipitate actions of the respondent in direct violation of the order dated 15th October, 1999. In the circu.rn.:::tances in which. the plaeiti ff had been placed, for no fault of his own, the interim order was neccssa_ry· and justly made. Finally, I turn to the issuance of a wctrrant of arrest. There was evidence that the· defen~e.nt had disobeyed. earb ,:;r orders and capped that ·up with his refusci.l to accept ser,rice. What., in those circumstances, should ·the court hcwe done'7 Eat its words'? I ·o.o not think so • . In the upshot, I have found no merit in the applicant's complaint. His hands were not entirely cl8an. Af the saying goes, those who come to equity must come with clean hands. For these reasons, I order thd the orders me.de on 1_5th October i 1999 and 17th February, 2000 sh;~ll remain inforce. But in the interests of justice, the order for the arrest of the defendant be, anrl is hereby, vacated. The record of the trial court shall be returned. to the trial court so th?-.t· the case is disposed of. The complainan.t/defendar.t appears to ·be unhappy with the trial magistrate. I feel that he should. voice h:i.s concerns with the trial magistrate in Court. It is so crdered~ B. De CHIPBTA

JUDGE Ruling delivered in Court this 29th_ day of March, 2000. B. D. CHIPETA

JUDGE Mr. Kamug:i.s~: for Applicant. Mr. Mushumba: for Respondent. I \, ... 5 I Certify that this is true Copy of the OriGinaL