19970221 TZHC Dar es Salaam

lil\SJID 1.~IDH'-JA;\ •••••••••••••••••••••••••••••••• APPELLANT cTl]T)GrfJ.:NT Trust for the purpose of Re1igion., OF - - -HUT~,\f ~R Tfu'':J,TI-1 ,_,..=--~ . t,.L - ~- I3Ll\.H ------- . ---- The responrlent THE Rr-;Gir:'rER1i]) TRU','l'EES ·- - - - is a Registered Trust for the ,)urpose of :Cducntfon . in D'Salaam. It is in the record tbat by .l\.greemcmt dated 14th December 1994 the appella.nt and the respondent agreed to underte.ke a joint educational project for the purpose of education by establishing a schoold of Accounting and Auditing called RIDI-r !!\lt '~:;;; 'INARY. It \JaS also a[7,reed that the appellant were to provide the premises whil0 the respondent wa.s to provide education and teaching materials., • Students were eurolled and terJ.chers were recruited for 1995 academic year., The ,school oparatcd in 1995 n,s scheduled. La.ter there WRs a friction or rather a misunderstanding between the management of the school (respondent) and the management of the mosque (appell,::int) which led to the termination of the agreement. The respondent resisted the ter·:Jina.tion ::ind fiJ.ed .a suit before the Resident M,1Bistrates Court at Kisutu claiming for, inter o.lia, ( a) a permo.ne,1'.; injunction rcstrnining the e,lJpell!lnt or their -:1gents or workmen or employc1es from closinc; or locking out students and teachers (b) a specific porfor111ance of the agreement and (c) genera.I darnages 0 2 The appellant resist(:?d tbe application on the ground that the temporary order would brinr• choas to the ''Jo,squco The trial c•mrt was of the view th,:1.t closing the school would be to .J..l, preierrect he school to remnin open continue with its school activities stldents. However it found itself with one crucial issue for decision, th,,.t is n who should run thci school as between the appellant and the respondent while the r:1ain case is st ill pending?11 • After a co.reful considero.tion of the learned. counsels's submission.s together with the overall circumst:mces surrounding tbis c2.se the trial court was of the opinion that the respondent should continue running th2.t school until deternil1.'.·•tion of the main suit~ The apneJlo.nt,s i-1ere aggrieved. They lodged this appeal througl" the l.:;-;al services of l';ro Mchora loarned coun.c3el. At fir,st Mr. Hchora a:pplfod Cl.lso for stny of execution. But later he withdraw th2.t application after findinG or feeling th&t it had autlived its urgency and importance. Urguing tho appe::11 Mr. Mwengela learned counsel from Mchora i?c Company (i\dvocate) argued that it 1,1as not proper for the trial court to issue the order pr.::yed for because that order W3.S not interlocutory as its effect detemined the issues in the ,,,nin suit finally and conclusively secondly, he said, 0 the order was not interlocutory to the reliefs prayed for in the nnin suit and therefore the trial c,·,urt ,s 11ou1d not have issued it. Mr. Mwengela 's third argument is that ,since the servicer:, of tae respondent had been terminated, the resµond0nt \1ad no ',Jore i.nter.1st over the nntter before the court, and_ therefore ,shoqlJ not have been alloi,red to run the school. :.. In reply the respondent's learned courn3el tho late Mr. Lipiki replied that the interlocutory order did not determine the Fl 3 { The late Mr Lipiki also replied that the application for the interlocutory order was properly before the trial court by virtue of So 68 (c) and 95 of the Civil Procedure Code, 19660 He therefore called upon this court to dismiss the ~ppeal with costs. As I said ea.lier this a eo.l is ·ust in res ect of the interlocutor, order. The conditions for grant of aninterlocutory order are very well l:mo1rm 0 TheY. are threeo Firstly th·e applicant must show a prima facie case with a probability of a success. secondly the applicant must show that if the interlocutory order is not granted he will suffer irreperable loss which cannot adequately be compensated by an nward of darnaGes. Thirdly if the court is in doubt it will decide an application on the balance of convenience. Thero are numerous aut 1·1orities laying empha,sis on these conditicu:. IBn~'l,I]·~___v3 _I£~:~~(_~~) HC NO 2~ 0 These inclu'.ic the cases of ( i) J:3R(NN CO LT!)------.-- & (1973) .........358, and (iV) B!, .....__... 1 _,. _____ ________ ( ii) Zh:}_~--1J'21:J~•;_'!'RIES V ~°FOODS q_9_zg_) E1l, l~21, ( iii) GIBLJ;;'i,__v L'I.SSMJ\N ----------· C .T CIVIL APPLICP,.TION !.9.2.:Ll1.12LP·JAI & JOHN ~~· !J\J;_ v ~~~~DB2._LOLIMPIJ\ r·rAINAo , NO 18 OF In the present case the first condition, that is, whether the 8.pplicant at the trial court showed a prime facie case with a probability of success is not easy to determine. nut accordinG to the pleadings the applicant who is no'.J the respondent had a prim,:1. facic case worth consideration and determin.'.3.tion by the courto But uhether there was a probability of success is a matter of evidence to be adduced in the ·nain ~suit., . /\.s f,_,r as the second condition is concerned closure of the school would deprive the students the education they ,so badly needed. Loss of education cannot ndequatcly be compansated by an a ward of dame.ges., • The third condition is on the balance of convenience, that is, whether the applicant will suffer more if the interlocutory order: is not gro.nted then the rc,sponclent 1-JOuld suffer if the interlocutory order is granted. !tccord:i.n;': to the overall circumstances surroundj_n13 this case I have granted the applicant who is no 1-1 the respondent wonld have suffered more than teachers would have no students to all a school is only worth its name when the.re are students schooling onp. teachers teachin~e 4 Lastly I have only one remark t0 'make in passing. i\.fter a careful perusnl of the plea.dings it would nppear that the, real quarrel is not beh,een the Rogis;-~red · Trustees of Mutar:1ar Ill Islam and the Registered 'I'rustees of llasj :i.d ltidhwaa but anther between MR. HAMZ1\ SOKO as Secretary ·1 ' - to the Board of Il3Bl', a.nd the Registered Trustees of Masj id Ridhwaa as clearly demonstrated in Annexture A (Letter of dismissal). It is.only my great hope that their qunrrel shold not be the detriment of the studcmt:Ja With all this it is as Deen odged without sufficient grounds 8 It is hereby dismissed with costs. The record of the trinl court is to be re::turned to the trial court immediately fo;r continu:~,tion of hearing and determinj_ng the mail1 suit unless the appellant wishes to appeal to the Court of Appeal of Tanzania. So N. KAJI -- JUDGE 21/2/1997 Court: Ruling has been delivered in the presence of Mr. Swai learned counsel holding brief for Mr. Hchora learned coun.sel and Mr. Fadhili Zuberi for t11r: responc'!.cnt this 21st day of February, 1997. JUDGE 21/2/k997 · ·"'· :.~he Certified that true copy of/Original. E.R" Manento SENic:R DEPUTY RBGISTRAR