tanzania union of industrial and commercial workers tuico ottu union and another vs tanzania and italian petroleum refining company ltd 2000 tzca 10 6 march 2000

CIVIL APPLICATION NO. 110 OF 1999 In the Matter o f an Intended Appeal BETVJEEN 1. TANZANIA UNION OF INDUSTRIAL AND COMMERCIAL W03KEBS (TUICO-OTTU UNION) APPLICANTS 2. JOHN NDOKIIS MtfAKABVALE (TUICO Branch Chairman at' TIFER) AND TANZANIA. AND ITALIAN PETROLEUM RESPONDENT REFINING COMPANY LTD. (TIFER) (Application fo r Interiro Injunction Pending Appeal from the Decision o f the High Court o f Tanzania at Dar es Salaam) (Manento, J .) dated the 16th day o f December, 1999 in C iv il Case No. 422 o f 1999 RUL I NG RA?4:'DK.LNI, J The applicants file d a suit in the High Court asking fo r declaratory orders on a number o f matters. However, pending the disposal o f that suit, they applied for a te; injunction to restrain the respondent from t err: in •’tin g th eir employment on redundancy. On 16/12/99 MANENTO, J. dismissed the application for temporary injunction- The applicants have appealed against that refu sal. Pending the hearing o f that appeal, the applicants have come before me fo r a temporary injunction* P ro f. S h iv ji, learned counsel fo r the applicants, took some time showing that th is Court has powers to grant temporary injunctions pending appeals, However, Mr. Kilindu, the learned advocate for the respondent, conceded that this Court has such inherent powers. I t is also my considered opinion that that is so and thus the issue need not detain us. P ro f. S h iv ji also, and rig h tly , too, cited an authority to the e ffe c t th;,t an appeal lie s against an order granting or refusing an interim or interlocutory injunction (Rich rd Kuloba in Principles o f Injunctions, Oxford University Press, Nairobi, 198? p. 70). Mr. Kilindu, again, agreed with th is. Therefore, the appeal against the ruling o f MANENTO, J. is quite in order and so is this application. Both learned counsel are again at one that there is abundant authority for the proposition that temporary injunction is granted in an application pending appeal where the appeal has chances o f success. 'This is to avoid rendering the appeal nugatory. I t follows then, that injunctions w ill not be granted in the case o f a frivolou s appeal. (See Wilson v. Church, (No. 2) (1879) 12 Ch. D. ^5^, C.A. and P o lin i v. Gray, (1879) 12 Ch. D. ^38, C.A. and as propounded by authors lik e Kuloba at p. 70 and David Bean in I njunctions (FT Law & Tax, 7th. ed. 1996 p. 119). Likewise, a temporary injunction w ill not be granted where i t would in f lic t greater hardship than i t would avoid. (Enrinford properties Ltd. v . Cheshire County Council, /l97^7 1 Ch. 261 at 268). Let us see how the established leg a l prin ciples. apply to the present application. P ro f. S h iv ji submitted that the intended appeal has great chances o f success because in dealing with that application fo r temporary injunction, the learned Judge touched upon merits and demerits o f the su it. Sm , one o f the grounds o f appeal is that the learned t r i a l judge took into account matters which he should not have taken into account. Mr. Xilindu, on the other hand, had four points in res istin g the application. F irs t, he argued that the applicants are merely apprehensive that they are going to be la id o f f because o f redundancy and that is not a s u ffic ie n t circumstance for ordering a temporary injunction. Second, and in the altern ative, even i f there is redundancy, the respondent is Obliged by law to consult the applicants or else the exercise is going to be a n u llity (Hamisi A lly Ruhondo v. Tanzania-Zambia Railway Author i t y , C iv il Appeal No. 1 o f 1986 (C.A.) (unreported) and Georaje Barabara v. Min is te r o f Labour, Misc. C iv il Cause No. 30 o f 1993 (H.C.) (unreported). Therefore, this application is superfluous. Thirdly, the employer - employee rela tio n is contractual and a remedy for breach o f contract is damages and not a temporary injunction. He cited ^Oresswel l v. Board o f Inland Revenue, /198^7 2 A ll 33 3 at 719 and also David Bean at p. ^5* Lastly, i f an injunction is ordered in the present case, the injury which is going to be caused w ill be greater than that which is sought to be averted. The reason given is that business on the part o f the respondent is bad and i f the company is prohibited from declaring the applicants redundant, then i t w ill be forced to borrow money in order to pay them salaries. P rof. S h ivji replied that the authorities which Mr. Kilindu cited dealt with private law, contract, but in the present application the issue is a statutory provision requiring consultation with workers in the case o f impending redundancy. In this application to deal with the issue o f the success o f the appeal w ill be skating on extremely thin ice and I might find myself dipping into the merits o f the application just as the High Court did. And that is one o f the reasons why there is an appeal pending in this Court. However, I think that I am in order to say that Mr. Kilindu conceded that declaring the applicants redundant without consultation is i l l e g a l . In fact, he went further to say that the respondent company ...A k has committed i t s e l f to negotiate with the applicants before declaring them redundant. I f that is so, I ask myself, what harm is there in backing up that commitment with a Court order for temporary injunction7 I cannAt find any. There is a passage in E rinford Properties Vj_ Cheshire County Council at p. 268 which supports th is inclination o f mine in backing up this commitment: A judge who fe e ls no.doubt in dismissing a claim to an interlocutory injunction may, p erfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative e ffe c ts o f granting or refusing an injunction pending an appeal are such that i t would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted pending the t r i a l is inconsistent, either lo g ic a lly or otherwise, with holding that an injunction should be granted pending an appeal against the decision not to grant ,the injunction, or that by refusing an injunction pending the t r i a l the judge becomes functus o ffic io quoad granting any injunction at a ll. Here I am lik e a t r i a l judge because whatever decision I make, i t can be subjected to a reference before a f u ll Court and I think i t may be right to preserve the status quo. I agree with Prof. S h iv ji that th is matter is unlike the situations obtained in breaches o f contracts. Here there is a. statutory requirement. As to whether or not the applicants are apprehensive, I think, is an issue to be determine in the main application for a declaratory order that there should be consultation pending imminent redundancy. For th is reasons given above I grant the application. Costs to follow the event. * DAT?® at DAE SS SALAAM this 6th day o f March, 2000. A.S.L. RAMADHANI JUSTICE OF APPEAL I c e r tify that this is a true copy o f the origin a l. ( A.G .^K V A B U A ) DEPUTY REGISTRAR