HANS WOLFGANG GOLCHER v GENERAL MANAGER OF MOROGORO CANVAS MILL LIMITED 1987 TLR 78 (HC)

 

HANS WOLFGANG GOLCHER v GENERAL MANAGER OF MOROGORO CANVAS MILL LIMITED 1987 TLR 78 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Maina J

20 August, 1987

Flynote

Civil Practice and Procedure - Temporary injunction - Application for - Notice of such application to the opposite party - Whether mandatory.

Civil Practice and Procedure - Temporary injunction - Application for - Principles for granting application.

Civil Practice and Procedure - Temporary injunction - Application to issue pending hearing of intended application for orders of certiorari and mandamus - No application for leave to apply for orders sought and obtained - Whether temporary injunction may issue.

Administrative law - Prerogative orders - Application for temporary injunction pending hearing of intended application for orders of certiorari and mandamus - No application for leave to apply for orders sought and obtained - Whether temporary injunction may issue.

-Headnote

This was an application to set aside an ex parte temporary injunction issued by the High Court against the applicant who was the General Manager of Morogoro Canvass Mill Ltd., and the Director of Immigration Services. The full set of facts is in the ruling.

Held: (i) The rule that the court shall in all cases, except where it appears, that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party, is mandatory;

(ii) if the opposite party can be served without delay, as was the position in this case, an ex parte injunction should not be issued;

(iii) in all applications for prerogative orders, such as certiorari and mandamus leave must be sought and obtained before the application for any prerogative order is heard;

(iv) since no leave to apply for the prerogative orders of certiorari and mandamus had been obtained the temporary injunction cannot stand;

(v) the ex-parte temporary injunction was issued against known principles governing temporary injunctions. It cannot be said that the respondent has suffered irreparable injury which cannot be adequately compensated by an award of damages for breach of contract.

Case Information

Application succeeds.

Cases referred to:

1. Noormohamed Janmohamed v Kassamalli Virji Madhani [1953] 20

EACA 8.

2. Devan v Bhadreasa and Another [1973] EA 358.

3. Alfred Lakaru v Town Director Arusha [1980] TLR 326.

4. Giella v Cassman Brown and Co. Ltd. [1973] EA 358. G

Judgment

Maina, J.: This is an application to set aside the ex-parte temporary injunction dated 28 April, 1987 issued by this court against the applicant who is the General Manager of Morogoro Canvas Mill Ltd, and the Director of Immigration Service. The respondent was an employee working for Morogoro Canvas Mill Ltd, as Financial Controller. The annexure to this application shows that the contract of service was between the respondent and Hebox Holland Engineering B.V. The respondent was assigned by Hebox to work for Morogoro Canvas Mill Ltd. On 1 April 1987 Hebox I wrote a letter to the respondent informing

him that his contract of employment was to terminate on 30 April, 1987 and would not be renewed. The respondent also received a letter dated 10 April 1987 from the applicant dismissing the respondent from his duties "with immediate effect".

There was another letter (annexure E to the affidavit) which instructed the respondent to vacate the house he was occupying, not later than 30 April 1987. The above events led to the filing of the application by the respondent for orders of certiorari to quash the decision of the General Manager, and mandamus to compel the applicant General Manager to hear the respondent in accordance with rules of natura justice, and for an injunction to restrain applicant from harassing him.

On 20 April 1987 the matter came before the Hon. Jaji Kiongozi who issued an exparte temporary injunction restraining the Director of Migration services from deporting the respondent pending the hearing of the case and also restraining the applicant from evicting the respondent from his quarter during the pendency of the case. It was Mr. Uzanda's submission that the temporary injunction was incompetent because it was in breach of Order 37 Rule 3 of the Civil Procedure Code which provides as follows:

The court shall in all cases, except where it appears, that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The above rule is, I think, mandatory. If the opposite party can be served without delay, an ex-parte injunction should not be issued. In this connection, Mr. Uzanda referred the court to two decisions of the Court of Appeal. In Noor mohamed Janmohamed v G Kassamali Virji Madhani (1953) 20 EACA 8 at page 11 the court said:

The requirement to give notice is clearly mandatory and it cannot be disputed that the onus of H satisfying the court that there is a good cause for dispensing with it will lie upon the applicant.

The decision in the Noormohamed case was followed in the latter case of Devan v Bhadreasa and Another [1972] EA 23 in which the parties were living in the same I premises, and therefore there would have been no difficulty in serving the opposite party with the chamber summons. The ex-parte interim injunction was set aside. In the present case, there is no dispute that the respondent is living near the applicant's house and had this been raised at the hearing of the application for temporary injunction, the court would have required notice to be served on the opposite party.

Furthermore, there was no application made, no reasons were given, and also no order was made dispensing with the requirement of giving notice to the opposite party. Mr. Massati conceded that in the affidavit filed in support of the application for temporary injunction, there was no mention made for dispensing with notice.

He also conceded that Order 37 Rule 3 of the Civil Procedure code is mandatory. However, he said that the matter was urgent and that service to the opposite party would have caused delay. With respect, I do not agree. The respondent knew that the General Manager was living in the same neighborhood of the respondent's house. I do D not see what delay would have been caused by sending notice to the applicant. Mr. Massati also said that the application to dispense with notice can be made informally. But, with respect, there was not even an informal application to dispense with notice. The letter to the Registrar of the High Court that the matter was urgent, was not, in my E view, an application to dispense with notice to the opposite party. That letter merely asked for an early hearing.

Mr. Massati submitted further that he could not ask for notice to be served to the opposite party because the application for leave to apply for orders of certiorari and mandamus had not been heard. In all applications for prerogative orders, such as certiorari and mandamus, leave must be sought and obtained before the application for any prerogative order is heard. In my view, the application for temporary injunction could only be made where leave had been granted. In this case, when the application for temporary injunction was heard, no leave to apply for certiorari and mandamus had been granted by the court. It seems to me that if the court had been told on 28 April 1987 that in fact leave had not been granted to apply for certiorari and mandamus, the application for temporary injunction would not have been entertained. The court proceeded with the hearing of that application on the assumption that leave to apply for orders of certiorari and mandamus had been granted. Since such leave had not been obtained, the temporary injunction cannot stand and for that reason alone, the temporary injunction would be set aside. 

I would go further and say that the temporary injunction against the Director of Immigration Services was incompetent for another reason. As Mr. Uzanda submitted, the Director for Immigration Services was not a party to these proceedings. He was a stranger to the case. The ex-parte injunction was made against a stranger. Mr. Massati conceded but said that the court had discretion undersection 95 of the Civil Procedure Code to make the order. I do not agree. Section 95 gives inherent powers to the court "to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". It does not empower the court to make orders against a stranger to the case. There are provisions in the Civil Procedure Code for joinder of parties and Mr. Masati could have applied for the Director of Immigration Services to be joined as a party to his application, and then ask for orders against the Director. This was not done and I do not see how the injunction against the Director of Immigration Services who was not a party to the case can be supported.

The temporary injunction against the Director of Immigration Services can be set aside for another reason. Mandamus can only lie against the Director if it were shown that he had been requested by the respondent to perform certain duties and the Director either failed or refused to perform those duties. There is no such allegation in this case. As Mr. E Salula, learned State Attorney, submitted, on behalf of the Director of Immigration Services, because the respondent's employment ceased, the residence permit he holds is invalid. The respondent has not asked for another permit. If the respondent applies for another permit in another class, that would be considered by the authorities to enable the F respondent finalise his affairs in this country.

Another point raised by Mr. Uzanda was that the ex-parte temporary injunction was issued against known principles governing temporary injunctions. Learned counsel submitted that an applicant for an interim injunction must establish a prima facie case with a probability of success and that the facts must show that if a temporary injunction is not granted, the applicant would suffer irreparable injury which cannot be adequately compensated by an award of damages. He cited the case of Giella v Cassman Brown H and C. Ltd [1973] EA 358 at page 360. It was Mr. Uzanda's submission that in this case neither certiorari nor mandamus can lie. I do not wish to restate the facts of this case. All I can say is that it appears to me from the affidavits and the annextures that the respondent was employed by Hebox Holland Engineering B.V and was only assigned by I Hebox to work for Morogoro Canvas Mill Limited.

So, there appears to be no contract of service between the respondent and Morogoro Canvas Mill Ltd. The applicant's letter dismissing the respondent from his employment is of no effect whatsoever. The position appears to be that Hebox informed the respondent that the respondent's contract of service would expire on 30 April 1987. The applicant had no power to dismiss the respondent. The application to quash the decision of the General Manager Morogoro Canvas Mill Ltd, is to me meaningless because the General manager had no power to dismiss the respondent who has been notified earlier by his employer that the contract of service would expire on a specified date.

As for mandamus, I agree that the applicant General Manager has no public duty to perform. In Halsbury's Laws of England, volume eleven, Third Edition paragraph 172 at page 54 the learned author states as follows:

Mandamus will lie towards any person or body in respect of anything which appertains to his or their office and in the nature of public duty. 

The applicant General Manager has no public duty to perform with respect to the respondent's employment. I agree with Mr. Uzanda that neither certiorari nor mandamus can lie. Furthermore, mandamus cannot lie where there is some other legal remedy available. See Alfred Lakaru v Town Director Arusha [1980] TLR 326 at page 327. In my view, the application for certiorari and mandamus has no possibility of success.

Finally I do not think that the respondent can say that he has suffered irreparable injury which cannot be adequately compensated by an award of damages. He can file a suit against his employer for damages for breach of contract. That is a legal remedy available to him.

For these reasons, the application succeeds. The temporary injunction dated 28th April 1987 is set aside. The respondent shall bear the applicant's costs.

Application succeeds.

1987 TLR p84