T.A. Kaare vs General Manager Mara Cooperative Union (1984) Ltd [1987] TZHC 8 (1 May 1987)


Mapigano J.:  I heard this appeal on the 6th inst.  The respondent was absent though he had been duly served with a notice of hearing.  I allowed the appeal and reserved the reasons.  I will now state the reasons. H
The appellant Timothy Marwa Kaare was once a civil servant.  On 5th June, 1979 he joined the Mara Industrial Company Ltd. on secondment and held the post of Industrial Economist.  He was allocated one of the residential houses that had been let to his employer by the Tanzania Housing Bank situated at Makoko in Musoma Township.  In I May, 1980 he was promoted to the post of

"Economist, Production and Marketing Manager".  That was after he had opted to A remain with the company as a permanent employee.  In due course things went awry for him.  For certain reasons the Executive Board of the company terminated his employment with effect from the 22nd, 1983.  Feeling aggrieved, he made several protestations and called to some higher authorities.  His strenuous and sustained B exertions attained success of sorts.  They resulted into convening of the company's Board of Directors to review the termination on the 21st June, 1984.  After some deliberations the said Board resolved to vacate the termination and to reinstate him in his C former employment.  What happened, however, is that by then the appellant had already attained the age of 55 years and the Board directed that he be retired, on the grounds that the retiring age, according to the terms of his employment, was 55 years.  On being so notified the appellant resisted the decision of the Board, contending that the Dretiring age was not 55 years and declining to receive the proposed terminal dues.  It was all for naught.
At the instance of the Union the District Commissioner of Musoma served the appellant with a written notice to quit the premises that had been allocated to him by the Union by E the 28th August, 1986.  The appellant reacted by seeking judicial redress :  On the 24th August, 1986 he instituted legal proceedings in the Court of Resident Magistrate at Musoma to challenge the said notice, and the only relief he claimed and still claims is a perpetual restrictive injunction restraining the General Manager of the Union, the F respondent herein, or his servants or agents, from evicting him from the premises on the grounds, inter alia, that there was a labour dispute still pending between him and the respondent in respect of his being retired from the employment.  The respondent contested the action and presented a written statement of defence on the 19th August, 1986. G
Next, on 25th August, 1986, i.e, before the expiry period of the quit notice, the appellant made an application for interlocutory injunction under the relevant provisions of Order 37 of the Civil Procedure Code to restrain the respondent from ejecting him from the premises during the pendency of the suit.  The application was heard on the 27th H August, 1986 and the learned resident magistrate started by framing and recording two issues, to wit : (a) whether or not the plaintiff is still entitled to remain in possession and occupation of the premises; and (2) what remedies are the parties entitled to.  After I recording and considering some evidence the learned magistrate turned down the application.  The learned

magistrate's reasons for the decision are three fold :  First, the applicant was properly A retired from the employment because, he said, the appellant was employed as a civil servant and by virtue of statutory provisions, which were not specified, the retiring age was 55 years; secondly, there was no evidence to support the appellant's contention that there was a labour dispute pending between the parties; and thirdly, the appellant had B displayed unmeritorious conduct in that, he stated, the appellant refused to fetch his retirement benefits.  The decision of the learned magistrate was delivered on the 3rd September, 1986, and being dissatisfied with it, the appellant brought the present appeal to this court. C
The first ground is that the learned magistrate erred in law in purporting  to determine the principal matters in the main suit.  It is quite true that the learned magistrate dealt with such matters and quite at length at that.  Indeed, the recording of the issues and the way they were formulated, the content and tenor as well as the drift of the Ruling, and the fact D that the findings on the issues have an air of finality, leads one to reasonably apprehend that the learned magistrate went out of his way and purported to decide the main suit.  Lest I am misunderstood, let  me be quick enough to point out that I am not saying that the learned magistrate was not obliged to consider the point whether or not E there was a substantial question to be tried by court.  Nor am I suggesting as the appellant would have me do, that the learned magistrate was not entitled to assess the materials before him in regard to the question of retirement.  But in my opinion the scope of that exercise should have been limited to the question of the bonafides or otherwise of F the suit and its entertainability by the court.  For the real point to which the learned magistrate should have applied his judicial mind is not  whether the suit holds forth bright prospects of success or how the suit ought to be decided at the hearing of the case but whether there is substantial question to be inquired into and whether matters should not G be preserved in status quo until the final determination of the suit.  There is thus some merit in the first ground.
The second ground is that the  learned magistrate erred in holding that there was no pending labour dispute between the parties.  The appellant relied on a letter of the H Secretary - General of JUWATA dated the 23rd June, 1986, which he addressed to the Mara Regional Secretary of JUWATA instructing him to pursue the appellant's complaint.  I confess it is a fine point whether that letter is by itself enough to constitute a labour dispute, especially in view of the fact that there was nothing to show that the I addressee

had complied with the instruction and taken up the matter.  In my view, therefore, the A learned magistrate cannot be faulted for holding as he did.
The third ground of appeal is that the learned magistrate was not justified to hold that the appellant's conduct was unmeritorious.  I respectful agree. Surely the mere fact that the B appellant has declined to collect the retirement dues cannot be fairly described as an unmeritorious conduct under the circumstances. The collection of those dues would have appeared to be inconsistent with his contention that his retirement was unwarranted, though of course it would not at law have prejudiced his case. Still, I am unable to go C further and say that the findings of the learned magistrate was born of prejudice, as the appellant has charged in the memorandum of appeal. The fourth ground is that the learned magistrate erred in overlooking the illegality of the eviction notice. This is a strong point. Quite evidently what precipitated this action was the quit notice of the D Musoma District Commissioner. That notice is, in legal parlance, the cause of action, and as I see it the action stands or falls on the lawfulness or otherwise of that notice, because if the notice in question is unlawful, then it is ipso facto inoperative.  One has to consider E and decide the question whether the District Commissioner was vested with authority to give such notice in order that one may decide whether matter which eminently commends the suit to serious investigation by the court of trial, which as already indicated, is one of the circumstances that has to be considered on an application for an interim injunction. F
The last ground is that the learned magistrate erred in that he did not apprehend that the ends of justice required the granting of the temporary injunction.  Properly, so.  However, the appellant should rather have put it differently, like this:  the learned magistrate did not appreciate the true nature and parameters of the application and, in G consequence, he non - directed himself to the law applicable.
As we have seen, the appellant was suing for a permanent injuction and during the course of and before the suit was called on for hearing he brought the application with a H view to remaining in possession of the suit - premises pending the conclusive disposal of the proceedings. The power to grant such an application has always been discretionary, to be exercised judicially by the application of certain well - settled principles.  The first such governing principle, as indicated supra, is that the court should I consider whether there is a bona fide contest in between the parties.  Secondly, it should  consider on which side, in the event of the

plaintiff's success, will be the balance of inconvenience if the injunction does not issue, A bearing in mind the principle of retaining immovable property in status quo.  Thirdly, the court should consider whether there is an occasion to protect either of the parties from the species of injury known as "irreparable" before his right can be established, keeping it in mind that by "irreparable injury" it is not meant that there must be no physical B possibility of repairing the injury but merely that the injury would be material, i.e., one that could not be adequately remedied by damages. With due respect, let it be said that the learned magistrate did not pause to address his mind to these points, let alone C pronounce on them, and I am disposed to think that if he had done so he would most probably have granted the application.
D Appeal allowed.


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