Henry Lyimo vs Eliabu E Matee [1991] TZHC 12 (9 August 1991)


Kyando, J.: The applicant is the defendant in (RM) Civil Case No. 32 of 1990 filed in the Resident Magistrate's C Court "at Dar es Salaam". In that suit the plaintiff/respondent avers; inter alia, that he is the beneficial owner of all that land at Kinondoni Shamba wherein there is a building known as ARAWA BAR RESTAURANT AND D GUEST HOUSE". He also avers that "in 18/7/19 (sic) the plaintiff entered into an oral business agreement with the defendant" whereby they agreed that they "will carry on business of bar, restaurant and guest house on the said land", and that the defendant now is attempting to sell the suit premises and some personal properties belonging to E the plaintiff secretly to some persons unknown to the plaintiff.
The value of the alleged suit premises and/or the personal properties has not been indicated in the plaint. This is violative of 0.VII r. 1 (i) of the Civil Procedure Code, 1966, which requires that amongst the particulars to be F contained in a plaint are "a statement of the value of the subject matter of the suit for the purposes of jurisdiction and court fees, so far as the case admits".
Be that as it may, the plaintiff has then prayed for the following reliefs, amongst others:
G (1) A declaration that he is the lawful owner of the suit premises, and
(2) A permanent injunction to restrain the defendant either by himself, his servants or agents from either entering the suit H premises or selling the suit premises or any of the plaintiff's property in the suit premises.
On the 25th of April, 1990, he (the plaintiff) presented an application in the court below for temporary injunction to restrain the defendant, his servants or agents from either selling the suit premises or any of the properties in the suit I premises which belong to the plaintiff pending final determination of the suit. He also

prayed for a temporary closure of the business pending final disposal of the suit. In a ruling delivered on 16/5/1990 A the court (Kimaro SRM) granted all the above prayers. The applicant/defendant then filed this application in this court praying that the order of closure of the business contained in the Magistrate's ruling be revised.
At the hearing of the application before me, after Mr Mkondya for the applicant/defendant had submitted in support B of the application, Mr Mbuya replied by stating that the application, having been brought under Section 79 of the Civil Procedure Code, is incompetent because, he argued, the order which it is sought to be revised was an interlocutory order, whereas Section 79 of the Civil Procedure Code applies to cases which have been decided. In C support of these contentions Mr Mbuya referred this court to Kassam v Regional Land Officer [1971] HCD n.15 and Jayantilal Gandesha v Kilingi Coffee Estate Ltd. & Another[1968] HCD n. 399. On the basis of the decisions in these cases Mr Mbuya submitted that the applicant's/defendant's application be dismissed. D
In reply, Mr Mkondya submitted that the application by the applicant is also brought under S.95 of the Civil Procedure Code. He also argued that though he had not so stated in the application, under s.44 of the Magistrates' Court Act, 1984, additional powers of supervision and revision have been conferred on the High Court. He E submitted therefore that under these, latter provisions the High Court can, by revision, intervene in interlocutory orders of Magistrates' Courts.
In the case of Kassam v The Regional Land Officer (supra) it was held that s. 79 of the Civil Procedure Code F would not apply to revise a decision of a subordinate court over an interlocutory matter.
In Jayantilal Gendesha v Kilingi Coffee Estate Ltd. & Another, the facts and the holding of the court on the point were as follows: G
The suit proper involves a dispute over a contract between the parties for the sale of a farm. Plaintiff's advocate, who had acted for both the parties during the negotiation of the contract, was called by defendant as a witness. Plaintiff objected that H to allow this would amount to an abuse of the process of the court. The court permitted the summons to issue, and in addition ruled that in view of his role as a witness, plaintiff's advocate should be his retainer. This petition for revision is concerned only with these rulings. I

A Held: (i) This petition for revision was brought under section 79 (1) of the Civil Procedure Code, 1966. The High Court observed that it could have been brought under the Magistrates' Courts Act, Cap. 537, ss. 38, 39 as provided by s. 79 (2) of the Civil Procedure Code, which gives the High Court wider revisional powers than 79 (1). As plaintiff's petition did not refer B to the latter provisions, however, the court limited itself to s.79(1), which provides for revisional jurisdiction over decided cases. Whether an interlocutory decree may come within the meaning of "case" is a thorny question on which the authorities C diverge ... The present situation cannot qualify as a decided case under any reasonable definition. It was an interlocutory matter, unconcerned with the final decision or that of any of the issues before the court and was concerned entirely with a step in the procedure ....
D As noted above, Mr Mkondya relies also on s.95 of the Civil Procedure Code. I am of the view that that section cannot be had recourse to in this matter when there are specific provisions providing for revision (see (Ryan E Investments v USA [1970] EA 675). It is only a matter of those provisions being complied with by the applicant. As for the revision provisions in the Magistrates' Courts Act, 1984, as the case above holds, because those provisions have not been referred to in the applicant's application this court will only limit itself to s.79 of the Civil F Procedure Code under which the application has been filed.
The order made by the learned magistrate is clearly an interlocutory one. It is an interim order pending the determination of the case. It is therefore not a case decided within the meaning of the provisions of s. 79(1) of the G Civil Procedure Code and this court has no jurisdiction to invoke its revisional powers as provided for in that section. So, though the order (of closure of the business) appears patently unjustified, unlike the order for temporary injunction restraining sale or disposition of the properties, this court will not interfere with it by revision. H The applicant's/defendant's application, therefore, is dismissed, with costs.
I Application dismissed.


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