Attitlio v. Mbowe Civil 95

Facts

The plaintiff is the lessee of the Splendid Hotel on Independence Avenue, Dar es Salaam. The defendant is in possession of three rooms in the hotel as well as the bar area which he operates as bar and night club. In the plaint, the plaintiff claims among other remedies vacant possession of the three rooms and the Bar premises as well as an injunction to restrain the defendant, his servants and agents from using the 3 rooms, Bar premises, night club premises. On the filing of the writ the plaintiff applied for and was granted a temporary injunction restraining the defendant from running the bar and night club. Later a stay was granted. The issue for determination was whether the temporary injunction should continue until trial or not.” The Bar and night club had been closed since March 1969. Negotiations were in progress between the plaintiff’s attorney and the defendant for the sale of the business. The plaintiff alleged that he had given the defendant an option to purchase exercisable by 10th June, that he defendant was to pay the 

purchase price by that date, that he had obtained possession on the basis of a false representation that he was able and willing to pay that amount and had not in fact done so. The defendant claimed that they had agreed that a proportion of the price was to be paid on signing the agreement for sale, and the remainder by instalments, and that on those terms he was lawfully in possession of the property under a contract of sale. The jurisdiction of the Court to grant temporary injunctions is governed by s. 68(c) and Order 37 Rules 1 & 2 of the Civil Procedure Code. 

Held: “It would appear to me that this case fits more aptly under the class of cases covered by the provisions of Rule 2. The plaintiff has in effect alleged a trespass and is asking for temporary injunction to restrain the continuance of that trespass pending the determination of the suit.” (2) “It is generally agreed that here are three conditions which must be satisfied before such an injunction can be issued:- 

(i) there must be serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed.

(ii) that the Court’s interference is necessary to protect (the plaintiff from the kind of injury which may be irreparable before his legal right is established, and, 

(iii) that on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it.