Civil Reference No. 7 of 2004
The appellant, Khadija Lumbi, was an employee of the respondent, Tanzania Revenue Authority (TRA), and occupied a house under TRA's housing facility. After being disciplined and dismissed, she successfully challenged her termination at the Commission for Mediation and Arbitration (CMA), which ordered her reinstatement with no loss of entitlements. TRA opted instead to pay her twelve months' salary rather than reinstate her, and issued a cheque accordingly. While issues concerning satisfaction of the CMA award remained pending, TRA served her a notice to vacate the house she occupied. She then filed Miscellaneous Labour Application No. 384 of 2019 in the High Court (Labour Division), seeking a temporary injunction restraining TRA from evicting her pending final satisfaction of the CMA award. The High Court judge, after considering affidavits (without oral hearing of parties), dismissed the application for lack of merit, holding that the service tenancy had ended upon termination of employment and that pending litigation did not bar eviction. The judge further ordered the appellant to vacate the house by a specified date and hand over the keys, in the presence of TRA's counsel. The appellant appealed against these orders.
1. Whether the High Court judge erred in making the impugned orders (dismissing the injunction application and directing eviction) without hearing the parties. 2. Whether the impugned orders of the High Court were interlocutory or final in nature, and consequently whether they were appealable under section 5(2)(d) of the Appellate Jurisdiction Act, Cap 141 (AJA).
The appellant, through written submissions adopted at the hearing, argued that the High Court judge erred by imposing a decision on the parties without hearing them, describing the error as "res ipsa loquitur" — too obvious to require elaboration. On the question of appealability raised by the Court, she left the matter to the Court's discretion. The respondent, represented by Ms. Chunga, initially submitted that the parties had in fact been heard, but conceded, upon the Court's probing, that the impugned orders were not appealable because they were interlocutory in nature, thus not disposing finally of the rights of the parties.
The Court of Appeal held that the determinative question was whether the impugned High Court orders were interlocutory or final, applying the test from Bazon v. Attrinchan Urban District (1903) — whether the order finally disposes of the rights of the parties. The Court found that the appellant's substantive right was her claim for final satisfaction of the CMA award, and the High Court's refusal to grant a temporary injunction against eviction had no bearing on that claim. Therefore, even though the order was open to criticism, it did not finally determine the rights of the parties regarding the CMA award and was accordingly interlocutory. Under section 5(2)(d) of the AJA, no appeal lies against a preliminary or interlocutory order unless it finally determines the suit. Since the impugned orders did not meet this threshold, the appeal was incompetent. The Court struck out the appeal for being improperly before it, declining to decide the merits (including the procedural fairness ground), and made no order as to costs given the employment nature of the dispute.
The judgment reinforces the application of section 5(2)(d) of the Appellate Jurisdiction Act and the established test (derived from Bazon v. Attrinchan Urban District and reaffirmed in cases such as Vodacom Tanzania v. Planetel Communications, Murtaza Ally Mangungu v. Returning Officer for Kilwa, Junaco (T) Ltd v. Harel Mallac Tanzania, and Celestine Samora Manase v. Tanzania Social Action Fund) for distinguishing interlocutory from final orders in Tanzanian appellate practice. It clarifies that an order refusing interim relief (such as a temporary injunction against eviction) pending resolution of a separate substantive claim (here, satisfaction of a CMA award) is interlocutory and not appealable unless it finally disposes of the parties' rights. The case underscores the jurisdictional limits on appeals from interlocutory orders in labour disputes and illustrates the Court's willingness to raise and determine appealability as a threshold jurisdictional issue even where not initially argued by the parties.
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