By Evarist Baimu Nyaga Mawalla - Home

compel the applicant General Manager to hear the respondent in accordancewith rules of natural justice and for an injunction to restrain applicant fromharassing him.On 20 April 1987 the matter came before the Hon. Jaji kiongozi who issued anex-parte temporary injunction restraining the Director of Migration services fromdeporting the respondent pending the hearing of the case and also restringingthe applicant from evicting the respondent from his quarter during the tendencyof the case. It was Mr. Uzanda’s submission that the temporary injunction wasincompetent because it was in breach of order 37 Rule 3 of the Civil ProcedureCode which provides as follow;The court shall in all cases except where it appears that the object of grantingthe injunction would be defeated by the delay before granting an injunction directnotice of the application for the dame to be given to the opposite party.The above rule is I think mandatory. If the opposite party can be served withoutdelay an ex-parte injunction should not be issued in theis connection, Mr.Uzanda referred the court to two decisions of the court of Appeal InNoormohamed Janmohamed v. Kassamali Birji Madhani (1953) 20 EACA 8 atpage 11 the court saidThe requirement to give notice is clearly mandatory and it cannot be disputedthat the onus of satisfying the court that there s a good cause for dispensing withit will lie upon the applicantThe decision in the Noormohamd case was followed in the latter case of Davan.V. Bhadreassa and Another (1972) EA 23 in which the parties were living in thesame premises, and therefore there would have been no difficulty in serving theopposite party with the chamber summons. The ex-parte interim injunction wasset said. In the present case thee is no dispute that the respondent is living nearthe applicant house and had this been raised at the hearing of the application fortemporary injunction the court would have required notice to be served on theopposite party.Furthermore there was no application made no reasons were given and also noorder was made dispensing with the requirement of giving notice to the oppositeparty Mr. Massate concede that in the affidavit filed in support of the applicationfor temporary injunction thee was no mention made for dispensing with notice.He also concede that Order 37 Rule 3 of the Civil procedure code is mandatoryHowever he said that the matter was urgent and the service to the opposite partywould have caused delay With respect I do not agree. The respondent knew thatthe General Manager was living in the same neighborhood of the respondenthouse I do not see what delay would have been caused by sending notice to theapplicant Mr. Massati also said that the application to dispense with notice can320