AGNESS MAREVA 2 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.30915 OF 2024 AGNES NICHOLAS LOBULU………………..………..1ST APPLICANT THOMAS CHRISTOPHER MANGA…………………..2ND APPLICANT BASHIR SALEH LUSENDELA…………………………3RD APPLICANT SALIMU ZUBERI SALIMU…………………………….4TH APPLICANT DAVID MGANGA CHILLO…………………………….5TH APPLICANT

VERSUS

KIGAMBONI INTERNATIONAL BUSINESS CENTRE CO.LTD….……………….…….1ST RESPONDENT SATURN CORPORATION LIMITED.……...……….2ND RESPONDENT KIGAMBONI MUNICIPAL COUNCIL.……………..3RD RESPONDENT COMMISSIONER FOR LANDS………………………4TH RESPONDENT THE ATTORNEY GENERAL…………………………..5TH RESPONDENT 1

RULING 16th & 24th January, 2025 L.HEMED,J This application has been presented pursuant to section 2(1)&(3) of the Judicature and Application of Laws Act [Cap.358 R.E 2019] and section 95 of the Civil Procedure Code[Cap.33 R.E 2019]. It is an application for Mareva injunction where the applicants are seeking for restraint orders against the 1st Respondent from disposing of, transferring, leasing, tempering or doing anything in any manner on plots No.16, 17, 18, 19 and 20 Block “B” Kigogo Area, Kisarawe II within Kigamboni Municipality, Dar es Salaam, registered under certificate of titles No. DSMT1044624, DSMT1043301, DSMT1043042, DSMT1060784 and DSMT1045441, pending the institution of the suit after expiry of the 90 days’ notice to sue the Government. Briefly, the applicants allege to have purchased the suit landed properties from the 1st Respondent between the year 2020 and 2023. Following the said sale, the Commissioner for Lands, the 4th Respondent issued the respective certificates of titles to the applicants in respect of the plots in dispute. 2 According to the applicants, on 30th October 2024 they were served with copies of a letter from the 4th Respondent notifying them about the rectification and removal of the certificates of titles in respect of the suit landed properties from the land register on allegation of fraud. One of the elements of fraud being, absence of

board resolution authorizing the 1st Respondent to dispose of the suit landed properties by sale. The applicants appear to be aggrieved by the act of the 4th Respondent to rectify and remove from the land register the certificates of titles, hence the instantaneous application made at the instance of Mrindoko Law Chamber and supported by the joint affidavit of Agnes Nicholas Lobulu, Thomas Christopher Manga, Bashir Saleh Lusendela, Salimu Zuberi Salimu and David Mganga Chillo. The respondents resisted the application hence hearing by way of written submissions. I have read the rival submissions as presented by the learned counsel. Mr. Rajab Mrindoko, learned advocate acted for the applicants. The 1st and 2nd respondents were represented by Mr. Daimu Halfani and Mr. Oscar Milanzi, learned advocates, respectively, while the 3rd, 4th and 5th respondents enjoyed the legal service of Mr. Stanley Mahenge, learned state attorney. In the course of reviewing submissions, I noted that the reply 3 submission of the 1st Respondent was filed out of the time fixed by the court. The filing was done without the leave of this court. This being the case, I have opted not to consider the 1st Respondent’s submissions filed beyond the time limitation. In determining the application at hand, I am not going to reproduce the submissions as presented. Where necessary, I will be referring some points in

the course of assessing the merit of the application. As aforesaid, this is an application where the applicants seek for injunctive orders pending expiry of 90 days’ notice to sue the Government of the United Republic of Tanzania. In actual fact there is no pending suit before this court to warrant the applicants to apply for normal injunctive orders. The applicants have opted to use the window of Mareva injunction developed by courts in England through which a party who is encountered by legal impediments to institute a suit may apply for injunctive orders pending compliance of legal requirements. The window was developed in Mareva Compania Naviera SA v. International Bulkcarriers SA [1980]1All ER 213. 4 The conditions which the court is bound to abide in granting application for mareva injunction are the same as those in the ordinary injunctive orders except that in applications for Mareva injunction, the applicant has to establish that he/she had to go through certain legal procedures before instituting a suit before the court. The other conditions are the same as were stated by his Lordship, Hon. Georges C.J in Atilio vs. Mbowe (1969) HCD n.284 thus: - “For the courts to issue for an order of temporary injunction, first, there must be a serious question to be tried by the Court, and a probability that the Plaintiff will be entitled to the relief prayed for(in the main

suit), second, that the temporary injunction sought is necessary in order to prevent some irreparable injury befalling the plaintiff while the main case is still pending, and third, that, on the balance, greater hardship and mischief is likely to be suffered by the plaintiff if temporary injunction is withheld than may be suffered by the Defendant if the order is granted.” [Emphasis added] In the instant case, it is unequivocally clear that among the parties to be involved in the intended main suit are Kigamboni Municipal Council, the Commissioner for Lands and the Attorney General who are the 5 Government officials or Government authorities. According to section 6 of the Government Proceedings Act, [Cap.5 RE 2019] the 90 days’ notice to sue has to be served to them prior to instituting a suit against them. Therefore, the procedural requirements stated in the Government Proceedings Act (supra) necessitates the applicants to come to court by the window of Mareva injunction as it would be not possible to institute the main suit prior to expiry of the notice to sue. I have further noted from the joint affidavit, particularly in paragraph 6, the applicants have asserted to have issued the ninety (90) days’ notice to the 3rd, 4th and 5th respondents of their intention to institute a suit to challenge the 4th Respondent’s decision to rectify the land register by deleting or

cancelling their titles over the suit landed properties. From those facts averred, it is evident that there is an intended suit whose issue will be on the legality of rectification, cancellation and deletion of the certificate of titles of the applicants on the suit landed properties. In Mareva application, existence of triable issue can be substantiated by providing facts showing that notice of intention to sue has been served to the respective Government institution and the Attorney General. The Applicant must also state facts in a nutshell constituting cause of action of 6 the intended suit. In the matter at hand the facts showing that the Government has already been served with notice of intention to sue and facts stating the cause of action of the intended suit, have been stated in paragraph 6 of the joint affidavit of the applicants. This shows that the 1st condition as propounded in Atilio vs. Mbowe has been met squarely. It is also an elementary law that the applicant must establish that he is going to suffer irreparable loss in case the application is refused. The word irreparable loss must be the loss that cannot be atoned by damages. In paragraph 7 of the supporting affidavit, it has been stated thus: - “7. That we have further reliable information upon rectification of our client’s titles by the 4th Respondent, that 1st Respondent intends to re- sale the said plots

to 2nd Respondent or third parties unknown to the Applicants.” [Emphasis added] The above paragraph seems to allege the presence of reliable information of the possibility of the 1st Respondent to re-sale the suit landed properties to the 2nd Respondent or third parties. The above paragraph however, has the following shortcomings: - 7 1. The deponents who are the applicants appear to refer to the titles in land of ‘their clients’ subject for sale. In other words, according to paragraph 7 of the supporting affidavit, the plots alleged to be subject for sale by the 1st Respondent are the plots which belonged to the clients of the applicants; 2. The applicants have not said what loss they may suffer in case the properties of ‘their clients’ will be sold; and 3. Paragraph 7 is based on here say information as is based on undisclosed source and has not been substantiated by the said source. I have also gone through all ten (10) paragraphs of the supporting affidavit but could not find the applicants stating the irreparable loss they may probably suffer in case the court refuses to grant the application. In the course of perusing the affidavit I found paragraph 9 stating thus: - “9. That if not restrained by this court, the 1st Respondent will proceed with the sale and or disposition of the said plots as a result we shall suffered(sic) irreparable losses and damages 8 and the

intended suit will be rendered nugatory.” [Emphasis added] In the above quoted paragraph, the applicants aver the possibility of them to suffer irreparable loss. However, the averment is too general as it does not specifically tell the kind of irreparable loss the applicants may suffer in event the court refuses the prayer for injunctive orders. It should be noted that, the irreparable loss which the applicant is likely to suffer must be specifically stated. Putting a general statement without going to the details of the alleged irreparable loss, as it is the case in the matter at hand, is as good as having stated no irreparable loss the applicant(s) is/are likely to suffer. Failure to establish the prospective irreparable loss equals to none compliance of one of the key conditions in applications for injunctive orders, whether Mareva or ordinary applications for injunctive orders. The applicants having failed to establish the condition of the possibility of them suffering irreparable loss, I cannot proceed to determine the remaining condition. I am holding so based on the current position de jure that, conditions for injunctive orders must be met cumulatively. This position has been taken by the court in plethora of akin cases including in Ramla Aziz Msuya vs Equity Bank (Tanzania) Limited & 2others, Misc. Land 9 Application No. 28 of 2021, E. As Industries Ltd vs Trust food

Limited, [1972] EA 420, Giella vs Cassman Brown [1973] EA358, for purposes of mentioning just a few. My firm opinion is that, canvasing the remaining condition will have only an academic effect which is not the core function of this court of law. In the light of the aforesaid authorities, the instantaneous application finds itself devoid of merit. In that regard, I have no other options than dismissing it. I do hereby proceed to dismiss the entire application with no orders as to costs. Order accordingly. DATED at DAR ES SALAAM this 24th January,2025. L.HEMED

JUDGE 10