RULING OF AHAZI MWAMGONGWA VS MABAO YING print

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 9179 OF 2024 CASE REFERENCE NO. 202404251000009179 AHAZI MWANTIJA MWAMGOGWA ............................................ APPLICANT VERSUS MABAO YING .................................................................... 1ST RESPONDENT NIDA ROBERT MBETWA ....................................................2ND RESPONDENT RULING 4th October & 20th November 2024 NONGWA, J. The applicant has filed this application for temporary injunction pending the hearing of Land Case No. 9705 of 2024 filed in this court. It is made under section 68(c)(e) and Order XXXVII rule 1(a) of the Civil Procedure Code Cap 33 R: E 2019] and prays for the following orders; 1. This honorable court be pleased to issue an order of temporary injunction to restrain the first respondent, his agents, workman or any other person acting on his behalf from disposing or selling the suit land pending determination of the main application in parties 2. Any other relief this honorable court deem fit and just to grant 3. Costs of this application be borne by the respondents Grounds upon which the above orders are sough are found in the applicant’s affidavit. It is alleged that the applicant bought the suit 1 premises from the 3rd defendant in 2022 and went into use by renting to tenants. In 2024 the 1st defendant emerged and asserted ownership and is now trying to evict the applicant and tenants in the suit premises. Further that the suit premise is in danger of being wasted, disposed and alienated before the determination of the main suit. The 1st respondent filed counter affidavit to oppose the application. He alleges to be the lawful owner since 2006 and in 2022 is when he started to collect rent from tenants. The 2nd respondent had no objection to the application. When the matter was ripe for hearing, Mr. Imani Mbwiga, learned counsel appeared representing the applicant whereas Mr. Emily Mwamboneke also learned counsel was representing the 1st respondent. Disposal of the application was by filing written submissions. Mr. Mbwiga commenced his submission with a remark that the decision to grant temporary injunction order is within the discretion of the court. That principles governing temporary injunction was articulated in the case of Atilio vs Mbowe [1969] HCD 284 that is there must be serious triable issue as between the parties, that the applicant must stand to suffer irreparable loss which cannot be compensated in form of monetary and three, the applicant should stand to suffer greater hardship as opposed to the respondent. 2 Connecting the above condition to the application, Mr. Mbwiga submitted that there is pending Land Case No. 9705 of 2024 before this court in which the applicant will be entitled to claimed reliefs. In respect of the second condition, counsel referred to paragraph 5 of the affidavit in that the applicant has been issued with notice of eviction requiring him and the tenants to vacate the suit premise. That if injunction is not granted the tenants will sue the applicant for recovery of rent paid. Further that the 1st respondent is a foreigner who is about to sale the land and leave to his mother country. With regard to third criterial, Mr. Mbwiga submitted that the applicant is in possession of the suit premises from the time he bought from the 2nd respondent. Further that the 1st respondent has not attached any proof that he is a lawful owner as opposed to the applicant who has proof that there are tenants. Thus beseeched the court to grant the orders sought. Responding, Mr. Mwamboneke submitted that the applicant has not attached the plaint to the affidavit nor cited the case number of the pending case to show that there is triable issue. He fortified the argument with the case of American Cyanamid vs Ethicon [1975] 1 All ER 504. On submission that the applicant will suffer irreparable loss, counsel for the 1st respondent referred to a book Sohoni’s Law of Injunction, 3 second Edition 2003 in which the author articulates that irreparable injury must be material one which cannot be adequately compensated for in damages. He stated the first respondent has been stopped from collecting rent from his tenants since 2019, thus is the one who stand to suffer irreparable loss as is the only bread earning of the 1st respondent as foreigner. In last condition on balance of convenience, it has been submitted that the applicant has not disclosed any inconvenience to be suffered. But the 1st respondent is the one who has invested and is deprived from enjoying the disputed premises. Having considered the rival submission, the only issue for my determination is whether the application has merits. Counsels are in agreement that in granting temporary injunction order there are some conditions which must be met. These are the existence of a prima facie case, imminent irreparable loss, incapable of being atoned for by way of damages, and balance of convenience. These conditions must be cumulatively satisfied. In deciding whether there is a prima facie case, it should appear on the record that there is a bona fide contest between the parties and serious questions to be tried. At this stage the court cannot prejudge the case of either party. See Abdi Ally Salelhe Applicant vs Asac Care Unit Ltd & 2 Others, Civil Revision No. 3 of 2012 (unreported). 4 At hand there is no dispute that there is a pending case between the parties awaiting to resolve who is the right owner. Pendency of the main suit was not disputed by the 1st respondent in his counter affidavit. Thus, the submission by Mr. Mwamboneke that the applicant has not mentioned the case number and did not attach plaint is against 1st respondent pleading, counter affidavit. As there is consensus that there is a pendency suit between the parties, the first condition has been established. Coming to the second condition, whether the applicant stands to suffer irreparable loss. Here the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for the worse; that he will suffer damage as a consequence of the plaintiff's action or omission, provided that the threatened damage is serious, not trivial or minor, illusory, insignificant, or technical only not capable of being atoned for by way of damages. Reference is made to Philemon Joseph Chacha and Others v South African Airways (Prop) Ltd and Others (No. 1) [2002] TLR 246. In the affidavit the applicant has stated that after purchasing, rented the house to tenants. The 1st respondent disputed and is the stated is one who was collecting rent from 2006 until 2022 when the applicant trespassed. The applicant's affidavit has not provided sufficient evidence of substantial loss and the 1st respondent's affidavit in reply might be true. 5 Through paragraph 4 the applicant is not in physical use and occupation but the suit premises is rented to tenants. Further reading annexture DM3 parties are fighting for rent collection. In those circumstances I do not see any irreparable loss which the applicant is likely to suffer. The contest being rent collection to tenants, I am not persuaded that the plaintiff would suffer loss which could, in any sense, be termed irreparable loss if the injunction is not granted. There were some arguments that the 1st respondent is a foreigner and is about to dispose the suit premises and flee to China, unfortunately are statement from the bar not borne in the affidavit. It is now settled that as a matter of general principle, submissions by counsel, as opposed to an affidavit, are not evidence. See The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman of Bunju Village Government and Others, Civil Appeal No. 147 of 2006 (unreported). Even averments under paragraph 8 of the applicant’s affidavit that the suit premises is in danger of being wasted disposed and alienated are mere assumptions without any proof. In the premises the second condition fails. Determination of the second condition makes the third balance of convenience to collapse, what it means is that, before granting or refusing the injunction, the court may have to decide whether the plaintiff will suffer greater injury if the injunction is refused than the defendant will 6 suffer if it is granted. In this application as demonstrated when discussing second condition, there is no such inconvenience to be suffered by the applicant. In the premises, the application has failed to meet cumulatively condition for this court to excise it discretion and grant temporary injunction. I hereby dismiss the application with costs. V.M. NONGWA JUDGE 20/11/2024 Dated and Delivered at Mbeya this 20th November, 2024 in presence of Mr. Sambwee Shitambala for the applicant and Ms. Ipefania Msuya for the first respondent. V.M. NONGWA JUDGE 7