Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 27877 OF 2024 BETWEEN AHOBOKILE LYSON MWAISAKILA (As Administrator of The Estate of the late Mwakajamba Lyson Mwaisakila)........... APPLICANT VERSUS THE SOKOINE UNIVERSITY OF AGRICULTURE............... 1st RESPONDENT THE COMMISSIONER FOR LANDS....................................2nd RESPONDENT THE REGISTRAR OF TITLES............................................. 3rd RESPONDENT THE ATTORNEY GENERAL................................................ 4th RESPONDENT RULING 04/12/2024 & 13/12/2024 A. MSAFIRI, J, This is a ruling on the Application which is famously referred as mareva injunction whereby the applicant is seeking for the court order that the respondents be restrained temporarily under the order of maintenance of status quo on the suit property pending the expiring of the statutory 90 days' Notice which was mandatorily issued to the defendants. The Applicant have filed this Application under the certificate of urgency and is supported by an affidavit of the applicant which was deponed by. i the applicant himself. The respondents filed their counter affidavit jointly deponed by Mr George Zambetakis, Legal Officer conversant with the matter and authorized to swear the counter affidavit on behalf of all respondents. The Application was heard by way of written submissions. The applicant's submission was drawn and filed by Mr. Richard Rweyongeza, learned Advocate while the reply submission by the respondents was drawn and filed by Mr. Mathew Fuko, State Attorney. There are mandatory conditions which have to be complied with by the applicant seeking for temporary injunction in order for the court to exercise its discretion and grant the sought order. The said conditions were set in the case of Attilio vs Mbowe (1969) HCD 284. It is trite law as agreed by the parties to the suit through their advocates that the Court's power to grant injunction is predicated upon the applicant meeting, cumulatively, all the three conditions set out in the celebrated case of Atilio vs Mbowe (supra). The three conditions are briefly that first, there must be a prima facie case/serious issue to be tried, second, that the court interference is necessary to prevent irreparable injury befalling the applicant and third, the applicant have to establish that he will suffer more mischief than/Vl 2 the respondent if the sought injunction will not be granted. My major task now is to determine whether this application is meritorious i.e. whether the applicant has met cumulatively all three mandatory conditions as pointed out herein above. Submitting in support of the application, the counsel for the applicant, Mr Rweyongeza stated that in order for the application like this to be granted, what is required at this stage is to show two conditions; First, is to show the prima facie case or good arguable case and second is to show that, it is just and equitable to grant the interim order to protect the hind of danger on the basis of inherent powers of the court. He referred the case of Sunset Tarangire Ltd vs. Registered Trustees of Makame Wildlife Management Area, Misc. Civil Application No. 1453 of 2024. Mr Rweyongeza submitted further that the dispute in this instant matter is about land which constitute Plot No. 131 Block'10', Bunju Kinondoni,Dar es Salaam (herein the disputed landj.That, the applicant claims that the disputed land belongs to the estate of the late Mwakajamba Lyson Mwaisakila by which the applicant is the administrator. That the late J Mwaisakila obtained the land since 1992 to date. m IL 3 He said that, on the other hand, the 1st respondent contends that the disputed land belongs to her after she had secured Title from the 2nd and 3rd respondents. He pointed that, in the affidavit and counter affidavit, it is clear that the dispute between the applicant and the 1st respondent is on the ownership of the disputed land but the court is yet to determine the dispute. That this is a land dispute which requires the intervention of the court. On the other hand, Mr Fuko contends that the present application has not meet all three conditions set out in the famous case of Attilio vs. Mbowe (supra). He said that on the first condition of existence of a prima facie case or serious questions of facts or issues to be determined, the applicant contends to be a lawful owner of the disputed hand. That this creates doubt as the ownership of the 1st respondent of the disputed land was granted since the year 2006. That this brings some sort of doubt as the applicant claims to be the owner of the disputed land in 2024. Mr Fuko argued that there is no prima facie established for the reason that the applicant is not the lawful owner of the disputed land as there is no proof to substantiate ownership over the suit plot. I will first determine the first condition. It is my view that there is a serious contention between the applicant and the 1st respondent over thec 4 ownership of the disputed property. In his affidavit, the applicant has demonstrated that the disputed land forms part of the farm owned by the late Mwakajamba and that sometimes in 2002 when the Government of Tanzania declared some part of the farm a development land, the disputed area was neither acquired nor was the applicant paid any compensation. That he was left in the possession, use and ownership of the said land. He maintained that the disputed property/land is lawfully owned by the applicant and the 1st respondent is a trespasser. On the other hand, in a counter affidavit, the respondents vehemently denied the applicant's claim and stated that the 1st respondent is the lawful owner of the disputed property, he possessed a Certificate of Title and has not invaded the same as claimed by the applicant. It is my view that at this stage, the court cannot look deeply into the evidence adduced as a party has only to establish that there is a contention between the parties. See the case of Mariam Christopher vs Equity Bank Tanzania Ltd &Another, Misc. Application No. 1070 of 2017,HC where it was held that; "Regarding to the extent ofproving whether there is a serious question for determination, it is not , conclusive evidence which is required but rather 5 the facts as disclosed by the plaint/affidavit and so the standard proof required would be somehow below the expected standard in full trials" Furthermore, in the above cited case, in the case of Abdi Ally Salehe Vs. Asac Care Unit Ltd & 2 others, Civil Revision No. 3 of 2012, CAT at DSM (Unreported), the Court of Appeal stated that at this stage the court has to see only a prima facie case and that it cannot prejudge the case of either party and cannot record a finding on the main controversy involved in the suit. Following that and through the facts, I have been satisfied that the applicant has managed to establish the first condition which is existence of a prima facie case. On the second condition, the applicant has to establish that he has suffered and or will suffer a serious and irreparable injuries which was/ is incapable of being monetary satisfied. It is a general law that an injury capable of being compensated by money is not an irreparable one. In this, at paragraph 17 (i)- (v) of the affidavit of the applicant, the applicant has listed and explained how he will suffer if the instant application is not granted. Having read all the submissions by the applicant as reflected in the affidavit, it is my view that all facts/ground 6 listed at paragraph 17 (i) ~(v) of the applicant's affidavit if will happen /proved to happen, might prejudice the applicant's rights within this short time before the expiry of the statutory 90 days' notice. At paragraph 17 of the affidavit, the applicant states that he is in actual possession of the land and he has been in occupation of the disputed land since 1992. That the applicant is now forced by the respondents to relocate and illegally leave the land for the use of the 1st respondent. That the respondents have no intention to return the disputed land in case the 1st respondent parts with the complete and actual ownership of the land. The applicant stated that there is likely to be great hardship suffered by the applicant as the process to regain possession is likely to be drained or complicated hence resulting to substantial loss. According to the contents of paragraph 17 (i)-(v), it shows that the 1st respondent has already started to construct a fence wall on the disputed land and that, it will be difficult for the respondents to return the disputed land. It is my view that since this is an application for mareva injunction and considering the circumstances of the dispute whereby the applicant is likely to lose hold on the claimed land while waiting for the expiry ofM- 7 notice to sue, it is only right that the court exercise its powers and grant the sought order so that to arrest the impending situation. In upshot, I find that the applicant has managed to meet the conditions required for the instant application to be granted. The application is granted. The interim injunction is hereby entered on the disputed land pending the expiry of the 90 days statutory notice issued to the respondents. No order as to the costs. 13/12/2024 8