20160321 TZHC Arusha

IN .THE HIGH COURT'.OFTHE-UNITED_REPUBLIC OF TANZANIA ·(lN THE DISTRICT-REGISTRY) AT ARUSHA- .MISC C:IVIL APPLICATION . ...·'. NO. ·.·· 29 OF 2016 ,- .. ·~ . :- .• (Originating· from Civil. Case No-.,,,,. 4/2016 High Court Arusha) ' . ·- . .. - . ' . . AIRTEL TANZANIA LIMITED ...................................... APPLICANT ... - VERSUS LILXAN ANDERSON MTUI @ LI_LIAN.MAMUYA .......... RESPONDENT Date of last order: 02/03/201'6' > Date of Ruling: 11/03/2016 I . . .... RULING. - MASSENGI,J ' . ,. ··-· This application is brought_ under_ section 2(1) of the Judicature and Application of Laws Cap 3~8, Order XXXVII Rule 2(1), section 68 (c) (e) and section 95 o( the (:ivll ·.-·Procedu,re Cpc;t~:;.,Applicant Airtel Tanzania _. . : ., - ·, .. .,, : ·--!/:·.:,.:::.,..:..-.-- . . ·Limited _is seeking for-this Court: . · .· ·. 1. To. issue and grant ex-p,frte temporary injunction order against respondent Lilian Anderson Mtui . ... . @ Lilian Mamuya, from locking up --- --- ~· ., .·· . : : the Applicant's teleco.rnmUnicatfon· transmission lower site No. TZ 0424 l_ocated at the Applicant's leased premises at Themi Hill, Moshono are-a, Arusha Mu:nicipal Arusha region, pending the hearing ' ' of the main case pending before this-~-~Coart. . . - . .. ·. . . ' ' - . ., 1 2. To issue an order to the effect that, the Applicant's agents and or employees be permitted to enter 'into Applicant's telecommunication transmission tower site No. TZ0424, located at the Applicant's loose _-premises at Themi Hill, Moshono area, Arusha Municipal, Arusha region and enable them to do the maintenance, repair and necessary inst~Uation ·pending the hearing of the.- main. suit which is pending .before this Court. Applicant is represented by learned advocate Mr. Mgoha while _respondent is represented by learned Advocate ~r. Materu. It was agreed that the application be argued by way of written submissions in the co_nsequences ' . ..· applicant file his submission in chief :· .·; supporting the application while respondent file his reply submission opposing the application. Applicant didn't file rejoinder submissions. - · - Before going into the gist of the application the respondent has · ·_- raised· an issue that the application is filed in a wrong register as the matt~(-at-_ hand.is Land Case while·· it has ·been filed as Civil Case and therefore the application is incomp~tent before the Court should struck it .- . . ~ out. Applicant did file any rejoinder so as to defend the position. It is quite clear that the issue before this Court is regard to tenancy . agreement entered between the parties whereby the applicant hired ' • ,; r • • • . r•·· respondent's_ land, Where h~ _erected _his transmission. Therefore they created a land .·Jard/tenant relationship. . Tenancy issues are dealt with .,• under the Land laws and hence the same has to' be filed in the High Court Land Division. That being the case then this application ought to be heard .. 2 as a L_and Application as it is not a Civil Appl!cation which ought to be filed in a proper r~gister and registered as_ a Land Application as it emanates ·from Landmatters andnot as aCivil Case. This omission goes to the root of jurisdiction as well. For the above reasons I agree with respondent's learned advocate that the application was filed in a wrong registry and hence this ~ourt as Civil Court:latks jurisdiction the proper registry was Land registry so as to" confer Court jurisdiction I therefore agree the application is incompetent before this and I hereby struck it out. SGD: F.H. MASSENGI -·JUDGE·- 11/03/2016 I hereby certify this to be a true copy of the original . .• _· -ARUSHA --~l} 'b{ J-L : I. :,, :~ • ~-,<• ... ' , ..., . --~·· ... 3