akongo massoud hassan vs jumbe moshi singiliano administrator of the estate of moshi seleman singiliano another 2022 tzhclandd 335 30 may 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO.724 OF 2021 (Originating from Land Case No.238 of2021) AKONGO MASOUD HASSAN APPLICANT VERSUS JUMBE MOSHI SINGILIMO (Administrator of the Estate of the late Moshi Seiemani Singiiimo) RESPONDENT SI3A SELEMANI SINGILIMO (Administrator of the Estate of the iate Moshi Seiemani Singiiimo) ......2'*'® RESPONDENT RULING Date ofLast Order: 12. 05. 2022 Date ofRuiing: 30. 05. 2022 T. N. MWENEGOHA,J. The applicant, here in above is seeking among others for an injunction order. He intends to restrain the respondents, their workmen, agents, officers or legal representatives, workers, employees, assignees and any other person acting under power, order, direction or authority from the respondents,from disposing off by sale, lease or mortgage to any person or changing tittle, ownership, transfer, occupation or business of the suit property, constituting a petrol station at Chanika Mwisho, on Plot No. 41 Block "G", Chanika Area, Ilala Municipality with Certificate of Tittle No.143241, pending hearing of the Land Case No.238 of 2021. The application is brought under Sections 68 (c),(e) and 95, also Order XXXVII Rule 1(a) and Rule 2(1) and 4 of the Civil Procedure Code, Cap 33 R. E. 2019 and supported by the Applicant's affidavit. The appiication was heard through written submissions. Advocate Mohamed Tibanyendera appeared for the applicant while the respondents were represented by Advocate Dismas E. Mbando. Submitting in support of the application, counsel for the applicant relied on the case of Atlllo vs. Mbowe(1969)HCD 284,in which introduced three conditions to be met before granting the temporary injunction order. The first condition is the existence of a serious question to be tried by the court of law. That, as per the plaint in Land case No. 238 of 2021. The said case invoives issues of frauduient sale of the deceased landed property by administrators without having powers to do so. Secondiy is that the appiicant will suffer irreparable loss if the application is not granted. The appiicant's counsel was of the view that, the court's interference is necessary because the applicants wiil suffer irreparable loss, as the respondents have been disposing off assets and distributing the assets without the consent of the applicant who is among the beneficiaries to the estate of the late Moshi Sleman Singiliano On the third principle that is based on the balance of convenience, it was argued by counsel for applicant that, the appiicant stand to suffer greater hardships if the reliefs sought in the chamber summons are not granted unlike the respondents who have nothing to iose if the orders sought are granted. In reply Mr. DIsmas Mbando also relied on the case Atilio vs. Mbowe, (supra). That, the condition has not been met. In her Affidavit the applicant has stated that, the respondents are no ionger administrators of the estate of the late Singiliamo. Hence, they cannot dispose any property under the eyes of iaw. The appiicant has never shown any fact proposing the attempt by the respondents as assign of seiiing the property in question. On the second ground, the respondents'arguments were that, there is no irreparable injury likely to be suffered by the applicant. That, the Probate and Administration Cause No. 198 of 2019 has aiready been closed and the administrators have discharged their duties by fiiing form No. V and VI. Hence there is no way that they can dispose the suit property. Lastiy, the respondent's counsel maintained that, since the respondents are no longer administrators of the estate, they cannot dispose anything. Hence no loss is likely to occur on part of the applicant. I have considered the submissions of both parties through their respective Advocates. I have also gone through the affidavit and counter affidavits as adopted by the parties through their submissions. The issue of determination is whether the appiication at hand has merit. I agree with the parties that in granting an order for injunction, the court ought to focus on the ruies iaid down in Atilio vs. Mbowe(Supra). The applicant has the duty to prove that she or he is within the ruies stated in the above-mentioned case. The instant appiication was brought under Order XXXVII Ruie 1(a) and Rule 2(1) and 4 of the Civil Procedure Code, Cap 33 R. E. 2019. However, looking at the arguments of the applicant's counsei and the affidavit in support of the application, I have found nothing material to show the instant application has merits. The affidavit in support of the application, particularly on paragraphs 11, 12 shows that, the applicant has filed the instant application based on suspicions or out of fear that the property in question may be alienated of sold by the respondents. There is no tangible evidence to show that, the respondents are about to dispose the suit property. The applicant as per the two paragraphs admits that she doesn't even know the buyer. Now, the purpose of injunction is to preserve the property when it is in danger of being wasted or alienated. This is according to Order XXXVII Rule 1(a) of the Civil Procedure Code, Cap 33 R. E. 2019 which states; - 1. Where in any suit it is proved by affidavit or otherwise; (a) "that any property in dispute in a suit is in danger of being wastedf damaged, or aiienated by any party to the suit ofor suffering ioss of vaiue by reason ofits continued use by any party to the suit, or wrongiy soid in execution ofa decree." As I have already explained here in above, there is nothing suggesting that the suit property is in danger of being wasted or damaged or alienated by the respondents. Therefore, there is nothing to protect in the first place. On the other hand, the other provisions cited by the applicant are not applicable in the circumstances at hand. However, to appreciate what they say as far as injunction is concerned, I will reproduce them as follows. Order XXXVII Rule 2(1) of the Civil Procedure Code, Cap. 33 R. E. 2019 provides that; - 2.-(l )" In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is ciaimed in the suit or not, the piaintiff may, atany time after the commencementofthe suitand either before or after judgment, appiy to the court for a temporary injunction to restrain the defendantform committing the breach ofcontract or injury compiained of, or any breach ofcontract or injury ofa iike kind arising out ofthe same contract or reiating to the same property or right" And Order XXXVII Rule 4 of the Civil Procedure Code, Cap 33 R. E. 2019 says:- 4. The court shaii in aii cases, before granting an injunction, direct notice of application for the same to be given to the opposite party, except where it appears that the giving ofsuch notice wouid cause undue deiay and that the objectofgranting the injunction, wouid thereby be defeated. Having so observed, I'm of the settled view that, the Instant application Is devoid of merits and It has to be dismissed accordingly. Costs to follow the event Ordered accordingly. T.^kMWENEGOHA JUDGE 30/05/2022 s 2^ ★ ★