al hashoom investment limited vs victor oscar 2 others 2022 tzhclandd 201 22 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.217 OF 2020 (Originating from Land Case No. 21 of 2020) AL-HUSHOOM INVESTMENT LIMITED APPLICANT VERSUS VICTOR OSCAR RESPONDENT ANDREW MLILULU 2^° RESPONDENT SIMON NDIHAENI 3"*° RESPONDENT RULING Date ofLast Order: 07.03. 2022 Date ofRuling: 22.03.2022 T. N. MWENEGOHA J. This application was brought under Order XXXVII Rule 1(1)(a),(b), Rule 2 (1), and Section 68 (e) and 95 of the Civil Procedure Code, Cap 33 R. E. 2019 and supported by the affidavit of Said Edha Abdallah, the Principal Officer of the applicant. The applicant is seeking for injunction order to restrain the respondents, their agents or anyone acting on their behalf from conducting quarrying or any other activities on the landed property situated at Boko Estate, Kinondoni District, with Tittle Number 26470, pending the hearing and final determination of main suit. Land Case No. 21 of 2020. The dispute between the parties began in 2019, after the respondents entered into the suit land and started to carry on quarrying activities illegally. The land in question is said to be part of the land owned by the applicant after purchasing the same from Boko Estate (1979) Limited, in 2003. The efforts to stop the respondents from conducting their illegal activities so said yielded no fruits, hence this application which came after the institution of the above-mentioned land case. The application was heard by way of written submissions. Advocate Ramadhani Karume appeared for the applicant while the respondent was represented by Thomas Joseph Massawe. Submitting in support of the application Advocate Karume, relied on two cases of Atilio vs. Mbowe(1969) HCD 284, and that of T.A Kaare vs General Manager Mara Cooperative Union (1984) Ltd, {18987} TLR, 17 HC, where the three conditions for granting of temporary injunction were laid down as follows: - Firstly, is the existence of a prima facie case. The applicant's counsel was of the view that there is a likelihood of the applicant's land to be destroyed if the order of the court will not be issued. He insisted that, the applicant has established a cause of action which is trespass by the respondents into her land. That they have been conducting their quarrying activities into the said land illegally. He argued that this fact is sufficient to establish a case against the respondents. As for the existence of the irreparable loss on part of the applicant, Mr. Karume insisted that, the respondents' activities in the suit land involves extraction of pebbles and sand materials. He maintained that, the loss caused by the respondents' activities on the suit land is irreparable and cannot be compensated by monetary terms. The applicant stands to suffer both loss of income and business if the order of injunction is not given. Therefore, the test for allowing an application for injunction has been affirmatively met. On the balance of convenience as a third condition, the applicant's counsel insisted that the applicant will suffer great inconvenience if the application is refused than the respondents. That, the applicant being the lawful owner of the suit land, is entitled to the benefit arising out of it and not the respondents. As of now the respondents are the ones benefiting with the suit land illegally, thereby interfering with the applicant's enjoyment of the same. The applicant's counsel cited the case of Christopher P. Chale vs Commercial Bank of Africa, Commercial Case No.635 of 2017, High Court of Tanzania, Commercial Division, at Dar Es Salaam, where it was observed that: - " the object of temporary Injunction is to protect the applicant against injury by violation of his right for which he cannot adequately in damages recoverable in action if the uncertainty were resolved in his favour on the trial' In reply Mr. Masawe for the respondents contended that the conditions laid down in the Atilio versus Mbowe case,(supra) are not applicable in the case at hand. That the applicant has no prima facie case against the respondents. Also there is no loss likely to be suffered by her which is not reparable. The applicant has already constructed a block wall surrounding the suit land. There are no activities being conducted in the area as it is fully fenced. As for inconveniences, he insisted that, the construction of the wall is the one causing great hardships to the respondents. The same was done illegally and prevents the respondents from accessing their land, hence they cannot do any activity therein. In the end, the respondents' counsel prayed for a dismissal of the application with costs. Having considered the submissions by the counsel for the parties, in line with the affidavit and counter affidavit, for and against this application, the issue for determination is whether the application has merit or not. For the order of injunction to be granted, the rules in Atilio's case supra should be met fully. The duty of the applicant is to satisfy the court that he or she has met the conditions listed in the said case, all of them. In this application, it was argued by the applicant counsel that, the application should be allowed as the applicant has met all the requirements as far as the preconditions for granting the temporary injunction order are concerned. The counsel for the respondents on the other hand insisted that, the application should be dismissed since the applicant has constructed a block fence around the suit land, the rules in the Atilio case supra are not applicable. As far as I'm concerned, the respondents' submissions have admitted to the fact that the applicant needs the protection of this court in relation to the disputed land. The rationale of the injunction order has always been underpinned into the preservation of the status quo in situations in which further acts of the specified type, or the failure to perform such acts, would cause one of the parties' irreparable loss. It is without doubts that, the respondent's actions on the suit land are the ones leading into the filing of the pending suit that is Land Case No. 21 of 2020. Their actions have been viewed as interference of the applicant's rights over the land. This is what has constituted a prima facie case by the applicant as against the respondents. Secondly, looking at the nature of activities done by the respondents over the suit land, one will agree that if left to continue, the applicant will suffer loss that cannot be compensated by monetary damages. The fact that the applicant has constructed a wall surrounding the area do not preclude the court from doing its duty. In fact, I take that as an effort to mitigate the damage likely to occur over the land, leading to hardships in the future in case the applicant succeeds in his main cause. This being an equitable remedy, the applicant's actions on the suit land in my view are like approaching the doors of equity with clean hands. They are indeed justifiable. In the event, I find merits in this application and allow it accordingly with costs. The respondents, are restrained from entering and conducting any activity in the suit land until the hearing and final determination of the Land case No. 21 of 2020. Ordered accordingly. Dated at Dar es salaam this 22"^ day of March, 2022. N. M OHA o s DGE m \ i? ! / im if / Dm