ALBIN PAUL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI MISC. LAND APPLICATION. 28023 OF 2024 ALBIN PAULO............................................................................ 1stAPPLICANT SILO BAHA................................................................................ 2ndAPPLICANT GYAM GEJE............................................................................... 3rdAPPLICANT SIKUKU GEJE............................................................................ 4thAPPLICANT TSERE NADE.............................................................................. 5thAPPLICANT JOSEPH NADE..................................................... 6th APPLICANT VERSUS MLIMANI VILLAGE COUNCIL........................ 1st RESPONDENT HON. ATTORNEY GENERAL............................ 2nd RESPONDENT 22nd Nov & 3rd Dec. 2024 MWIHAMBI, J. RULING The applicants Albin Paulo, Silo Baha, Gyam Geje, Sikuku Geje, Tsere Nade and Joseph Nade have filed this application under certificate of urgency against Mlimani Village Council and the Attorney General (hereinafter referred to as the first and second respondents respectively) praying for a temporary injunction and order that status quo in respect of the applicant's land, whereby the first respondent claims ownership, be maintained pending the filing of main suit after expiry of 90 days Page 1 of 10 statutory notice of the intention to sue the Government. They also prayed for any relief as the court deem necessary to grant. The application is made by way of chamber summons supported by a joint affidavit of all six applicants and attached with a copy of ninety days (90) notice. Briefly, the background to this application is that the applicants have been using the suit area located at Mlimani Village, Nagwa Ward within Hanang' District in Manyara Region for agricultural and residential activities since 1990s. In 2017 the first respondent allegedly "invaded" their area and started using it as a village land by leasing the same to other people for agricultural activities. In September, 2024 under the service of Legal and Human Rights Centre (Arusha), the applicants submitted a notice to the Mlimani Village Council, demanding them to vacate from their area within 90 days, the notice was delivered on 18th September, 2024. The applicants allege that even after the said notice the Village Council continues to occupy the land hence this application. When the matter was called for hearing the 1st 2nd 3rd applicants appeared in person, unrepresented, while the 4th 5th and 6th applicants did not make an appearance. The respondents were both represented by Mr. Nickson Kenges, State Attorney. It was the applicants' case that Page 2 of 10 they are all residents of Mlimani Village whereby their parents started to live there from 1974 during "Operation Vijiji". That before 2014 there was a land boundaries dispute between themselves and Nagwa Secondary School whereby the School had encroached the applicants' land. The dispute was however settled in 2014 with the help of a district land officer, and the said School released the six acres that was in dispute. The applicants further argued that in 2017 first respondent invaded their land with an argument that the six acres belongs to the village and started to leasing it. The applicants alleged that in the process of follow up some elders, including the 2nd 3rd 4th 5th and 6th applicants, were arrested, detained and coerced into signing some documents to give up the disputed land as a condition for release, and they did so. The applicants further argued that after that incident they decided to stay quiet and use leased farms for their agricultural activities (mashamba ya kukodl), but village leaders have now refused leasing them but lease other people instead. The learned State Attorney in reply submitted that this is an application of Mareva InJudion and for it to be granted there are two conditions which the applicant must satisfy the court; first, the applicants must Page 3 of 10 show that they have a serious case against respondents and second, applicants must satisfy the court that by looking at circumstances of the case, issuing an injunction order will be just and justifiable, citing the case of Winifrida B. Mandogo and 87 Others v. The Trustees of Tanzania National Parks (Mahale Mountains National Park) and Another, Miscellaneous Land Application No. 37 of 2023, High Court Kigoma (unreported) at page 15. The learned State Attorney argued that in relation to the first condition, the applicants have not explained how they acquired the land that they claim to be theirs and its boundaries so it will be difficult for the Court to issue an executable order. That they have not described the exact location of the land such as in which hamlet and village the land is. The learned State Attorney argued that the first respondent is a bona fide owner of the land since 2014 and the boundaries are shown in paragraph five of the counter affidavit. That the land is leased by first respondent to villagers as a source of income, copies of rental advertisement and renting agreements are attached in the counter affidavit marked "OSG 1". Mr. Tenges further argued that even the applicants have admitted that the dispute land is owned by the first respondent and this is evident in Minutes of Village Assembly held on 8th Page 4 of 10 February, 2021 which shows that the applicants agreed to pay a compensation of TZS. 100,000/- each for encroaching the dispute land and for the disturbance they caused, the disturbance which led to filing of a criminal trespass case as it is shown in attachment "OSG 2". He further submitted that while the applicants argue that the land which was in dispute between the village and Nagwa Secondary School belongs to them, in the Village Assembly it was agreed that the said land belongs to the first respondent. He further argued that the applicants have alleged being arrested, detained and coerced to sign documents giving up the dispute area but no proof is submitted to substantiate the allegations. In relation to the second condition, learned State Attorney argued that currently the land is leased to one Sesilia Bayo from 12th August, 2024, payment receipt for TZS. 1,260,000/- is attached to the counter affidavit and marked "OSG3". That this lessee has already cultivated the land and planted crops, therefore an injunction order will cause an irreparable loss to her as the planted crops will be harmed, considering that the applicants have not proved that they own the disputed land. In their rejoinder submission, the applicants insisted that they own the dispute land as their parents have been living in Nagwa from 1974, and Page 5 of 10 that Mlimani village was established in 2014 out of Nagwa village and by then the village had no "unoccupied land" hence asking where is this six- acres land came from? On the argument that they have not stated the boundaries, the applicants clarified that the dispute land in the west borders Nagwa Secondary School, in east there is a korongo of Miasko and Mlimani village, on the north the border is applicants' residents and in south the area borders Willliam Buur. In relation to exact location the applicants submitted that the dispute area is in Nagwa Juu hamlet. I have carefully considered the content of the application and the prayers thereto, the affidavit filed in support of the application and the counter affidavit filed by respondents and their respective attachments. I believe it is important at this juncture to differentiate the normal injunctions and the Mareva injunction that has been cited by the learned State Attorney. The normal injunctions are sought and granted where there is a pending suit and the leading case in this is the case of Attilio v. Mbowe (1969) HCD 284 in which it was stated that it is generally agreed that there are three conditions which must be satisfied before such an injunction can be issued, namely: (!) That, there must be a serious question to be tried on the facts alleged and a probability that the plaintiff will be entitled to the reliefprayed. Page 6 of 10 (ii) That, the court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established. (Hi) That, on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting ofit. These principles have been applied in a number of cases such as Winifrida B. Mandogo (supra) and Msimbazi Creek Housing Estate Ltd v. Keds Tanzania Company Ltd and Another, Miscellaneous Land Application No. 55 of 2020. A Mareva injunction, on the other hand, as explained in Winifrida B. Mandogo (supra), is sought and granted where there is no pending suit. The position was explained by this Court in the case of Daud Mkwaya Mwita v- Butiama District Commissioner and Another, Miscellaneous Land Application No. 69 of 2020 (Hig Court, Musoma) that: "... a Mareva injunction cannot be applied or be granted pending a suit. It is an application pending obtaining a legal standing to institute a suit. A Mareva injunction may be applied where an applicant cannot institute a law suit because of an existing legal impediment for instance where law requires that a statutory notice be issued before a potential plaintiff can institute a suit". In our jurisdiction, explains Masabo, J in Leopard Net Logistics Company Ltd v. Tanzania Commercial Bank Ltd and Others, Page 7 of 10 (Miscellaneous Civil Application 585 of 2021) [2021] TZHC 9043 (28 December 2021), it is a settled principle of law that, this court has jurisdiction to grant such injunction under section 2 (3) of the Judicature and Application of Laws Act which braces the application of common law and equity in our jurisdiction. It has also been mentioned in this case that the applicants are praying for an injunction order pending the filing of main suit as they have issued a 90 days statutory notice of the intention to sue the Government. The application should therefore meet the conditions set out in the case of Leopard Net Logistics Company Ltd (supra) that: "...one, the applicant must demonstrate a strong prima fade case or a good and arguable case and two, having regard to all circumstances of the case, it appears that granting the Injunction isjust andjustifiable" My duty now is to assess whether the applicants have demonstrated a strong prima facie case or a good and arguable case for this Court to determine whether granting the injunction sought is just and justifiable. Apart from the fact that the applicants are residents of relevant village they have not shown how they acquired the dispute land; how that specific land belongs to them and not other villagers whose parents have also been living there since 1974, this sheds uncertainty as to the legal ownership of the dispute land. The applicants have submitted that Page 8 of 10 the first respondent has been occupying the dispute land since 2017 and leasing it to third parties, but they have not shown which legal measures they have attempted to pursue for all these years. The applicants argue that in attempts to recover the dispute land some of the applicants were arrested, detained and coerced into signing documents to give up the dispute land but there is no proof to these allegations. In addition, the applicants have failed to dispute the learned State Attorney's submission that the Village Council convened a meeting, attended by more than 114 villagers, and the meeting resolved to penalize each applicant TZS 100,000/- for trespass in the dispute land. The applicants have also failed to show how granting of the applied application will be just and justifiable to them and not to Sesilia Bayo who have paid TZS 1,260,000/- as rent for lease of the dispute land for the 2024/25 season and has already cultivated the said land. In view of the foregoing, the applicants have failed to demonstrate a strong prima facie case or a good and arguable case, and having regard to all circumstances of this case I find that granting the injunction sought is not just and justifiable. I therefore find this application devoid of merits and I hereby dismiss it. Each part will bear their own costs. Page 9 of 10 DATED at BABATI this 3rd day of December, 2024. N. J. MWIHAMBI JUDGE COURT: Ruling delivered today, 3rd day of December, 2024, in the presence of the 1st Applicant Albin Paulo and and Mr. Nixon Tenges, State Attorney for Respondents. B/C Miss Fatina R. Haymale (RMA) present. Right of appeal explained. N. J. MWIHAMBI JUDGE 03.12.2024 Page 10 of 10