alisaar industry co ltd vs omari salimu mandari administrator of estate of the late salim omari mandari 2021 tzhclandd 443 30 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION No. 153 OF 2021 {Arising from Land case no. 43 of2021) ALISAAR INDUSTRY CO. LTD................................. APPLICANT VERSUS OMARI SALIMU MANDARI (As Administrator of estate of the late SALIM OMARI MANDARI)........................ RESPONDENT RULING T. N. MWENEGOHA, J: The applicant has moved this Court under certificate of urgency through the provisions of Order XXXVII Rule 2 (1) and Section 95 of the Civil Procedure Code Cap 33 R.E 2019 seeking for the following orders: , a) That this Honorable Court be pleased to order that the respondent to open warehouse occupied by the applicant with the properties inside the said warehouse situated on Plot No. 7 Wazo Industry at Kinondoni District, Dar es salaam, illegally and without any court order, forcefully closed on 22nd January, 2021 by the said respondent with assistance of armed gangsters equipped with local weapons, pending 1 determination of the main suit in Land case No. 43 of 2021 between the same parties in this application. b) Costs. The Application is supported by an Affidavit of HAIDAR LOFT AWADA, the managing director of the applicant affirmed on 29th March, 2021, and it was countered by the counter affidavit of the respondent. With the leave of the court the matter proceeded by way of written submissions. The applicant was represented by Jerome Joseph Msemwa, Advocate while the respondent was represented by Fredrick V. Mpanju, Advocate. Mr. Msemwa's submissions gave the background of this application that the applicant entered into lease agreement with the late Salim Omari Mandali on 1st July 2016 for lease of his premises situated at Plot No. 7 Wazo Industry at Kinondoni District, Dar es salaam for period of three years until 1st July 2019, but continued to occupy the suit premises on oral agreement. He submitted that despite of the respondent's promise to repair the warehouse nothing was repaired resulting into the applicant's failure to do business of carpentry and interior designing at warehouse. He submitted that on 22nd January 2021 he was invaded by the respondent accompanied by bouncers heavily armed, disconnecting cameras and closing entire warehouse with all the applicant's belongings in it. This included plant and machineries, employment files, Tanzania revenue files, NSSF files, pay as you earn files, computers suppliers, account data and customer accounts which have up-to-date been locked in by the respondent in the warehouse. 2 The applicant's main allegation is that the respondent took law at his own hand to the detriment of the applicant. He added that as the result of invasion and closure of warehouse the applicant has failed to continue with its productions, service loan with Azania Bank, pay salaries to workers, and execute contractual obligations committed with various clients and failed to pay rent to the respondent. His submission is that the applicant stand to suffer great loss and damages if the order sought are not granted. He cited different authorities to strengthen his position including the book of SARKAR ON CODE OF CIVIL PROCEDURE, 6th Ed. Vol. 4 showing that all conditions to be observed while granting application as the one at hand. In reply, Mr. Mpanju submitted that the lease agreement commenced on 1st July 2016 to 1st July 2019 and that the respondent has never entered into oral agreement after expiry of 2016 contract. He also wondered if the respondent did not honor the contract on repairing the warehouse for all the three years how can the applicant agreed to enter into another contract and this time orally. He also submitted that the relation between applicant and the respondent did not began on 2016, before agreement of 2016 the applicant and the respondent had a 7 years lease agreement, which also applicant had a tendency of not paying rent timely. He submitted that before closure of the warehouse, the applicant was served with several demand notices to pay outstanding rent arrears and that it was after failure to heed to the demand notice that the respondent called the broker. After several application then the applicant was evicted from the 3 warehouse. He added that the closure of warehouse was lawful and was meant to protect the respondent from suffering irreparable loss due to the action of the applicant. He submitted that until now the warehouse is still closed due to application and suit filed by the applicant. The counsel for respondent proceeded further referred to the case of ATILIO V MBOWE (1969) HCD 284 and elaborated how the three conditions sets out in the celebrated case fits to his case. To that note, he prayed for this application be dismissed with costs. In rejoinder Mr. Msemwa took most of his time to reiterate his submission in chief. I have gone thoroughly through the submissions of both counsels; my findings will be guided by the principle established by the celebrated case of Atilio vs Mbowe (supra). The said principles are as hereunder, (i) There should be in existence a serious triable issue between the parties. (ii) A rooming danger of irreparable inquiry to the plaintiff. (iii) On balance conveniences, the existence of more suffering by the plaintiff if the injunction is refused than would be the case with the defendant if granted The applicant submitted that he paid rent for the warehouse in question and that the respondent has taken law in his own hands by evicting the applicant without letting him have his properties and fixture; hence still impounded in the warehouse to date. To him there is oral tenancy agreement between them. To the respondents position is that the applicant did not pay his rent 4 as per the contract and the lease agreement have already been expired, and that they depend on the suit warehouse for their needs. The question of whether there is contract or not and whether the eviction was proper or not signifies that there is serious triable issue between the parties. The first principle is answered in affirmative. On the second principle, whether there will be any rooming danger of irreparable injury to the applicant. The applicant requested for the Court interference since invasion and closure of warehouse by the applicant has stopped him continue with his productions, service loan with Azania Bank, pay salaries to workers, execute contractual obligations committed with various clients and fail to pay rent to the respondent and thus this is irreparable injury to the applicant. On the third principle on balance conveniences, the existence of more suffering by the applicant if the injunction is refused than would be the case with the respondent if granted. As stated earlier the fact that the warehouse has been closed with plant and machineries, employment files, Tanzania revenue files, NSSF files, pay as you earn files, computers suppliers account data and customer accounts, which are applicant's properties. As they are still locked in the warehouse to this day by the respondent, the applicant cannot in anyway generate income out of his investment. Similarly, on the part of the respondent, the fact that the warehouse is still closed means they also cannot generate any income out of warehouse, as they receive no rent. It is my view that the applicant will suffer more than the respondent if injunction is refused. 5 Having made those observations, this application is granted and the following orders are made: 1. The respondent, should open warehouse occupied by the applicant with the properties inside the said warehouse situated on Plot No. 7 Wazo Industry at Kinondoni District, Dar es salaam, pending determination of the main suit in Land Case No. 43 of 2021 between the same parties in this application. 2. I make further order that the applicant is hereby restricted from removing fixture and fitting found on the warehouse until final determination of the main suit. 3. Costs shall follow cause in the main suit. ENEGOHA JUDGE 30/08/2021 6