alodia ishengoma vs marko makolo jilala 2020 tzhclandd 159 20 may 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPLICATION NO. 29 OF 2019 ALODIAISHENGOMA............................................ APPLICANT VERSUS \ MARKO MAKOLO JI LALA................. \ ........ RESPONDENT s. s. R U LIN G Date o f last Order: 04/05/2020 • . . . . Date o f Ruling: 20/05/2020’. MANGO, J. / / The applicant in this'application, through a Chamber summons made under section 68(c) ,apd Order.XXXVII .Rule 2(2) 'and Section 95 of the Civil Procedure Code^Cap 33 R. E. 2019] prays for the following orders 1. That one Marko Makolo Jilala, the respondent be detained as a Civil Prisoner for a term of six months for disobeying a lawful order of the Court dated 13th September 2017 as per Hon. L. E MGONYA J; 2. That the Honourable Court be pleased to order the respondent to submit into Court bank account all income/rent obtained from leasing the suit property mentioned in the court order dated 13thSeptember 2017; 3. Costs be provided for; and 4,. Any other order(s) as the Honourable Court may deem just and fit to grant i The application is supported by affidavits of ALODIA ISHENGOMA, MOHAMED MAKALANI and IDD MAGANGA. In response to this application, the respondent filed a counter affidavit and a notice of Preliminary objection that the application is bad in law for being omnibus. On 11th February 2020 when the matter was called for necessary orders, the court ordered the Application and the Preliminary Objection to be disposed simultaneously by way of written submissions. Both parties to this application had legal representation, while the applicant had the services of Mr. Ludovick Nickson, learned advocate/ the- respondent enjoyed the services of Ms. Cecilia Assehga>.Iearned advocate. I am grateful to the two \ \ counsels for complying,with theschedule of written submissions \ _ \ As it is a trite law that wheneve>there is a Preliminary Objection it must be disposed first before the main, application, Twill start with determining the Preliminary objection. \ \ \ Submitting on the Preliminary Objection, Ms. Cecilia Asenga argued that the applicant's" application is bad in law for containing two or more proceedings in one,application. Although she cited no provision of the law, she argued that the law provides that an omnibus application render the r application incompetent and is liable to be struck out. She also submitted to the effect that omnibus application should be compatible. According to her, the application at hand is not compatible and it is irreconcilable. She understands that the essence of having more than one application in one chamber summons is to avoid multiplicity of proceedings but she insisted, for applications to be combined they need to be compatible to each other, meaning, the grant of one application should pave way to another. She is of the view that the application to have the respondent detained as a civil prisoner does not pave way to the respondent to deposit the income obtained from leasing the suit property into the Judiciary bank account. Citing as authority the observation made by advocate Kambunga on combining more than one applications in one" application as it appears in decision of the Court of Appeal of Tanzania in ALLI CHAMANI VERSUS KARAGWE DISTRICT COUNCIL Civil .Application No. 411/4/2017 she argued that this application is incompetent. -s/ In his reply submission, Mr. Ludovick argued that,.thisjpreliminary objection lacks merits as it has been clearly stated by counsel for the respondent in their submission in chiefthat omnibus applications are not prohibited in law '' \ - as they serve the, court from having multiplicity of proceedings. He is in \ \ agreement with the ’ respondent's submission that such applications are allowed ■ where the grant of one. application paves way to another application. ■\ \J Mr. Ludovick submitted that the application at hand is good in law because granting one prayer clearly paves way to another application. He argued, the prayer to have the respondent committed as a civil prisoner for disobeying court order if granted, will pave way to the second prayer that is, rent from the suit property be deposited into the Judiciary bank account because no one will continue receiving rent from the tenants. 3 He argued further that the cases cited in the respondent's submission in chief are distinguishable and cannot be applied in this case on the ground that the applications in those cases had combined two prayers that are heard by different courts or coram, they concern court of appeal rules that do not apply in the High Court where the applications were filed and they had no enabling provisions. According to Mr. Ludovick combining two applications in one application in the matter at hand did not offend any procedural law and the same does not offend or injure the respondent in-jany manner: Citing the case of CHARLES S KIMABO VERSUS CLEMENT.Application No..477/03 prayed \ \ that this court to do away-with technicalities and determine-the matter on merits. Alternatively, if this court finds the objection meritorious be pleased to invoke the overriding objective principle and allow amendment and \ ^ separation of the applications. ^ In rejoinder the respondents counsel reiterated her submission in chief. She tried to interpret what it means by status quo when arguing on the \ * merits of the prayer to have' rent from the suit land be deposited in the judiciary bank account. However, I am of the view that such arguments are more relevant to be included in submissions for the main application than in Preliminary Objection. And the fact that they are made in rejoinder, I will not accord any weight to such arguments at this juncture as they will prejudice the applicant who will not have an avenue to respond to the same. 4 I have considered submissions made by counsels for the parties in this application from which it is not disputed that two or more applications may be combined in one application provided they are compatible to each other. In the words used by counsels for both the applicant and respondent, granting one application should pave way to another application. Compatibility of combined applications are to be decided on case by case bases as no one shoe fits all/Before I proceed to determine \ ^ whether the two applications are compatible or' not I find it necessary to highlights facts that led to the application against which this preliminary objection has been raised. \ \ , ,) - \ v / /" On 13th September 2017, thisv court Hon. Mgonya J. granted an order for maintenance of status quo ofxt:he suit land through unobjected prayer made by Mr. Ludovick JNHckson in’ land Case No. 179 of 2017 from which the current application originates. The order was made following allegation that the respondent in this application had shown intention to dispose the suit properly. The said order reads as follows; ’r V "The plaintiff's counsel prays for maintenance o f status quo i N . ** * %i to the property in dispute. The prayer is accordingly granted since the same has been blessed by the Defendants counsel. For avoidance o f doubt, the status quo is to be maintained to the property especially measured approximately ten and ahalf acres located at Kavimbwaza, Goba Ward, now known as Tegeta A streets, Ubungo District within the city ofDar es salaam; pending hearing and determination of this suit( Land Case No. 179 of 2017)." The respondent is alleged to have disobeyed this order hence the current application before me. The application at hand contains two applications; first, application to have the respondent detained as a civil prisoner and second, application for a court order that rent from the suit land be deposited into the judiciary bank account. I agree with the Counsel for the Respondent that this Application is omnibus. However, such an Application is^not fatal unless the two '11 Applications contained in this Application are not compatible. It is the argument by the counsel for the 'Applicant that the two Applications are compatible in the sense that if the Respondent is detained .as a civil prisoner, he will not be able to collect rent due. from the suit property and that will pave way to an application to have rent’ deposited into the Judiciary Bank Account. V \ With due respect-to the Applicant's counsel, the order that was given by \ the court is for maintenance of status quo. Even if this Court will find the Respondent to have disobeyed court order and order his detention as a civil prisoner, it will not automatically pave way to application to have rent from the suit premises remitted into the judiciary bank account. It should be noted that maintenance of status quo does not affect peaceful enjoyment of property to the person who was in possession of the particular property at the time the order is issued. Order to maintain status quo limits only certain rights over the property on which the order is addressed, including the right to dispose and develop the said property. Thus, detaining the respondent as a civil prisoner will not automatically pave way to an application to have rent due from the property which was in possession of the respondent at the time an order for maintenance of e status quo was issued. Moreover, depositing rent into the Judiciary bank account is not among the orders that the court can issue under Order XXXVII Rule 2(2) of the Civil Procedure Code [Cap. 33. R. E. 2019] which provides for penalties in case of disobedience of injunction orders. In that regard, I find the two Applications to be not compatible and I hereby sustain the preliminary Objection raised by the Respondent. I find no reason to employ the overriding principle because the applicant is at liberty to bring a fresh application for contempt of court order if he so wishes. Application is hereby struck out, Cost to follow events. It is so ordered 20/5/2020 COURT: Ruling delivered this 20th Day of May, 2020 in the presence of the Respondent and in the absence of the Applicant who was