bhaloo and another vs bora 2004 tzhc 12 23 june 2004

(OAR ES SALAAM DISTRICT REGISTRY)

AT OAR ES SALAAM 1. AMIL A.L. BHALOO } 2. ROSEMIN A.A. BHALOO } •••••••••••••..•..•••..•••.••••••••

APPLICANTS

VERSUS entered by the respondent with police support. All efforts to request the defendant to vacate and deliver up the property, the respondent has wrongfully failed and refuses to do so. Further that, the defendant/respondent is intimidating the plaintiff/applicant to convey the property to him Quoting from the book on Principles of Injunction by kuloba at p.77, Counsel submitted that the circumstances in which a mandatory injunction is ordered are those were the infringement of the right has created a state of affairs continuing to damage the plaintiff. At page 80 of the book, the author says that in considering the prayer for the injunction, it is a highly material fact that the defendant continued to do wrong in the face of clear and early protest by the plaintiff. Quoting from Mulla's Code of Civil Procedure 14th Edn, Vol.lII at page 2149/ Counsel submitted that it is only in rare cases that a mandatory injunction is issued in an interlocutory application and that is only for maintaining the status quo. It is further asserted that, a temporary mandatory injunction can be issued only in case of extreme hardship and compelling circumstances and, mostly, in those cases when status quo existing on the date of the institution of the suit is to be resto red. As learned Counsel rightly submitted in support of the accompanying affidavit by the plaintiff, the property in dispute

was forcefully taken away from him in collusion with the police which is denied by the defendant. Going by the pleadings, it appears to me that there are serious matters involved in this suit. Yet still, to my shock and disbelief, the defendant appears to take matters lightly. Both parties were ordered to file written submissions which order plaintiff's Counsel complied with. Up to the time of writing this ruling, which is very close to two months, the defendant is yet to file his and, what is worse, not even an application for extension of time to file them. I take this to mean that this application stand unopposed. It has been held by this court that failure to file submissions as by consent agreed to and ordered is tantamount to non-appearance or want of prosecution (See Hidaya Zuberi vs. Bogwe Mbwana (PC) Civ. App. No.98 of 2003 DSM Registry (Unreported). Having read various literatures on the subject, I can only say that courts are not ready to dish out these types of injunctions very lightly. It has to be said that a mandatory injunction as Mulla says in his book on Civil Procedure (supra), can only be issued in very rare situations. All the same, this does not oust the court's discretion. In this particular case, I have a situation in which the defendant is alleged to have dispossessed the plaintiff of his rightful property so an application is made to have it restored. As already observed in the .,..-\ /", / P. RUg';;;)' JUo(i€··· / 23/6104