Misc

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC. LAND APPLICATION NO. 10 OF 2023 (Arising from Land Appeal No. 12 of2023 in the High Court of Tanzania at Sumbawanga) AMOUR MRISHO KABUNDA........... ............................................ APPLICANT versus :n-. ' =•£ '•'■'■ ■'s'' ‘ '■ '■r, MASHAKA MRISHO KABANJA..................... ........................... .RESPONDENT

RULING 3d'! Juiy & 2db August, 2024 CJ ' . V MRISHA, J. ' <;s.i • • <p ' •••j f. L j. •; < ' : ■■ . V5? . ' * -S 55- V ■' '' Before this court is a Chamber Application by the Applicant, Amour Mrisho Kabunda made under Order XXXVII, Rule 1 (a) of the Civil Procedure Code, Cap 33 R.E. 2019 (the CPC) and supported by an affidavit duly sworn by the abovenamed applicant. Through the chamber summons, the applicant is seeking for the following reliefs: - 1. Granta temporary injunction to restrain the respondent, Mashaka Mrisho Kabanja, his agents or workmen from continuing with construction on the disputed land until the disposal of the suit or until further orders. i 2. Costs 3. Any other relief (s) this court will deem fit and just to grant. In his affidavit, the applicant has averred briefly that he was the Applicant in a Land Application No. 10 of 2G22 before the District Land and Housing Tribunal for Katavi at Mpanda (the trial tribunal) whereby the judgment was delivered in his favour on the 28th day of February, 2023. T 'TvT' " That being aggrieved with the said decision, the respondent lodged an appeal to this court vide Land Appeal: No. 12 of 2023 which is still pending in this court. He also, averred that notwithstanding the said pending appeal, the respondent is continuing with construction activities on the disputed land.. Not only that, but also the applicant has averred

that the act of the respondent continuing with construction on the disputed land results in the land damaging something with is likely to cause inconvenience to his building plans in the event the said pending appeal will be dismissed. On the contrary, the respondent upon been served with a copy of the above chamber summons, has filed a counter affidavit in reply to the chamber 2 application in which he has contended that there is no any construction being run by him on the disputed land. Also, the respondent has contended that since there is no continuation of construction activities in the disputed land, there is no likelihood of causing inconvenience to any building plans by the applicant. He has likewise, contended that the instant application is unnecessary for the interest of justice; hence, need be dismissed for lack of merit. - ; When the matter was called on for hearing, only the applicant appeared in t'.w'r; Y • n person, legally unrepresented, and made his oral submission. The respondent on his side, never appeared during that stage despite having knowledge of the hearing date through Ms. Pendoveera Nyanza, his learned advocate, just as the records depict. As a result, the court granted the prayer of the applicant that the matter be heard ex parte due to absenteeism of the respondent. Submitting In support of his application, the applicant stated that upon

being issued with a judgment and decree in respect of Land Application No. 10 of 2022 of which he won against the respondent, he was waiting for expiration of the time of appeal in order to file execution proceedings with the said tribunal. However, the applicant submitted, before expiration of such time, he was served with a summons from this court requiring him to appear before it and file his reply to the appeal against the said decision of the trial tribunal. 3 According to him, the said appeal was filed by the respondent and is still pending before this court. It was his further submission that during the pendency of such appeal, it came to his knowledge that the respondent has initiated construction works in the disputed land and he iater confirmed that act after paying visit to the disputed land at Mpanda District in Katavi Region. He added that in an attempt to stop the respondent from doing so, he consulted the Ward Executive Officer of Uwanja wa Ndege Ward one Fulgence Mkulile who went to the disputed land, found the respondent running construction activities therein and tried to please him stop doing such activities, but the latter ignored such call claiming he does not recognize the decision of the trial tribunal as he still believes the disputed land belongs to him. 5 Further to that, the applicant submitted that he decided to file the instant application in;order

to stop the respondent from continuing with construction activities in the disputed land. He thus, urged the court to grant a temporary injunction to restrain the respondent and his agents from continuing with construction activities in the disputed area, I have considered the submission of the applicant together with his application which is supported by an affidavit duly sworn by him, as indicated above. It is 4 apparent that what the applicant is seeking from the court is a temporary injunction order against the respondent whom he alleges to have undergone construction activities in the disputed land. Temporary injunction entails a provisional relief that aim to protect the subject matter in the existing condition without the respondent's interference or threat. It aims to protect the Applicant's property from being disposed of or getting destroyed. (See: Jitesh Jayantilal Ladwa vs House and Homes Limited & 5 Others, Miscellaneous Civil Application No. 97 of 2022 and The ■ J-;--., ' Attorney General & Another vs Nguvukazi Group & 37 Others, Miscellaneous Land Application No. 6194 of 2024 (all unreported). The question to be determined by the court is whether by an order a temporary injunction may be granted, as prayed by the applicant. The starting point should be on looking at the provisions of Order XXXVII, Rule 1 (a) of the CPC which the applicant has cited in his chamber

application in order to move the court to grant him the above reliefs. Order XXXVII, Rule 1 (a) of the CPC provides that: "1. Cases in which temporary injunction may be granted or declaratory order made Where in any suit it is proved by affidavit or otherwise— 5 (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree; (b),„ N/A the court may by order grant a temporary injunction to restrain such act or make such other order for the purposeof staying and preventing the wasting, damaging; alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders..." From the above provisions of the law, there is no doubt that in order for a temporary injunction to be granted, there must be some evidence to prove that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree. In our case the applicant has averred through his affidavit and submission that the disputed land which is his property, is in danger of being damaged due to the

respondents acts of construction on that land . 6 He has also claimed that the respondent's continued acts of construction in the disputed land are likely to cause inconvenience to his building plans in the event the appeal by the respondent will be dismissed. The foregoing makes it important for the court to satisfy itself whether the applicant's application has met all the prerequisites for a temporary injunction to be granted. The conditions to be satisfied by a party seeking temporary injunctive order have been discussed in several cases based majorly on Order 37, Rule 1 of the CPC including the famous case of Atilio vs Mbowe (1969) HCD 284 which laid down the conditions for an order of a temporary injunction to be granted; these are: .<>>■■ ■■ 1. The appiicantmustshowaprimafacie case with a probability of success.

2. Theapplicantislikelyto suffer irreparable injury.

3. When the court /sin doubt, it will decide the application based on the balance of convenience. Starting with the first condition, the applicant has said that the Land Application No. 10 of 2022 between him and the respondent was decided in his favour whereupon he was issued with a judgment and a decree, but before he instituted execution proceedings, the respondent apart from filing an 7 appeal with this court in order to challenge the said decision, initiated construction works in the disputed land which is why he has approached this court in order seek a temporary injunction restraining the respondent from further doing construction activities in the disputed land. At this juncture, it is important to understand the meaning of the word 'suit'\n order to see whether the instant application has met the threshold stipulated under Order XXXVII, Rule 1 (a) which inter alia requires that there must be a pending suit when the application for a temporary injunction is being made. The CPC has not defined the word, 'suitj but the various sources including the Black's Law Dictionary, 8th Edition, have offered a definition of that word. Hence, I propose to adopt the definition from that legal textbook as follows: - ,!? '"-i ;■? : f.L ‘ ;• 5:>■,■ ?. "Any proceedingby apartyor parties against another in a court of law" Also, in the case of Exim Bank (T) Ltd vs National Furnishers Ltd,

Misc. Land Application No. 995 of 2017 (HCT at Dar es Salaam, unreported) this case had an opportunity to elaborate more on what is meant by the term suit in the following words: "In other words, suit must prima facie have proceedings the end result of which is a judgment. After judgment there must be a decree and one is expected to file an appeal... there cannot be temporary order of 8 injunction in the absence of a suit (see Oder XXXVII, Rule 1 (a) and 2 (1) of the CPC)." [Emphasis is mine] Again, from the same textbook, the word, 'pracee^/n^entails: "The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry ofjudgment." In the case at hand, it is evident that the suit of which the applicant is referring to, which is Land Application No. 10 of 2022, has already been disposed of by the trial tribunal through a judgment delivered on 28th day of February, 2023, in favour of the applicant, as stated by himself at paragraph 2 ' psu.-i 'pip । of his affidavit. 75■ a: ■•'■‘i ■ -I'!'4 V-' This means therefore, that in the present application there is no pending suit of which the applicant can be called upon to prove a prima facie case with a probabilityofsuccess.Whatispending before this court is a Land Appeal No. 12 of 2023 of which the applicant is not the appellant, but one Mashaka Mrisho Kabanja, the respondent

herein. Again, in the case of Dalpat Kumar and Another, v. Prahlad Singh and Others, 1991 which I am persuaded to follow in the determination of this case, the Supreme Court of India stated inter alia, that: 9 "...It is settled law that the grant of injunction is a discretionary relief, The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant." As shown from the applicant's affidavit and submission, the serious disputed question to be tried in the suit before the trial 'tribunal has already been determined by the trial tribunal and among the reliefs granted to the applicant was for him to be declared the lawful owner of the disputed land. This means as of now there is no serious issue to be determined in the suit. s • J ■ •11 •••’ ,-,x! •> ■' • r > £;: >.._ More so, even looking at the chamber summons, it seems that one of the reliefs sought by the applicant is: "1. Grant, a temporary injunction to restrain the respondent, Mashaka Mrisho Kabanja, his agents or workmen from continuing with construction on the disputed land until the disposal of the suit or until further orders." Flowing from the above excerpt, it is obvious that the words, "until disposal of the

suit"presupposes that there is a pending suit and the order of temporary injunction is intended to last until the final determination of that suit. However, as I have indicated above that alleged suit is nowhere pending as it had io. already been disposed of by the trial tribunal vide Land Application No. 10 of 2022. Hence, it is obvious that the applicant has failed to satisfy the court on the existence of any serious issue to be tried in the suit. It should also be emphasized that, the three conditions for grant of a temporary injunction as stated in the famous case of Atilio v. Mbowe (supra), have to be met cumulatively. (See; Ramla Aziz Msuya v. Equity Bank (Tanzania) Limited & 2 Others, Misc.Land Application No. 28 of 2021 (HCT at Dar es Salaam, unreported). The applicant in this case has not met the first condition, as indicated above. Hence, I find no need to continue testing whether the remaining two conditions have been met. Suffice it for me to find that considering the fact that this application has been brought to this court in the absence of a pending suit involving a serious disputed issue to be tried in the suit, this is not a fit case for which an order temporary injunction may be granted. The applicant ought to go back to the court which passed a decree so that his complaint could be resolved by that land court. Thus, due to the above reasons, I find and hold

that the applicant is not entitled to be granted a temporary injunction order and other reliefs as he has prayed. Consequently, the present application is hereby dismissed. However, ii since the respondent neither appeared in court, nor pressed for costs in the event the application is dismissed, I make no order for costs. It is so ordered. 28.08.2024 DATED at SUMBAWANGA this 28th day of August, 2024. 12