MISC LAND CASE APP 24470 OF 2024 scnd 18

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION N0.24470 OF 2024 ANNA EMANUEL MAHINGILA (Adminstratix of the Estate of the late Esteriano Emmanuel Mahingila).........................APPLICANT VERSUS ABDUL ZAID ADAM & 74 OTHERS...................... RESPONDENTS RULING Date of Last Order: 16.11.2024 Date of Ruling: 29.11.2024 MWENEGOHA, J This Application came under section 2(3) of the Judicature and Application of Laws Act, Cap 384, R.E 2019 and sections 95 of the Civil Procedure Code, Cap 33 R.E 2019. The Application is in a nature of a Mareva Injunction, where the applicant seeks to restrain the respondents and any person working under their instructions, to be restrained from tempering, interfering, surveying, trespassing, inserting beacons, proceed with eviction or dealing in any manner, with the applicant's properties found at Farm No.831, located at Pangani Kibaha - District, measuring 8.045 Hectors, which is equivalent to 20 acres, pending the expiry of the 90 days' notice of intention to sue the government, 74th and 75th respondents. This Application was supported by the affidavit of the applicant and the same was heard by way of written submissions. i In his written submissions, Advocate Fredrick Masawe, counsel for the applicant, cited the case of Atilio versus Mbowe, (1967) HCD 287. He insisted that, the applicant has met the three major conditions needed prior to the grant of the Application for Injunction. That, the applicant has a strong case against the respondents. He insisted that, there are triable issues that need the attention of the Court to decide who is the owner of the suit property, described herein above. Secondly, having regard to the circumstances of the case, it appears that, granting an Injunction is just and equitable to prevent irreparable loss on part of the applicant. That, the respondents if not restrained, will proceed to demolish the applicant's buildings found in the said land. Hence the applicant is likely to lose the properties in question. Lastly, the applicant is counsel insisted that, on balance of convenience, it is the applicant who will suffer greater harm than the respondents if this Application is denied. That, to date, the respondents are residing in the area, therefore, nothing will happen to them, unlike the applicant who is fighting to keep his buildings located in the said land. In reply, Advocate Rajabu Mrindoko for the respondents, maintained that, the Application at hand lacks merits. That, the applicant has not met the conditions necessary for granting Injunction as there is no primafacie case between her and the respondents, although it is true that there is no pending suit filed between the parties. Also, there is no evidence that the applicant will not suffer irreparable loss if the Application is denied. That, the Court cannot grant an Injunction simply because the applicant thinks she will suffer an irreparable loss. As for who will suffer greater harm if the Injuction is not granted, the respondents' counsel insisted that, the 2 hard stated by the applicant in her submissions is merely speculative, as neither she nor her relatives are residing in the buildings mentioned. Having gone through the submissions of parties inline with the affidavit in support of the Application as well as the counter affidavit against it, the issue for determination is whether the Application has merits or not. In short, a Mareva Injuction is an exception to the general remedy of Temporary Injunction. It is given or preferred when the circumstances are of a nature that, the applicant cannot have a pending suit due to some legal constraints. In this case, the 74th and 75th respondents are government authorities who need a notice of 90 days before instituting a suit against them. With their presence, then a Mareva Injunction is inevitable. In considering an application for Mareva injuction, the court must satisfy itself that the legal requirements of granting the same are met. One among them the applicant's affidavit has to show that, he or she has the intention of instituting a case against the government and further that, some steps have been taken to do so, see Salvatory Toyi & 5 Others versus Uvinza District Council & Another, Misc. Land Application No. 72 of 2020, High Court of Tanzania at Kigoma, (unreported). I have gone through the affidavit by the applicant. At paragraph 15.0, the deponent has stated that, a 90 days' notice has been served to the 1st respondents, as shown by annexure BA-7. This fact proves that, the applicant has taken some steps towards suing the government. Therefore, this 1st condition has been fulfilled. Further, the Court will see if it is justifiable and convenient to allow the Application as stated in Abdallah M. Maliki & 545 Others versus 3 Attorney General & Another, Misc. Land Application No.119 of 2017, High Court of Tanzania at Dar Es Salaam, (unreported). In other words, allowing the Mareva Injuction is a discretion of the Court. Like in other cases where the decision falls within the use of discretionary powers by the Court, the rule is settled that, such powers must be exercised judiciously. In the case at hand, the affidavit in support of the application shows that, the property in dispute form part of the estate of the late Esteriano Emmanuel Mahingila. The applicant as a legal representative of the deceased's estate, has the right to defend the interests of the deceased as far as the land in question is concerned. This proves that, the applicant has a justifiable reason warranting this Application to be allowed, until the expiry of the 90 days' notice as proposed by the applicant in his chamber summons. At this juncture falso agree that the legal requirements have been met. For the foregoing reason, I find this application to have merits and the same is allowed accordingly. No Order as to Costs. 4