ardhi plan safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 658 OF 2024 (Arising from Land Case No. 571 of 2024) ARDHI PLAN LIMITED................................................................ APPLICANT VERSUS BUYUNI COMPANY LIMITED..................................................... RESPONDENT RULING 10/03/2025&08/04/2025 GWAE, J This ruling originates application for temporary injunction made under Order XXXVII Rule 1 (a) and (b) and 2 (1) and Section 68 (c) (e) and Section 95 of the Civil Procedure Code, Cap 33, R. E, 2019. The applicant, Ardhi Plan Limited is praying the following orders:- 1. That this Honourable Court be pleased to issue a temporary injunction order against the respondent preventing or restraining the Respondent, its members, directors, employees, workmen, agents, its assignees, representatives, and any person and authority acting under instruction or authorization of the respondent or claiming any right in or having interest in or from respondent's land, from permanently or temporarily selling, disposing, parting away with, alienating, transacting, mortgaging, acquiring, revoking, damaging, or otherwise is in i danger of being wasted or remove the property described as Farm No.2406/1 with Certificate of Title No. 38445, Registered Plan No. 86245 located at Pemba Mnazi, Kigamboni Municipality, in Dar es Salaamf'the Land") (in which the respondent by contracts dated 19 October 2021 and 2022 respectively, had expressly agreed to give 40% of the said land to the applicant) with a view to defrauding the applicant who is a creditor to the respondent, and from committing a further breach of contract or other injury of any kind, and to prevent the ends of justice from being defeated, pending hearing and determination of the main suit. 2. Costs be granted to the Applicant. 3. Any other Order (s) or reliefs this Honorable Court may deem just and fair to grant. The application was supported by a sworn affidavit of one Gombo Samandito Gombo, the applicant's Managing Director, who stated that on 19th October 2021 the applicant and respondent entered into a contract in which the respondent agreed to give 40 % of the land property described as Farm No.2406/1 with Certificate of Title No. 38445, Registered Plan No. 86245 located at Pemba Mnazi area within Kigamboni Municipality, in Dar es Salaam Region ("hereinafter "the suit property") in consideration of town 2 planning, survey and roads grading in the said land to be carried out by the applicant. The applicant further stated that, subsequent to the execution of the parties' agreement, the applicant performed her contractual duty under the said contract and that he had already submitted town planning drawings and survey to the respondent and the Ministry of Lands as agreed by the parties to the said contract but the respondent has not handed over 40% of the surveyed land despite the fact that, the parties have subsequently signed another contract after the applicant had accomplished her contractual obligations. He also stated that, the applicant is likely to suffer irreparable loss since the respondent is about to dispose the suit property to the third party. Resisting the application, the applicant through an affirmed counter affidavit of her Principal Officer one Rashid Ahmend Kilindo who stated that the applicant has not fully performed her obligation under the agreement. However, he admittedly stated that, she has not handed over the surveyed farm to the applicant till now and the applicant will be handed over his 40% of the land surveyed after completion of her contractual obligations. She added that, the applicant was to complete his work within six months from 3 the date of getting necessary permits from the relevant authority, the thing which she has not done. The respondent also denied to have any intention to dispose the suit property adding that up to date the applicant is the one who has the control of the suit farm and that she has actually reported his inability to complete the work. During oral hearing of the application, both applicant and respondent enjoyed legal services from Ms. Ziada Mkwazu assisted by Hekima Mwasita and Mr. Arufani Daimu respectively, learned advocates. In support of the application, Ms. Mkwazu was of the submission that the applicant has met all three requisite conditions to namely; one, serious triable issue, which is entitlement of 40% as claimed in the applicant's Main Case No. 571 of 2024 before the Court following various complaints by Ms. Eva Ndewalia Joseph Nangela to the Ministry of Lands. Secondly, that, there is irreparable loss or injury and thirdly balance of convenience, which according to Ms. Mkwazu, both conditions have been met since the applicant have discharged 98% out of 100 % of the contractual her obligations as exhibited by annexture (AB2). 4 Finally, Ms. Mkwazu submitted that, the circumstances of the matter at hand reveal that, it is the applicant who will suffer more hardships than the respondent if the injunctive order is not granted as prayed. He urged this court to refer to Ramla Aziz Msuya vs. Equity Bank (T) limited and two others, Miscellaneous. Land Applications NO. 28 of 2021 (Unreported- H.C). Seeking a dismissal order, Mr. Daimu submitted that, this application saves no useful purpose as 40 % of the farm was to be handed over after completion of the work adding that, the farm in question is still under the applicant's control. The respondent's counsel also argued that, there is no report whatsoever demonstrating any obstacles faced by the applicant in the exercise of his contractual obligations except mere allegations that, one Eva is interfering with the contract entered by the parties or that she has caused the project impediment taking into account that, she is not joined in these proceedings. Mr. Daimu also argued the applicant has not pleaded issues of completeness of the contract to the extent of 98 % of the contract neither the pleaded fact pertaining the alleged completeness of survey plan. It is thus the argument of Mr. Daimu that, if injunction is granted as prayed in 5 this application, the applicant will certainly be restrained from performing his contractual duty and that there is no proof that the suit farm is about to be disposed of since the third party has not been disclosed by the applicant and that injunctive order, if found appropriate, should not cover the whole farm except 40 % of the farm. In his rejoinder, advocate Hekima paused a question that if the suit farm is sold, the applicant will inevitably sustain more irreparable loss and inconvenience taking into account that, the respondent is still with the ownership of the farm in question. Ms. Ziada cemented that since there was a proof of intervenor through Misc. Land Application duly filed before this Court. Ms. Ziada further stated that, if the sought injunction is granted, each party shall have his or her entitlement after the determination of the main suit. She further argued that an injunction should be for whole farm since even the respondent is claiming the whole farm. Now back to the court's determination of the merit or otherwise of the application for the sought injunctive order. In this juncture this Court is to focus on, whether the applicant has demonstrated, that there is a trial issue between the parties in the Main Case, whether the applicant will suffer more irreparable loss or is the one who will face more inconvenience or more 6 hardships than the respondent before his or her legal right is established, if this application is refused. This legal position has been stressed in plethora of the courts' decisions for instance Abdi Ally Salehe vs. Asac Care Unit Ltd & 2 Others, Civil Revision No. 3 of 2012 (unreported), wherein the Court of Appeal of Tanzania held: " The object of this equitable remedy is to preserve the pre dispute state until the trial or until a named day or further order. In deciding such applications, the Court is only to see a prima facie case, which is one such that it should appear on the record that there is a bonafide contest between the parties and serious questions to be tried. So, at this stage the court cannot prejudice the case of either party, it cannot record a finding on the main controversy involved in the suit; nor can genuineness of a document be gone into at this stage. Once the court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable ofbeing atoned for by way of damages. There, the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for worse; that he will suffer damage as a consequence of the plaintiff's action or omission, provided that the threatened damage is serious, not trivial, minor, illusory, in significant or technical only. The risk must be in respect of a future damage 7 See also the judicial precedents in the case of Tanzania Breweries Ltd. vs. Kibo Breweries Ltd and another [1999] EA 341 and that of Tanzania Breweries Ltd. vs. Kibo Breweries Ltd and another [1999] EA 341. In our present matter, considering the facts pleaded by the parties, I have observed that, there is no dispute that, there is a Main Case between the main that is Land Case No. 571 of 2024 whose basis is on existence of the contract between the parties as claimed and admitted by the applicant and respondent respectively through their affidavit and counter affidavit. It is further revealed that, the applicant would be entitled to 40% of the surveyed land upon completion of the project. That being the case, I find the applicant's interest has to be protected since it is certainly clear that he started discharging his contractual duty though not fully as exhibited by both parties. I have further noted that, the contract between the parties is in threats to be interfered by a third party as patently seen through Miscellaneous Land Application No. 19611 No. 2024 filed by the said Eva Nangela as an intervenor. Similarly, in the applicant's application there are three written statements of defence of three different persons contending to have been authorized by the applicant, these are:- 8 written statement written and duly signed by Rashid Kilindo as the Principal Officer on 12th April 2024 and defence filed by Eva Joseph Nangela as Attorney for the respondent as well as WSD by Ashura Said which she duly signed on 24th July 2024. According to the written statements of defence filed by the different persons in the Applicant's Main Case. The conflicting interests over the suit farm is are therefore blatantly revealed by the parties' pleadings justifying the Court to safely find that, there is a triable issue in the applicant's main case aforementioned. Likewise, this court apprehends an existence of more irreparable loss, which cannot be adequately compensated for in damages considering the nature of the persons mentioned who are alleging to be representing the respondents. I have correspondingly assessed the balance of convenience and formed opinion that may be suffered by the applicant as well as more inconvenience and greater hardships than the one that may be suffered by the respondent. On the issue on whether it is appropriate to issue an injunctive order over the whole farm or 40 % of the suit farm. Since the land subject of the parties' contract measuring 7068 acres, it is my considered view that, it is safer to issue injunction over the whole farm since the Farm No. 2406/1 has 9 not yet been completely transformed into identifiable surveyed plots for the intended for the applicant. As to the third element on the balance of convenience, considering the fact that, the first applicant's tenants are currently in occupation and that certificate of title is still bearing the name of the first applicant, I therefore find that, it is more convenient if this application is granted than if it is refused. In the upshot, this application is grantable. The sought injunctive order is therefore issued against respondent, her members, directors, employees, workmen, agents, its assignees, representatives, and any person and authority acting under instructions or authorization of the respondent or claiming any right in or having interest in or from respondent's farm, from preventing or restraining permanently or temporarily selling, disposing, parting away with, alienating, transacting, mortgaging, acquiring, revoking, damaging, or otherwise is in danger of being wasted or remove the property described as Farm No.2406/1 with Certificate of Title No. 38445, Registered Plan No. 86245 located at Pemba Mnazi, Kigamboni Municipality, in Dar es Salaam in order to prevent the ends of justice from being defeated, pending hearing and determination of the main suit. Costs of the application shall io abide the outcome of the Main Case No. 571 of 2024 pending before the Court between the parties, the suit which ought to be expeditiously heard and determined. It is so ordered DATED at DAR ES SALAAM this 8th day of April 2025. <6 v/ ISIO>X ii