20131211 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA . (DAR ES. SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM LAND CASE NO. 75 OF 2012 AUNALl. K. KHALFAN } TANVEER KHIMJI, ''} R.J. & CO. LTD. · } S. SALE & CO. LTD. } ........... ,. ..... APPLICANTS/PLAINTIFFS . ' . t CARTIDGES &TONERS LTD. } ML ENTERPRISES LTD. } VERSUS THE NATIONAL HOUSING CO.RP}n ............. RESPONDENT/DEFENDANT Date of Ruling: . 11/12/2013 RULING. FauzTwaib, J: It is now settled law in this ju.risdiction that for an .injunction to issue, three principles apply: (i) There must be a serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the ·relief prayed; (ii) That the Court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established; and Page 1 of 9 .(iii) That on the balance there will be greater hardship and rrischief suffered by the plajntiff from the withholding of the injunction than will be suffered by the defendant from the granting of it. ~hese principles were first laid down in our jurisdiction by Georges, O (as he then was) in the now famous case of Atilio v Mbowe (1969) HCD 284. Over the years, there have been attempts to modify the principles, and sometimes to add to them. In appropriate cases, that approach has fitted in well.Perhaps· the most ambitious addition has been that of the late Katiti J. who, on some occasions, invoked a fourth principle, that of public policy or public interest, to. refuse applications for inj~nction. I have in mind the case of COTU {T} OTTU Union & Another v Hon. Iddi Simba, Minister for Industries .and Trade & 7 Others, HCT (DSM) Misc. Civil Cause No. 100 of 1999. The relevant part of the ruling cites the Indian. case of State of Assam v M.S. ·Associates (1994} AIR 1994 CAU 105, where it was held as follows: "While granting a temporary injunction, not only the three ingredients, but in addition ... public interest and/or public policy,· also will have to be considered. The Court cannot be used as an instrument to cause Injury to society, and or loss to community. By exercising equitable jurisdiction to give benefit to somebody, the larger interest cannot be sacrificed." In AlhajMuhidin A. Ndolanga, OKatiti J. had another occasion to • enunciate the public interest and public policy principle, again citing State of Assam (supra)His Lordship: _went farther to say that where public interest exists, the balance: of convenience must always be in favour of the public. I have had occasion to comment on this statement elsewhere (see rhy ruling in Karibu Textile Ltd. v qommissioner General of Tanzania · Page 2 of 9 " -Revenue Authority, 'Tax,Revenue Appeals Tribunal Tax Application No. ;8 -of 2010, unrepo'rted). With 'respect, though I have accepted the relevance of pu°blic policy or public interest, I have taken a more cautious approach than the one taken by Katiti J in the above cases-. I , , have thus re-enunciated. the principle (which, on reflection, is actually not an independent principle -but ·a ·relevant factor when considering the third; balanceof convenience principle and would til_t the balance in favour of the· party who seeks to :rely on public policy). In my view, the principle would run thus: ''In' consideri.ng the balance of convenience principle, the Court may, · where appropriate, take into account public interest or public policy and, on a balance, having in mind the full circumstances of the case, where such· factors outvveigh the Interests of an individual or a group of indivi_duals seeking an injunctive order, the Court may refuse to grant ·such order, and where it is in favour of a party seeking injunctior:i,. all other elements being present, the Court may grant it." It is therefore my respectful view that though public policy or public interest may be a relevant factor,· it is not in every case that it should - take precedence. In other words, it is not necessary that the "balance ·of convenience must always be in favour of public interest or public · policy.I/ Having restated the principles that the Court rshould apply when considering an application for injunction, let me now consider them in light . of,, the application currently before me. The Applicants are tenants -of the Respondent. They occupy various commercial apartments in -the suit premises-a landed property situate at Plot No. 1668/66 Indira Gandhi/Makunganya Street in Ilala District, Dar es Salaam. They maintain that their respective tenancies with the Respondent still subsist, and that they have all along complied with the terms and conditiO[lS thereof. .- Page 3 of 9 On 5th December 2011, the Respondent issued the Applicant~ nine months notices (running up to June 2012) to vacate the premises, on the grounds that she had entered into a joint venture agreement for the development of the property with a third party, who is not a tenant. The Applicants'application for injunction is based on the claim that ,-the said notices are unjustified because: 1. As sitting tenants, the applicants are entitled to be given priority in any re-development of the premises. Thus, the Defendant's decision to. enter into a joint venture agreement for the re- development of the premises while the existing building is structurally,sound and in fair and tenable condition is detrimental to long-term tenants such as the applicants. 2. The notices have . subjected· them . to a "very threatening situation", as they have been occupying the premises for many years for residential and commercial purposes. The noticesare _· thus malicious and aimed at ·depriving them of their enjoyment of the suit premises, since some of their leases would only expire in • , • ' I 2015. 3. The Respondent had renewed the Applicant's leases on diverse dates between January and June 2010. Hence, it is "unthinkable", within such a short period alter the said renewals, for the Respondent to issue notices to va~ate. The Applicants take this as. evidence of "bad motive;', which has caused them panic, embarrassment and inconvenience. · . . The above factors are in fact the bases of the Applicants'· claim in the main suit. They assert that as long-term sitting tenants, they are entitled to a right of first refusal where the Respondent intends to re- develop the property, and that the Respondent's decision to enter into Page 4 of 9 such an arrangement with a ·third party unknown to them was in breach . .... - ~ - ,,, ' :~ " of th i's right. ·• .. In articulating the principles of injunction in. Atilio v Mbowe, Georges fo, .·., . Ir ' 4 : ~ • . O had meant that the Applicant ml!st' prove the existence of all of them .... . '. "' ~ . in order· for injunction to issue. This was subsequently recognized by . Rutakangwa J (as he then was} in ·char/es Msumari& Others v The Director General, Tanzania H~using Bank, Civil Case No. 18 of \ . 1997 (un·reported)' where he said that in any suit before a temporary .. in}~~cti6n is ·granted, the. conditions· must be found to exist ...,.... '" · conjunctively ana not disjunctively. -.:, t ~. ' . The Appli~ants · have _claim;ed that· the noti~es have caused them and their families embarrassment and panic. On this, it is well to recall the words of His· Lordship Rutakangwa in Charles Msumari's Case (supra)/ where he said: "Convenience is not our business. Ou_r, business is doing justice to the . .. ·parties. They only exercise this discretion sparingly and only to. protect the rightsor prevent injury according to [known] principles. The C:ourts shouid not· be overwhelmed by sentiments, however lofty, or m~re high-driving allegations of the ~pplicants such as that denial of the • relief will : cause ,·hardship to them and their families without substantiating the same.~ They have to show that they have a right in . ·· ~- . the. main suit which, ought to be protected or there· is an injury (real or .- . . ..... threatened) . . .l.'.'Jhich ought to be prevented by interim injunction and . . . : . ,. ~ that.if that wasnot done they would suffer irreparable injury and not one that can possibly be r(=paired." Since. all three;ingredi~nts must. exist in order fqr injunction to issue, it is possible. to reject an applic?tion for i.nj~nction by considering only one principl~. - . -·Applicants c;1re. ..,.unable If the ~ . . ' . . . to prove that a particular principle .. applies_ in ..their Javou~, the. Cour;t may,. on t~at basis alone, dismiss the . application. I will thus proceed on that premise. Page 5 of 9 Arguing in favour of the application, counsel for the Applicants · has relied on the case of L.A. Kaare v General Manager, Mara Co- operative Union {1984} Ltd. [1987] TLR 17 where Mapigano J (as he then was) laid down principles akin to those in Atilio v Mbowe. In the present case, I think it is possible to determine the issues before me without recourse to public interest. Counsel Sekule for the · Respondent has made a strong submission in opposition to the application. He has contended that his clients have sufficiently proved that they are entitled to injunctive orders on those principles-they . have a bona fide contest with the Respondent, that the balance of convenience is in their favour, since there is a prtma facie case with a probability of success and, as sitting tenants, they stand to lose more if injunction is not granted. As for irreparable loss, the Applicants assert that some of them are legal persons who are likely to lose their goodwill and business" · opportunities if they are evicted from the premises_. They will also be·· inconvenienced and embarrassed _by the eviction. Counsel also referred the Court to the prayers in the main suit which would be rendered nugatory if injun,otion is refused. He cited the case of Kibo Match Co. Ltd v H.S. Impex Co. Ltd (2000) TLR 52, where Bwana J granted injunction upon being satisfied that unless immediate action is taken, · the Applicant maY, suffer irreparably. The issue, then, is whether the Applicants in this case have sufficiently proved that the principles applicablecall for a favourable conclusion with - regard to their application. Counsel Sekule has referred to a series of authorities to substantiate his client's position that injunctive reliefs .are not available to the Applicants. · Briefly, it is the Respondents' argument that the Applicants have not been able to show that there is, in thef r case, a serious question o_r that . Page 6 of 9 the balance of convenience will tilt against them more if injunction is ,:. ,. .._ 1' refused, than would do so against the Respondents if it were granted. Mr. Sekule has alluded to the central core of the Applicants' claim, which is that it is wrong for the Respondent to enter into a joint venture with a third' party; and that it should have done, so with its tenants. ' Hehas referred' the Court to a number of earlier decisions of this Court in which,., in similar circumstances, applications for injunctive reliefs have not succeeded. In T.5. International Ltd. v Jubilee Development Ltd.(HC-DSM Civil Case No. 53 of 1996}, Mapigano J. was quite blunt when he said: "The proposition that a tenant is entitled to a right of first refusal in. a sale of premises he occupies is so startling that I am surprised ., that is has been made. As I understand the law, no · such right exists." f:1apigano J's deci~ion was cited with approval in J.M. Ramji& Others v National Housing Corporation, (High Court, Land Registry, DSM) Land ·case No. 160 of 2006. In the latter case,Rugazia J., stated: "I find myself inclined to say that I am as startled as bmy brother Judge because as far as I am aware there is no law in our statute books which gives sjtting tenants that so-called right of first refusal in joint venture projects. I think the landlord has a final say in such arrangements, so the tenant can be given that option through mutual agreement rather than trying to force it on the landlord. Since no law has been enacted so far to create such a right to sitting tenants, I am afraid to say that the Applicants have a very we'ek case." Page 7 of 9 w - - - ... ·- - - - - - - - - - - - ----··- --- ·-·------·- Again, a similar position was taken by Nchimbi, J. in Mohamed Ahmed v National Housing Corporation, Land Case No. 4 of 2008 (High Court, Land Registry, DSM). His Lordship said: '-'I must say that there is no indefinite tenancy in the eyes of the law. It is never envisaged to be so. A status of a tenant is therefore, never permanent at all. At some stage it has to come to an end by way of termination." In MeraliFidahusseinRaJabali& Another v National Housing Corporation, Land Case No. 132 of 2009 (Hi_gh Court, Land Registry, DSM)Ngwala J. further quoted and followed the reasoning of the House of Lords in American Cyanamid Co. v Ethicon Ltd. [1975]1 All ER 504 where it was held:' " ... [T]he governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing· his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have. sustained as a result of the defendant's cdntinuing to do what - was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable · at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiffs claim appeared to be at that stage." . The above appears to be the legal position as articulated in a long line ' ' of decisions of this Court on the matter at issue in this application. I am inclined to agree with my brother and sister Judges who, faced with .this question before, have rendered decisions which, I respectfully propose, reflect tne correct position of the law. Page 8 of 9 • Indeed, I !<now of no principle of lawthat grants a tenant a pre-emptive 'rig hf to force himself upon his landlord, where the latter decides to sell . his property, enter into a joint venture· project or a partnership with a third party or simply dispose of his property in any other manner. In the absence of a ·contract binding upon the landlord that grants such a right, the tenant has no basis upon which to lay such a claim. In my considered view, the granting of an injunction order to restrain the landlord from proceeding with his plans, especially where, as in this case; an alternative remedy of reparation by way of damages is ava-ilable, would tilt the balance of convenience against the landlord for rio legally j·ustifiable reason. ' In the ·circumstances, I am far from being persuaded to exercise this Court's discretion to grant the orders sought. The application is devoid of merits and I dismiss it. Costs to be in the cause . • r •_,., ·- DATED and DELIVERED ·at Dar es Salaam. this16 th day of December, 2013. FauzTwaib JUDGE Page 9 of 9