20150821 TZHC Dar es Salaam 1

\.. '; .. . ·~ "" . :1f, • • ii __ _IN_TH_E 11l~H COURT OF TANZANIA DAR ES SALAAM- DISTRICT -REGISTRY- - • I

AT DAR ES SALAAM --MISCELLANEOUS APPI..ICATION NO.84 OF 2015 (Arising From HC Land Case No. 71 of 2~1-S) BENEDICT SUDI ........... APPLICANT

VERSUS MWITA MARWA KISIGOYE .............. . 1 st RESPONDENT HOSEA WAMBURA ............... . 2 nd RESPONDENT MONICA MBALE .............. . 3 rd RESPONDENT WILHELM SYLVESTER ERIO .............. . 4 th RESPONDENT HEMED ABDALLAH KILINDO .............. . 5 th RESPONDENT '---' ~Date of last Order: 29th June, 2015 Date of Ruling: 21 st August, 2015

RULING Feleshi, l.: This is an Application for grant of temporary Injunction filed under Order 37 Rule l(a), Order XLIII Rule 2 and Section 95 of the Civil Procedure Code, [Cap.33 R.E.2002] and is supported by the Affidavit of the Applicant above and further submission made in court by Mr.lmmam Hassan Daffa, Advocate. The Temporary Injunction Order sought is to restrain the respondents or their agents, servants, assigns (supra), or whomsoever will be acting under their instructions or authority from erecting~ structure(s) and changing the ownership by surveying the suit property and applying to be granted the Right of Occupancy of a Land situated at Ununio, Kunduchi Page 1 of 6 ,,_ - I Ward, Kinondoni Municipality-Dar es Salaam from the Applicant to themselves pending the hearing and determination of the suit. Part of the Applicant's Affidavit reads at Paragraphs 4, 6 and 15: "4.... he bought the suit property on 11th day of October,2003 from one KAMBI MFUNGENI .... A copy of the Sale Agreement is hereby attached and marked ... 6 .... in the same year 2003 requested the Kinondoni Municipal Council to conduct survey... the said process of surveying the suit property was in the control of KAMBI MFUNGENI under my instructions ... A copy of the Map Survey is hereby attached ...

15. That in the event the Applicant's landed property situated at Uninio,Kunduchi Ward, Kinondoni Municipality-Dar es Salaam is transferred to Respondents, it will cause great inconvenience to the Applicant.... " In their unanimous response through their respective counter affidavits and submissions in court all respondents presented to this court that the piece of land in dispute which is precisely described by the Applicant was on 7th June, 2001 sold by one AMBO MASOUD to one Pasence Paul Katabalwa from whom they subsequently gained rights and actual possession. Paragraph 3 of the 2nd and 4th respondents joint Affidavit provides in part: "3 ....to our knowledge Kambi Mfungeni whom we know has never owned the suit land so he could not sell in 2003 as his property what belonged to Pasence Paul Katabalwa since June 2001. The 4 th Respondent witnessed the sale of the suit land in lune, 2001 to Patience Paul Katabalwa from Ambo Masoud who was the original owner... " During the hearing of this Application on 29th June, 2015 the 4th Respondent further submitted, I quote: " ... I am the witness in some of the sale transactions. I was the 2nd witness of Paul Katabalwa in 2001 when he bought the land from Page 2 of 6 Ambo Masoud. Katabalwa left for studies and behind I looked after the land. When he came back in 2009 everything was in order. The Applicant emerged in 2009 ... " During

hearing, both parties sought overreliance on the three conditions laid down in the case of Attilio v. Mbowe (1969) HCD 284 which must be satisfied in convincing the Court whether to grant or withhold temporary injunction orders. They are: first, there must be serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed; second, 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 third, · that on balance of convenience there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it. Each side thus strongly urged the Court to find the pleadings, affidavit, counter affidavits and submissions justified its prayers, that is, to be issued a temporary injunction order by the Applicant, and to withhold the grant of the order and dismiss the application with costs by the respondents. Mr.Mnzava, the learned Advocate who represented the 3rd Respondent in addition to his overreliance to Atilio Mbowe's case also cited decisions made in Suryakant D.Ramji v. Savings and Finance ..:- , Ltd and Others [2002] TLR 121 (CAT), Tanzania Union of Industrial and Commercial Workers (TUICO-OTTU UNION) and Another v. Tanzania and

Italian Petroleum Refining Co.Ltd (TIPER) [2001] TLR Page 3 of 6 332, ·Philemon Joseph Chacha and. three others v. South African Airways and three Others [2002] TLR 362, Fellows v. Fisher [1975] 2 ALL ER 829, Kibo Match Corporation Ltd v. Kokea (Kwa Ugoro) Village Council and the Commissioner for Lands, Misc.Civil Application No.284 of 1992 and Elections Supervisory Committee For Coastal Union Sports Club v. Abdallah Omari, Bakari Mwangosho, BILAL wahiyari, Miscl.Civil Appeal No.3 of 1993. He submitted that the decisions fortify his client's prayer which is for the dismissal of the Application with costs. On his part, Mr.Dafa urged me not to rely on those authorities because they are distinguishable. He argued that the applicants in those cases did not satisfy the conditions laid down in Atilio Mbowe (supra). However, it is very unfortunate that he did not substantiate his point to water down Mr.Mnzavas' extensive submission that taking into account the developments made by the 3rd Respondent on the disputed land in terms of the physical structures put in place, the envisioned commercial projects worth Tshs.400 million loan the 3rd Respondent is negotiating with the CRDB Bank. The issuance of temporary injunction against the 3rd ( Respondent therefore, Mr. Mnzava stressed, will be against the conditions laid in Atilio Mbowe (supra). On the contrary, the withholding of such

an order, he said, will not affect the Applicant who -is an imposter and trespasser to the land. The issue for consideration is whether the Application is maintainable. Page 4 of 6 Though I took a bit of my .time to reproduce the above stuff, I will dispose the application on two points. The Application is not maintainable. First, I found the Application is improperly before the Court. This is because, this Application being originating from the Land Case which gained admission into this Court through the Land Case Registry it ought to have been filed as a Miscellaneous Land Application and not a Miscellaneous Civil Application which belong in the completely different Registry of the High Court. Therefore, the Application is bound to be struck out with costs. Since the remedy for the struck out matter is, if not precluded, re-filing of a similar but competent application by the willing party, I will necessarily thus consider the second point. Secondly, in view of the pleadings and evidence deposed in the affidavit, counter affidavits and counsels' submissions, even if the present Application would have been well cited and admitted it would still fail due to its failure to satisfy the three conditions laid in Atilio Mbowe's case above. I agree with the respondents that the Applicant's claim cannot at this stage be given prominence in total disregard of the sale

transaction executed by AMBO MASOUD and one Pasence Paul Katabalwa on 7th June, 2001 about two years before the Applicant gained interest over the same piece of land. Besides, this Court cannot without reasonable cause disregard the huge capital investment so far injected by the 3rd Respondent on that piece of land vis-a-vis a small development alleged to have been . made by the Applicant. It is thus obvious that if this Application will be granted then the 3rd Respondent stands to suffer much than the Applicant Page 5 of 6 · - and other-respondents wbose la\fl{flJI _a_cquisition of the land cannot at this stage be disregarded. lastly, as_ both the Applicant and the 3rd Respondent engaged the - . Kinondoni Municapal Council to conduct land survey to them· as shown in- --- - paragraph 6 of the Applicant's Affidavit above and as well as the 3rd Respondent's Counter Affidavit. Therefore, it is clear that the Applicant's contention in Paragraph 15 is inconceivable as no grant of right of occupancy can be made without meeting the conditions stipulated by the applicable law. Disputes of this nature however serve as a good reminder to have the case disposal expedited. In the upshot, basing on the second ground above, the Application is devoid of any merit and is dismissed with costs. Ruled accordingly. DAT_.~~r,· . ·, laam this 21 st A ust, 2015 ... r 0 ,.~,1/ :/'·,' i!J:;'' ii(!) \\:i ',-\ -·. E. . Feleshi ·--------~ .... ⇒, .. ,.~... -

JUDGE Ruling delivered on this 21 st August, 2015 in the [ ence of Mr. Mr.Edwin Nkalani, Advocate for the Applicant and Mr.Mnzava, Ad~ocate for E. . Feleshi

JUDGE 21.8.2015 Page 6 of 6