francis sabatele 20 others v dar es salaam city council 4 others 2023 tzhclandd 16628 22 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 76 OF 2023 FRANCIS SABATELE ;.... 1®^ APPLICANT DANIEL ANOSISYE MWAIJENGA 2"° APPLICANT MARY ZAKARIA LWINGA 3"° APPLICANT JOHN MAGERE MAHENYE 4^" APPLICANT EUGENIA MARK SHAYO (Administratix of the estate of the late Hilary George Mashoko) 5'''" APPLICANT GEORGINA RICHARD MATAGI 6™ APPLICANT RUMINATHA KATO MBEKENGA 7™ APPLICANT ESTER SILVESTA MOSHA 8™ APPLICANT ROSE IZIDORI LYIMO 9^" APPLICANT JAMES FRANK MGANGA 10^" APPLICANT JACLINE ALEX LWABINA 11™ APPLICANT LILIAN GOZIBETH BAYONA 12™ APPLICANT AVELINA PAUL KUNAMBI 13™ APPLICANT JOSEPHINE CORNEL KIRA 14™ APPLICANT HILARY KASMIL KIMBI 15™ APPLICANT HARUNA ABDI CHAMBIKA 16™ APPLICANT SATI LEONARD SHAMAKYAU (As an administrator of the estate Of the late Zaituni Ramadhan Othman) 17™ APPLICANT SAID HUSENI YASODA 18™ APPLICANT SALUM SHABANI SHEKI 19™ APPLICANT 1 MLEKE YUSUPH KONDO 20™ APPLICANT BHOKE ROSEMARY MAHEKE (Administrator of the estate Of the late George Kembo Muga) 21®^ APPLICANT VERSUS DAR ES SALAAM CITY COUNCIL RESPONDENT HONORABLE REGIONAL COMMISSIONER FOR DAR ES SALAAM REGION 2"° RESPONDENT PERMANENT SECRETARY, MINISTRY OF PRESIDENT'S OFFICE, REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT 3^° RESPONDENT HONOURABLE ATTORNEY GENERAL 4™ RESPONDENT Date offast order: - 24'^ day of May, 2023 Date ofruling: - 22"^ day ofJune, 2023 RULING I. ARUFANI,J This ruling Is for the application filed in this court by the applicants under Order XXXVII Rule 1 (a) and 4, Section 68 (e) and Section 95 of the Civil Procedure Code, [Cap 33 R.E 2019] seeking for the following orders: - (a) That this honourable court be pleased to restrain the respondents, their agents and any other persons or legal entity from demolishing and dealing with the applicants' 2 properties located at Mzinga Street, Mzinga ward, within liaia District, Dar es Salaam region, pending hearing and determination of main suit filed by the applicants in this honorable court. (b) Costs ofthis application to follow event (c) Any such other order(s) as this honorable court shall deem fit andjust to make. The chamber summons is supported by a joint affidavit of the applicants and it is opposed by the counter affidavit of Lina Lushashi, the officer of the respondent. When the application came for hearing, the appiicants were represented by Mr. Gaston Mwageni, learned Advocate and the respondents were represented by Mr. Thomas Mahushi learned State Attorney and he was assisted by Ms. Linah Lushashi, learned State Attorney. The application was heard viva voce. Arguing in support of the application, the counsel for the applicants prayed to adopt the affidavit of the applicants as part of their submissions. He stated that, the application arose from the action of the respondents to issue demolition notice dated 19^^ October, 2022 which was served to the appiicants by the first respondent and required them to demolish their residential houses and business houses owned by the applicants. He submitted that the applicants are lawful owners of the land In dispute which they lawfully purchased from the Indigenous of that area who were owning them lawfully through customary way from 1999 until 2010. After buying the said land, the applicants developed It by building residential houses and business houses. He further submitted that the applicants Involved the village authority of that time which was named as KItunda Ujamaa Village. The village authority approved the sale of the said land to the applicants and appended their stamp on the sale agreement. Other applicants purchased the land at the time when the administration system had changed from Ujamaa Village to KItunda Street. Other applicants used leaders of Mzlnga Hamlet In witnessing their sale agreements. He stated that, after the applicants purchased the land In dispute, they were granted residential licence by Ilala Municipality from 2005 to 2006. They continued to use their land without any Interference from the respondents. He argued that. In 2017 when the applicants were continuing to use their land, the dispute started between the applicants and the Street Chairman of that time who denied them forms of surveying their land so that they can be granted certificates of title. He stated further that, the grounds used to deny the applicants the stated forms Is the allegation that they had Invaded the land of 4 Mzinga Primary School. The act of denying the applicants the forms for applying for right of occupancy of their land caused the applicants to go to see Ilala District Commissioner and the Ilala Municipal Director and the Regional Commissioner to defend their land they are using lawfully. He stated that, last year the first respondent issued demolition notice for the applicants to demolish their houses on the ground that they have trespassed the school land which was built in the year 2016 which found the applicants there. He submitted that, the dispute between the parties is who is the lawful owner of the land in dispute between the applicants and the respondents. The said dispute is required to be determined in the land case pending in this court. He prayed for the restraint order to protect the right the applicants are claiming in respect of the land in dispute. He cited in his submission the case of Atilio V. Mbowe,(1969) HCD NO. 284 which established the principles to be proved for the Court to grant the order of temporary injunction. He further cited in his submission the case of Auto Mech Limited V, TLB Development Bank Limited & 3 Others, Misc. Land Application No. 73 of 2020, High Court Land Division, Dar es Salaam (unreported) which followed the conditions laid in the case of Atilio Vs Mbowe (supra) and grant the order of temporary injunction. The court stated that there must be prima facie case, irreparable loss and balance of convenience. The counsel for the applicants argued that ail three ingredients have been shown. He submitted that, if the respondents will not be restrained and demolish the houses of the applicants, the applicants will get loss of their properties. He referred the court to the case of Abdi Ally Salehe V. Asac Care Unit Limited & 2 Others, Civil Revision No. 3 of 2012, CAT where the Commentary by Sakar on Civil Procedure Code which laid down the important things to consider when determine the issue of existence of prima facie case. He prayed the court to base on the above stated reasons to grant the order the applicants are seeking from the court for the interest of protecting the properties of the applicants, pending hearing and determination of the main case. Replying the submissions by the counsel for the applicants, the counsel for the respondents prayed to adopt their counter affidavit and submitted that for an order of temporary injunction to be granted the conditions provided under the case of Atilio Vs Mbowe cited by the counsel for the applicants must be established. Starting with the first condition that there must be a prima facie case to move the court to grant an order of temporary injunction, the counsel for the respondents submitted that the applicants have not managed to establish they have a prima facie case before this court. He referred the court to paragraph 6 of the respondents' counter affidavit and stated that the applicants have entered into the land in dispute directly , or Indirectly through one Alois Paul Lyimo. He stated that, the stated Alois Paul Lyimo Instituted Civil Case No. 5 of 1992 at Ilala District Court at Samora Avenue against the Chairman of Likonga village Council claiming Is the owner of land which was In dispute by that time. He submitted that, the applicants in the present application who are successors of Alois Paul Lyimo directly or indirectly they have failed to show how they can prove they are lawful owners of the land in dispute. Coming to the second principle of irreparable loss, the counsel for the respondents disputed the allegation of the counsel for the applicants and submitted that, the loss they will suffer is reparable if they will win the main case. He submitted they can be compensated In monetary terms if their houses will be demolished and thereafter win the case. He further argued that, the dispute is that the applicants are claiming to be the rightful owners of the land in dispute and the respondents stated that the land in dispute is the property of Ilaia City Council. He submitted that the stated land is for increasing the number of classes which is for public interest. He further submitted that the respondents will suffer more hardship because the purpose of the use of the land is for construction of the school which is for public interest compared to the applicants who are individuals. He prayed the application be dismissed with costs. In his rejoinder, the counsel for the applicants submitted that, Civil Case No. 5 of 1992 between Alois Lyimo V. The Chairman Kitunda Village Council which was heard by Ilala District Court was dismissed after the plaintiff failed to establish his ownership to the land. He referred the court to paragraph 1 of page 3 of the judgement of the foregoing referred case and stated it recognised the plaintiff had another land which was out of the land in dispute and it was adjacent to Kitunda Ujamaa Village. However, the issue is whether the land purchased by the applicants is the land which was in dispute in the referred case or is the land which was stated it was one of the lands in dispute. He further submitted that the stated dispute cannot be determined at this stage until when the evidence will be adduced in the main suit to determine who is the lawful owner of the land in dispute. He submitted it is proper under that circumstances for the court to grant the restraint order the applicants are seeking from the court for the purpose of getting chance of hearing the evidence from the parties and determine who is the lawful owner of the land in dispute. As for the issue of Irreparable loss, the counsel for the applicants submitted that, the applicants will suffer irreparable loss as they will lose their residential houses and the businesses they are conducting in the land in dispute. He stated the respondents are also collecting tax from the said businesses. With regards to the issue of public Interest, the counsel for the applicants submitted that, that cannot be used to infringe the interest of the minorities. He stated the school which is Mzinga Primary School is in operation by now and classes are there hence there is no loss which the applicants will suffer compared to the applicants who will lose their residential homes if their houses will be demolished. He implored the court to find there is a need for granting the order of temporary injunction the applicants are seeking from the court for the purpose of protecting the interest of the parties. After considering the submissions from the counsel for the parties the court has found the issue to determine in this matter is whether the applicants deserve to be granted the order they are seeking from this court. The court has found that, as rightly argued by counsel for the parties the conditions governing grant of an order the applicants are seeking from this court were laid down in the famous case of Attilio V. Mbowe (supra) where it was stated as follows: - (i) There must be a serious question to be tried on the facts alleged, and the probability that the plaintiff wHi be entitied to the reiiefprayed. (ii) The appiicant stands to suffer irreparable loss requiring the courts intervention before the appiicant's iegai right is established. (iii) On the baiance of convenience, there will be greater hardship and mischief suffered by the plaintiff from withhoiding of the injunction than will be suffered by the defendant from granting ofit. Starting with the first condition which states there must be serious question to be tried or in other words there must be a triable issue or a prima facie case the court has found it is required to be satisfied the stated triable Issue or cause of action Is in existence between the parties. The court has found that, as stated in the case of American Cyanamid V. Ethicon [1975] 1 ALL ER 504 it is required to be satisfied the suit against the respondent is not frivolous or vexatious. Whiie being guided by the stated condition the court has gone through the affidavit of the appiicant and find the applicants have deposed at paragraphs 2 and 3 of their joint affidavit and it is submitted in the submission of their counsel that the applicants are rightful owners of the land in dispute. They have deposed they acquired the stated iand in dispute after purchasing the same from the originai owners on various dates between the year 1999 and 2010 and after purchasing the iand in 10 dispute they were issued with residential licence by the Ilala Municipal Council. The applicants deposed further at paragraph 8 of their joint affidavit that, on 19^^ October, 2022 they were surprised by being served with 14 days demolition notice directing them to demolish all of their buildings and structures on the land in dispute on the ground that they are not lawful owners of the land in disputed. The counsel for the applicants submitted that the first respondent alleged that the applicants have trespassed the school land which was built in the year 2016 which found the applicants there. Therefore, the dispute between the parties is who is the lawful owner of the suit land and the said dispute Is required to be determined in the land case pending In this court. As for the issue of existence of Civil Case No. 5 of 1992 of Ilala District Court which is stated is relating to the suit pending in this court it is the view of this court that, as rightly argued by the counsel for the applicants it cannot be said the applicants have no rightful claims in relation to the land in dispute before hearing the evidence from the parties and determine whether the applicants are lawful owners of the land in dispute or not. From the above stated facts, the court has failed to see how it can be said there is no triable issue in the applicants' suit which is pending in this court. The court has found there is a triable issue in the mentioned 11 case in relation to whether the piaintiff are the lawful owners of the land in dispute or not as each side Is alleging to be the lawful owner of the land In dispute. In the premises, the court has found that the first condition or principle required to be established for an order of temporary Injunction to be granted has been substantiated In the present application. Coming to the second condition for granting an order of temporary Injunction which is irreparable loss to be suffered if the order is not granted, the court has found that, as stated in the case of T. A Kaare V. General Manager Mara Cooperative Union [1987] TLR 17, the court is required to consider whether there Is a need to protect either of the parties from the species of injuries known as irreparable injury before the right of the parties is determined in a suit pending In court. Under the guidance of the position of the law stated in the above referred case, the court has considered the argument by the counsel for the respondents that, the loss the applicants will suffer if their houses will be demolished and they will win the main case is reparable as they will be compensated in monetary terms but failed to side with his argument. The court has come to the stated finding after seeing the applicants have stated categorically at paragraph 9 of their joint affidavit the irreparable loss they will suffer if the order of temporary injunction 12 will not be granted. The court has found that, if the restraint order will not be granted and the applicants are evicted from the suit land there is great possibility of the applicants to suffer irreparable loss. As rightly argued by the counsel for the applicants, the applicants will lose their home and businesses that they are conducting in the land In disputed. The court has found further that, if the applicants will be evicted from the suit land and their buildings and structures demolished before final determination of the main suit, the applicants will suffer substantial and irreparable loss that will not be possible to compensate them by way of monetary payment or return the applicants to the original position if after determination it will be found that the applicants are the lawful owners of the suit land. The court has found also that if this application is not granted, the main suit pending in this court will be rendered nugatory. After taking into considering all what is deposed in the affidavit supporting the application and in the counter affidavit together with what has been submitted by the counsel for both parties, the court has found that the condition for granting an order of temporary injunction laid in the case of Attilio V. Mbowe (supra) has been established in the present application. If the order the applicants are seeking from this court wili not be granted, the applicants wiil suffer irreparable loss. 13 As for the third condition for granting an order of temporary injunction which is balance of convenience, the court has found the issue to look here is who is going to suffer greater hardship and mischief if the order of temporary injunction will not be granted.. After considering all what is deposed in the affidavit supporting the application and what is argued in the submissions of the counsel for the parties, the court has found that the applicants are the ones who stand to be more inconvenienced than the respondents if the order of temporary injunction sought in the chamber summons will not be granted. The court has come to the stated finding after seeing that, if the houses and structures in the suit land will be demolished, the applicants will be deprived of the suit land before the suit pending in the court is heard and determined, and the suit will be rendered nugatory. On the other hand, the court has found it has not been established the respondents will suffer any inconvenience if the restraint order sought by the applicants will be granted, putting into consideration that the school will not be disrupted its operation after granting the said order. In the premises, the court has found that the applicants are the ones who stand to be more inconvenienced if the sought order will not be granted than the inconveniency which will be suffered by the respondents if the order sought will be granted. 14 From all what I have stated hereinabove, the court has found all the three conditions for granting an order of temporary injunction laid in the case of Atilio V. Mbowe (supra) have been established in the present application. Consequently, the application of the applicants is hereby granted and the order to restrain the respondents, their agents and any other persons or legal entity from demolishing and dealing with the applicants' properties located at Mzinga Street, Mzinga ward, within Ilala District, Dar es Salaam region, pending hearing and determination of main suit filed by the applicants in this court is hereby granted without costs. It is so ordered. Date laam this 22"^ day of June 2022. C5 I. Arufani JUDGE 22/06/2023 Court: Ruling delivered today 22"^ day of June, 2023 in the presence of Mr. Gaston Mwageni, learned counsel for the applicants and in the absence of all respondents. Right of appeal to the Court of Appeal is fully explained. 0\3RT c s I. Arufani JUDGE 2 V- 22106/2023 DlV\ 15