dar es salaam water supply and sanitation authority another vs tabu hassan legal representative of the late salma pili tamaa mbele another 2021 tzhclandd 6874 17 decem

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO.247 OF 2021 (Originating from Land Case No. 68 of2021) DAR ES SALAAM WATER SUPPLY AND SANITATION AUTHORITY................................................................ 1st APPLICANT THE ATTORNEY GENERAL................................... ,...2ND APPLICANT VERSUS TABU HASSAN (as a legal representative of the late Salma Pili Tamaa Mbele) 1st RESPONDENT MSOLOPA AUCTION MART &TRIBUNAL BROKER 2nd RESPONDENT RULING Date of Last Order: 01. 12.2021 Date of Ruling: 17.12.2021 OPIYO, J. The applicant here in above filed this application seeking for a temporary injunction order against the respondents pending the determination of the main suit, vide Land case No. 68 of 2021. The application was lodged under Order XXXVII Rule 1(a) and (d) and section 68(e) of the Civil Procedure Code, Cap 33 R.E 2019 and supported by the affidavit of Florence Saivoiye Yamat, the applicant's principal officer. The application i followed the acts of the 1st respondent's here in above, to forcefully enter into the land, Plot No. 792/1 & 793/1, Block "B", situated at Boko, Kinondoni Municipality at Dar Es Salaam, here in after called the suit land and demolish the 1st applicant's house including taking away all materials after the demolition without any lawful justification. The applicant therefore, is praying for restraint order against the respondents restraining them from entering, evicting and selling the disputed property pending hearing and determination of the main suit. The application proceeded by way of written submissions, Advocate Zakia Seleman Mroy appeared for the applicant while Mr. Twaha Taslima, learned counsel appeared for the respondent. Submitting in support of the application, learned counsel for the applicant relied on the case of Atilio vs. Mbowe (1969) HCD 284, in which the three conditions prior to granting of the temporary injunction order were outlined as follows: - The first condition is the existence of a prima facie case to be tried by the court of law. It was submitted by the learned counsel for the applicant that, there is a primafacie case being established by the applicant as to who between the applicant and the respondent is a lawful owner of the land in dispute. The second issue for consideration as per Atilio versus Mbowe, supra is whether the applicant will suffer irreparable loss if the order of injuction 2 is not granted. The counsel for the applicant maintained that, the court's intervention is necessary to protect the applicants from further injuries by the respondent's which may be irreparable. He cited the case of Best Sellers Retail India (P) Ltd versus Aditya Niria Nuvo Ltd, (2012) 6 SCC 792, where it was held;- " Yet, the settled principles of law is that even where prima facie is in favour of the plaintiff, the court will refuse temporary injunction if the injury suffered on account of refusal of temporary injunction was not irreparabid' Submitting on the balance of inconveniences issue it was maintained that the respondent has nothing to lose neither to suffer irreparable loss as compared to applicants suffering that might be incurred as already been affected by the demolition effected by the respondent. In reply, the respondent's counsel was of the view that, the application at hand has already been overtaken by events. The actions complained to have been done by the respondents came as a result of execution of a lawful order of the District Land and Housing Tribunal for Kinondoni as stated in the applicant's affidavit at paragraph 7 and 8. After all the applicants have already filed a stay of execution to stop the execution of the said decree. The said order is somehow similar to the one sought in this case. The counsel for the respondent cited among others, the case of National Housing Corporation versus Peter Kassid and 4 Others, Civil Application No. 243 of 2016, Court of Appeal of Tanzania at Dar Es Salaam, (unreported), where it was held that:- 3 "It seems to us that besides the authority of National Housing Corporation versus Hamisi Luswago (supra) relied upon the applicant, this matter was essentially stirred by the applicant's understanding that, an injection of an execution process and a stay of execution are one and the same things, as they both result in a temporary stoppage of happening of the happening of execution of decree. While we would agree that there is a grain of truth in that observation." As for the requirements for injunction as stated in Atilio versus Mbowe (supra), the respondent's counsel insisted that, the applicant has failed to fulfil all the conditions stated in the said case for the court to exercise its discretionary powers in this application. That, only the 1st condition on the triable issue do exists but the remaining two conditions were not established to exist in the applicant's case. Therefore, this application should be dismissed as all three grounds must be fulfilled before injunction is granted as per Ota Edward Msofu & Company versus Equity Bank Tanzania and Others, Misc. Civil Application No. 681 of 2020. In his brief rejoinder, the counsel for the applicant maintained that the matter at hand is not res judicata as argued by the respondent's counsel. What transpired in the Ward Tribunal of Bunju in Land Case No. 47 of 2005 was raised as an objection in the main suit, therefore the same will be dealt with the said case, Land Case No. 68 of 2021, not at in this application. On the fact that the case is overtaken by events, the applicants' counsel was of the view that, since the execution by demolition 4 of the applicant's property was done contrary to the law then the demolition was done to a wrong property. The decree by Bunju Ward Tribunal in Land case No. 47 of 2005 was executed beyond what was decreed. I have considered the submissions of the applicant through her respective Advocates. Also, I have gone through the affidavit and counter affidavit as adopted by the parties in their submissions. I also perused the records available in relation to the main suit, Land Case No. 68 of 2021. I am partly in line with the contention of the respondent's counsel that some actions complained of by the applicant over the suit land has already been overtaken by events allegedly in execution of the decision of Bunju Ward tribunal. The execution was carried on by Msolopa Investments Company Limited. In other words, some reliefs sought by the applicants in this application, including restraining entering and evicting applicants, have already been overtaken by events. Granting the same will defeat the spirit behind the order for temporary injunction in terms of Order XXXVII Rule 1(a) and (d) and section 68(e) of the Civil Procedure Code, Cap 33 R.E 2019, preventing occurrence of undesired acts. The only relief that remains unaffected is restraining sale of disputed property as the court was not told that the suit property have already changed hands. The usual purpose of an injunction is to preserve the status quo in situations in which further acts of the specified type, or the failure to perform such acts, would cause one of the parties' irreparable harm or harm that cannot be adequately remedied by an award of monetary 5 damages. Therefore, only this relief is granted, for if not the prayers in the main suit will be rendered nugatory. On the concern by the respondents that the case at hand is res judicata is of no use in this application as the same has been raised as a preliminary point of objection in the main suit and it is still pending to be determined. No details of the same is available in this application to enable its determination. Therefore, it cannot be entertained here. Under these circumstances and for reasons given in the analysis herein above, the application is only granted to the extent explained. I make no order as to costs Ordered accordinqlv. M.P. OPIYO, JUDGE 17/12/2021 6