Diocles Rugaimukamu Kyabukwaya RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB REGISTRY AT BUKОВА MISC. LAND APPLICATION NO. 000002765/2025 DIOCLES RUGAIMUKAMU KYABUKWAYA………………………………. APPLICANT VERSUS THE IZIMBYA VILLAGE COUNCIL…………………………………1ST RESPONDENT THE BUKOBA DISTRICT COUNCIL………………………………..2ND RESPONDENT THE ATTORNEY GENERAL......................................................3RD RESPONDENT RULING OF THE COURT Date of last Order: 20/02/2025 Date of Ruling: 05/03/2025 BEFORE: G.P. MALATA, J The present applicant filed an application for mareva injunction under section 2(3) of the Judicature and Application of the Laws Cap. 358 R.E., 2019. Application is supported by an affidavit sworn by the applicant. The orders sought by the applicant are; 1. This Honourable Court be pleased to issue the Mareva injunction Order restraining the 1 Respondent, her companions, workers and or 1 Agents from further entering into the Applicant's developed land located there at Kakindo hamlet, Izimbya Village, Izimbya Ward, Bukoba and ferrying down the planted crops during the existence of the statutory Notice 2. Costs of this Application to follow the event. 3. Any other Order(s) and Relief(s) as this Hon. Court deem fit and just The applicant’s affidavit in support of application depicts that; 1. That, I am the Applicant to this Application thus conversant with the facts to be deposed hereunder; - 2. That, the Applicant had from 1977 commenced to purchase the adjoining parcels of land from eight owners namely Mussa Majara, Ephrahim Mussa, Brighton Ngaiza Mussa, Murshid Mussa, Mustafa @ Dickson Salimu, Adolph Kagombola, Jalia Salim and Saida Salimu thus emerged with a considerable huge farm with a number of plants with distinct varieties. Some of the copies of the Sale Agreements collectively marked Annexure 'AA' are herewith attached to form part of this Affidavit with the leave of this Hon. Court. 3. That, after having successfully purchased and occupied the plots the Applicant proceeded to develop it by not only erecting the residential premises therein but also planted more plants for cash and food crops be it perennial or seasonal ones including the banana trees, coffee trees, maize, yams, Cassava, fruits and beans. 2 4. That, the 1" Respondent under the superintendent of the village leaders namely Everigist Mwiza Evarista and Abdulmalick Mutalemwa Taslima had on 08th January, 2025 in companion of a number of Villagers and others encroached into the Applicant's developed land and tyrannically ferried down a number of crops covering the width of 5 paces and 97 paces long on pretext that they were constructing the Road for the development. 5. That, nevertheless, there was neither a prior consultation nor consent of the mentioned exercise from the Applicant apart from the absence of the mandatory fair compensation of the damages he had suffered from the acts occasioned by the 1 Respondent. 6. That, in response to the encroachment and the untold damages the Applicant on 10/01/2025 wrote the Statutory Notice of the intention to sue by serving the 1 Respondent through the Express Mail Service (EMS), while the 2nd & 3rd Respondents signed the dispatch book upon the services of the copies. The copies of the Statutory Notice, the EMS Receipt and the Dispatch Books are collectively marked Annexure 'BB' and herewith attached to form part of this Affidavit with the leave of this Hon. Court. 7. That, soon after the receipt of the Statutory Notice the Kakindo hamlet chairman one Abdulmalick Mutalemwa Taslima had on 15th January, 2025 convened the meeting by arbitrarily condemning the Applicant and 3 ordering him to be isolated from the Village mates including the place of water apart from visiting his place of residence. 8. That, there is the highest imminent terror of further damaging the Applicant's property by further cutting down the crops which support his life on economic and food source aspects before the elapse of 90 days for filling the Suit against the Respondents. 9. That, the Applicant will suffer an irreparable loss over his property if this Honourable court will not intervene to grant this Mareva injunction for the ends of justice by protecting his property pending the fulfillment of the conditions of the Statutory Notice. On the other hand, the respondents filed counter affidavit sworn by Everigist Mwiza Evarista. The heart of the affidavit in paragraphs 3-10 elucidate that; 3. That the contents of paragraph 2 of affidavit are disputed due to the facts that when the road were been constructed/expanded there were neither crops nor any trees to be cut down, since the applicant agreed the road be expanded passing through his land to facilitate passage of the community for the village development, it should be noted that it was not only the applicant whose land was affected by the said road but many other villagers because the said road were made after village assembly convened and all people agreed to it. 4 4. That the contents of paragraph 3 and 4 of the affidavits are disputed in totality further the respondents state that, there are no any development in the area be it trees or houses built in the area, the construction of the road has been completed and it being used by the people and nothing were ferry down as alleged by the applicant. 5. That, the facts under paragraph 4 of the affidavit are disputed on the ground that the expansion of the said road were discussed in the village assembly on 19/10/2017, where as in the said meeting in which the applicant’s daughter and wife appearing in the minutes no. 26 one Melisiana Diocres (wife) and No 74 Devota Diocres (daughter) were present and could not oppose the decision, further that immediately before starting expansion the village assembly was convened and all the villagers were informed on the roads which were about to be expanded including the roads which passed through the land of the applicant. Copies of the village assembly dated 19/10/2017 and 19/12/2024 minutes are hereby attached and collectively marked as RUZ-1 to form part of this counter affidavit 6. That, the facts under paragraph 5 of the affidavit are disputed due to the facts that the applicant being the member of village assembly consented to the said construction through the village meeting as stated under paragraph 5 above and he cannot disputes since he could not oppose, and the same has been there documented awaiting for implementation until on 08 5 January, 2025 when the said resolution were implemented and since the villager themselves decided willingly there was no requirement of any compensation. 7. The facts under paragraph 6 of the affidavit are noted but it is disputed with regard to the contents of the notice and the claim in the notice are not the same as in this application. 8. The facts under paragraph 7 of the affidavit are disputed due to the fact that expansion of the said road were done on a single day, there has no more activities done in the area but the people are now using the said road freely to facilitated village development, and the fact the respondent have ordered the villagers to isolate him and barring him from fetching water are false allegation as it has no proof therefore are vehemently disputed. 9. The facts under paragraph 8 are disputed in Toto there are no any possibility nor intention of further expansion of the said road, the completed roads are now used peacefully by all the villagers including the applicant and his family. 10. The facts of paragraph 9 of the affidavit are disputed it is the people of the village who will suffer irreparable loss is they are stopped from using the said road which is paramount for the people of the village use, it is therefore the interest of justice this application be dismissed with costs. On 20/02/2025, this matter came for hearing and both parties appeared represented. The respondents appeared represented by Mr. Nestory Lutambi 6 learned State Attorney whereas Mr. Lameck J. Erasto Advocate appeared for the applicant. Arguing in support of the application Mr. Lameck J. Erasto learned counsel stated that, the present application for mareva injunction has been preferred pending expertly to ninety days’ notice within which to sue the Government. He prayed to adopt the Affidavit in support of the application. He stated that, the reasons for the application are stated in paragraphs 2 to 9 of the affidavit. The paragraphs are reproduced herein in above. Mr. Lameck J. Erasto learned counsel submit that, if the Court will desist from granting the sought order, the respondents will continue to ferry down and destroy the remaining trees and crops. To cement the position, he referred this Court to the case of Mujibu Islam Mutanda and another vs. Wilson Christian Sekulo and 3 others, Misc. Land Application No. 112/2022 at page 6,7 of the Ruling. He submitted that, the applicant has vividly established existence of prima facie case. He cited the case of Leonilah Kishebuka vs. Dastan Novat Rutageruka and two others, Land application No. 70/2022 and the case of Neema Yona Mtahuba and 23 others vs. TANROADS and AG, Misc. Land Application No. 3630 of 2024 where it referred Court of appeal decision in the case of Abdu Ally Salehe vs. Asac Care Unit and 2 others, Civil Revision No. 03/2012. CAT Dar es Salaam which insisted on the need to establish a prima facie case. 7 Based on reasons stated on what he stated as grounds for grant of injunction as stated in paragraphs 2 to 9 of the affidavit, which is supported by the afore state cases, Mr. Lameck J. Erasto learned counsel prayed the application to be granted. In reply thereof, Mr. Nestory Lutambi learned State Attorney opposed, the application for want of merits. He commenced by adopting the affidavit sworn by one Everigist Mwiza Evarista in opposition of the application. He submitted that, for the court to grant orders for mareva injunction, the applicant must demonstrate that, there exists three elements as stated in the case of Atilio vs. Mbowe (1969) HCD No. 635. The elements are, one, existence of prima facie case, two, applicant is likely to suffer irreparable loss and three balance of convenience on sufferance. He submitted that, the applicant has failed to establish prima facie case. Going through applicant’s affidavit from paragraphs 1 to 9 of the affidavit, he failed to establish prima facie case instead the applicant just laid down allegations. He submitted that, applicant’s referred cases of are distinguishable. Whereas in the case of Mutanda (supra) a notice of thirty (30) days was issued requiring the applicant to demolish the house, in the case of Leonila (supra), the applicant was issued thirty (30) days’ notice within which to demolish a house. All notices lapsed before expiry of ninety (90) days’ notice to sue the Government. 8 With precision, he added that, in the case of Leonila (supra), the Court state that, the applicant must demonstrate a strong prima facie case or a good and arguable case. In the circumstances therefore, the applicant was required to demonstrate it and not averring allegation without any tangible evidence. As to the second of issue of irreparable loss, he stated that, alleged irreparable loss must be that which cannot be attorned by way of damages. In paragraphs 3 and 9 of the respondents’ affidavit state that there is nothing ongoing on the land in dispute. A mere fear by the applicant cannot justify grant of injunction order. Mr. Nestory Lutambi learned State Attorney referred this court to the case of case of Ukurwa Limited vs. National Ranching Company Limited and Attorney General, Misc. Land Application No. 60 of 2023 at page 8 and 9 of the Ruling. Where the court held that, “Fear of removal while the life span of the notice issued to the applicant is expressly clear cannot stand. The fear must always be determined on the basis of the facts disclosed in the affidavit”. The respondents have clearly stated the position in their affidavit that, nothing is going on the land in dispute. This is confirmed by the applicant who failed to provide any status but alluding fear of unknown before the Court. In the circumstance of no proof of loss likely to occur, balance of convenience, the road constructed in the land in disputed is for public use and all villagers of Izimbya 9 village and public at whole. Any order issued by this court in this application will have adverse effect to the public and all villagers of Izimbya as opposed to individual interest of the applicant. The Applicant stands to suffer no more damages over the public and villagers of Izimbya Village. He submitted that, the applicant has failed to pinpoint the need for grant of mareva injunction in the circumstances. Finally, he prayed that, the applicant’s application be dismissed with costs. Having gone through the application, this court gathered that, one, the applicant demonstrated that he acquired the land by purchase from various villagers, two, he developed the land in dispute by building house, planting banana trees, coffee trees, maize, yams, cassava, fruits and beans, three, stated that, the respondents invaded the land on 08/01/2025 while with villagers commenced cutting tree and crops belongs to the applicant in the land in dispute, four, that there was no consent from the applicant to ferry down the applicant’s crops and trees, five, the respondents with Izimbya Villagers encroached into the Applicant's developed land and tyrannically ferried down a number of crops covering the width of 5 paces and 97 paces long and constructing road which is used by the villagers and other people, six, following the trespass, the applicant issued notice of intention to sue the Government, seven, that there is likelihood of similar event of the cutting trees and crops to haven thence causing food scarce and economic hardship to the applicant before expiry of the ninety (90) days’ notice to sue the Government 10 issued by the applicant and eight, that irreparable loss will be caused to the applicant. Before exercising discretionary mandates on whether to grant or not the reliefs sought, this court finds plausible to highlight as what is all about mareva Injunction Mareva Injunction is another type of interlocutory injunction issued by the court preventing the opposite party from dealing with the whole or part of the subject matter in any way pending legal proceeding which are taking place or is about to be brought by the plaintiff. Mareva injunction is granted when a court is satisfied that, the applicant has a strong prima facie case, a real risk of the defendant dissipating assets to frustrate a potential judgment. That, granting the injunction would be "just and equitable" considering in all the circumstances, essentially meaning it is the most appropriate course of action to prevent the defendant from doing anything in respect of the subject matter. The circumstances which may trigger for issuance of mareva injunction includes visible existence of threat, disposition, wastage or transfer or removal of property from jurisdiction of the court. Besides, under our laws, mareva injunction is applied, where the applicant is prevented by law from filing proceeding in the court of law because of legal impediment. During that period, the applicant is allowed to file this type of 11 injunction seeking restraint order. A good example is on suit against the Government under the Government Proceedings Act, Cap.5 R.E.2019 where the plaintiff is not allowed to file suit unless ninety (90) days’ notice has expired. Having stated the circumstances in which mareva injunction can be applied, I now find indebted state the principles governing grant of injunction, mareva injunction inclusive. For Mareva injunction to be granted there must be; One, existence of strong prima facie case. In this principle, the applicant must demonstrate a credible and substantial claim against the defendant to warrant issuance of such an order. Two, risk of asset dissipation. The court needs to be convinced that, the defendant is likely to move, destroy, or dispose of subject matter to avoid satisfying a potential judgment if one is awarded. Three, is balance of convenience. In this aspect, the court weighs the potential harm to the applicant if the injunction is not granted against the potential harm to the defendant if it is granted. It deals with consideration of necessities and the like. Four, existence of irreparable loss which cannot be attorned by way of damages. That, in case of refusal to grant the order, that the applicant’s sufferance cannot be attorned by way of damages. 12 Five, existence of honesty on the applicant side. That, the applicant must demonstrate that, he has clean hands on the matter, so as to prevent the court from being used as tool to deny or delay attainment of one’s rights under the contract of which parties consented to. Six, consideration of public interest and/or public policy. That, courts 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 large interest cannot be sacrificed. This is a principle gathered in the case State of Assam Versus M/S M.S Associates Air [1994] Gau 105 “While granting a temporary injunction not only three ingredients’ must be observed but in addition to it 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 large interest cannot be sacrificed” The above legal principle has been adopted and used by our courts through numerous cases, to wit between Alhay Muhidin A. Ndolanga and Alhay Ismail Aden Rage Versus the Registrar of Sports and Sports Association and others Misc. Civil Cause No. 54 of 2000 (unreported) where the Court held: 13 “It is trite law, as well as trite learning, that in granting or not granting injunction public interest, or Public Policy, has to be considered, so that the Court makes sure, that it is not used as an instrument or tool, to cause injury to society, or loss to community. Thus, in the courts exercise of its equitable jurisdiction to give benefit to somebody the large interest of the community cannot be sacrificed. In the event, balance of convenience, must always be in favour of the public. In summary therefore, with only one principle satisfied the injunction cannot stand on one foot like a Masai in the grazing grassland”. Seven, existence of just and equitable ground. The court must be satisfied that granting the injunction is fair and appropriate in the given circumstances. This is echoed by section 2(3) of the Judicature and Application of Laws Act, Cap.358 R.E.2019 which provides that: “Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920, and with the 14 powers vested in and according to the procedure and practice observed by and before Courts of Justice and justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said common law, doctrines of equity and statutes of general application and the said powers, procedure and practice may, at any time before the date on which this Act comes into operation, have been modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of Her Majesty in Council, or by any Proclamation issued, or any Act or Acts passed in and for Tanzania, or may hereafter be modified, amended or replaced by other provision in lieu thereof by or under any such Act or Acts of the Parliament of Tanzania: Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary This court is also guided by the decision in the case of Christopher P. Chale vs Commercial Bank of Africa, Misc. Civil Application No.635 of 2017 where Hon. Mr. Justice Mwandambo as then was High Court Judge principled that; 15 “It is also the law that the conditions set out must all be met and so meeting one or two of the conditions will not be sufficient for the purposes of the court exercising its discretion to grant an injunction.” Looking at the above principle, it is with no iota of doubt that, the score point is existence of danger or threat of wasting, alienating, transferring and disposing the subject matter to avoid satisfying a potential judgment if one is awarded. In that regard, it is designed to protect the applicant’s interest against the dissipation. In the present case, the applicant was to demonstrate and meet all the conditions for the grant of such order. In the case at hand, the applicant failed to raise any issue of threat or danger imposed to the applicant’s properties by the respondents, whether continuing or is about to take place, thus calling for issuance of mareva injunction. He failed to; one, demonstrate to the satisfaction of the court if after constructing the road, there is anything going on the piece of land, two, the respondents averred that, there is nothing going on as the road has already been constructed. This fact was not refuted by the applicant, by filing reply to counter affidavit. It is a principle of law that, the evidence by the respondents presented through counter affidavit was not controverted by the applicant by filing a reply to counter affidavit. The effect of not contradicting evidence of the other party is a presumption that, one has nothing to say thus, what is stated remain the position 16 on the matter. The above position is echoed by the previously decision by this court stated in the case of East African Cables (T) Limited vs Spencon Services Limited, Misc. Application Case No. 42 of 2016 (unreported) where Hon. Mr. Justice Mruma principled that; “In law affidavit and or counter affidavit (as the case may be) is evidence. It is a voluntary declaration of the facts written down and/or sworn to by the declarant before an officer authorized to administer oaths. Unlike pleadings (plaint and written statement of defence and other pleadings), affidavit and counter affidavit are prima facie evidence of the facts stated therein. When a fact is stated on oath, it has to be controverted on oath and this gives the court an opportunity to weigh which fact is probably true than the other. When the fact sworn to or affirmed is not controverted then it is deemed to be admitted. When a person swears or makes a sworn declaration of a fact, the best way to challenge him/her is to swear a fact which tends to show that what he sworn to was false. Putting him to strict proof of the fact without giving your side of the story which you want to be believed, amount to admission of the fact.” 17 Similar position is boomed by the court of appeal in the case of Inspector Sadick and two others Vs Gerald Nkya, Civil Application 8 of 1996, where it was stated that; “First, Mr. Songoro, as a very senior legal officer, ought to have known better that the proper way to contradict the contents of the counter -affidavit of the respondent was not by making statement from the bar but was by filing a reply to the counter -affidavit.” Three, failed to demonstrate the extent of destruction of trees and crops which could have been presented through pictures. The court was left in dilemma as there is no tangible evidence if there is house, trees or crops as the respondent are denying the facts. It was the duty of the applicant to convince the court by production of such evidence but in vain. Four, applicant confirmed that, the road has already been constructed with width of 5 paces and 97 paces long where trees and crops were cut down. Five, there is no existing applicant’s property which is at jeopardy following completion of the road construction. The applicant has alleged that, the respondents might do the same in remaining area, however there is no indication if there is another project passing through other remaining area of the farm. Six, the applicant has issued notice of intention to sue the Government raising claims for compensation of destructed trees and crops. This mean that, the damages are attorned by award of damages. 18 Seven, the applicant is invoking fear of unknown which in law cannot be a foundation for grant of injunction. All said and done, this court finds that, the applicant has failed to exhaust and point circumstances and conditions for grant of mareva injunction which is issued upon proof of strong prima facie case establishing existences of threat or danger or wasting, alienating, transferring and disposing any applicant’s property. There is nothing proven by the applicant that, there are ongoing or about to happen any threat or danger in the applicant’s properties. In the event, I find the application is without merits, Consequently, MISC. LAND APPLICATION NO. 000002765/2025 is hereby marked dismissed with no order as to costs. ORDER ACCORDINGLY DATED at BUKOBA this 5th March, 2025. G. P. MALATA JUDGE 05/03/2025 19 RULING delivered at BUKOBA this 5th March, 2025 in the presence of all parties. G. P. MALATA JUDGE 05/03/2025 20