SCANNED 3787 OF 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 3787 OF 2024 (Arising from Land Case No. 3149 of2024 at the High Court of Tanzania, Land Division before Hon. Msafiri, J.) DVCI ENTERPRISES LTD ............................................... 1STAPPLICANT MLANGWA ACCESS LIMITED.............................................. 2nd APPLICANT VERSUS MWACHIMAGA RUGE MUTAHABA (Acting as Legal Guardian over the landed property on behalf of the beneficiaries Russel Rugemaiiia Mbeikya Mutahaba, Travisnoian Rugemariia Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemariia Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemariia Mbeikya Mutahaba, and Shubi Rugemariia Mutahaba} ................................. ................... 1st RESPONDENT ZAMARADI HUSSEIN MKETEMA (Acting as legal Guardian over the landed property on behalf of the beneficiaries Russei Rugemaiiia Mbeikya Mutahaba, Travisnoian Rugemariia Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemariia Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemariia Mbeikya Mutahaba, and Shubi Rugemariia Mutahaba} ............... ........ ............ 2ND RESPONDENT THANGAVELU NALLAVAN VALLI....................................3rd RESPONDENT RULING 21/8/2024 824/9/2024 A. MSAFIRI, J This is the ruling on the Application for temporary injunction brought by the applicants under Order XXXVII Rules 1 and 2 and Section 95 all of the Civil Procedure Code, Cap 33 R.E 2019, (herein the CPC). The / i applicants are praying for the court to issue a temporary injunction against the respondents to restrain them from unlawful evicting the applicants from the landed property in dispute and demolition thereof of the developments (fixtures and chattels) affixed by the applicants to the landed property in dispute pending the determination of the main suit. The Application is supported by an affidavit deponed by William Mlangwa, the Principal Officer of the applicants. The Application was contested by the respondents who filed their joint counter affidavit. The counter affidavit was deponed by each of the three respondents i.e. Mwachimwaga Ruge Mutahaba, Zamaradi Hussein Mketema, and Thangavelu Nallavan Valli. The application was heard by way of written submissions and parties have complied with the court's schedule order. The applicants were represented by Mr. David Kasanga, learned Advocate who drew and filed the applicants' submissions in chief. The Joint Reply submission was drawn and filed by Ms Faith Kiwanga, and Ms. Happy Mgallah, learned Advocates. I have gone through the submissions by all the parties through their counsels and I commend the counsels for the well-presented submissions with authorities which I have well considered in 2 determination of this Ruling but I have no intention of reproducing everything that was submitted. It is trite law that the Court's power to grant injunction is predicated upon the applicant meeting, cumulatively, all the three conditions set out in the celebrated case of Atilio vs Mbowe. (1969) HCD 284. The three conditions as pointed out by the counsel for the applicants in his submission are briefly that first, there must be a prima facie case/serious question to be tried on the facts alleged, second, that the court interference is necessary to prevent irreparable injury befalling the applicant before his legal right is established (irreparable loss) and third, the applicant have to establish that he will suffer more mischief than the respondent if the sought injunction will not be granted(balance of convenience). My major task now is to determine whether this application is meritorious i.e. whether the applicant have met cumulatively all three mandatory conditions as pointed out herein above. On the first condition; Mr. Kasanga for the applicants submitted that there is an issue to be tried before the court. That the Applicants have filed Land Case No. 3149 of 2024 whereby they are claiming for the declaration that the 1st and 2nd respondents' actions and omissions- 3 amount to unconscionable conduct which induced expectation to the applicants of executing a ten years Lease Agreement. In the affidavit, the applicants have stated that on 26/01/2021, the 2nd applicant entered a lease agreement on the suit property with one Prof. Gelaserwabyo Mutahaba to lease the suit property for the two years duration. That however in the midst of the lease agreement, the 1st and 2nd respondents succeeded Prof Mutahaba after being declared the beneficiaries of the children of the late Rugemalira Mutahaba who are minors. The late Rugemalira Mutahaba was the legal owner of the suit property. That the applicants came with an offer for extension of lease agreement from the two years period to ten (10) years period which was to commence from 1st January 2024 to 31st December 2024. The counsel for the applicants submitted that the said offer was communicated to the 1st and 2nd respondents and their lawyers and they both conceded to accept the offer. That the signing of the ten lease agreement took longer than expected while the applicants kept on investing in and on the landed property as they planned a big launch of their business around December 2023. That sometimes in November 2023, the applicants were served with a notice of non-renewal of the lease agreement by the 1st and 2nd ( 4 respondents. That according to the notice, the applicants were to vacate the suit property on 24th February 2024. That the said notice caused not only mental distress but a financial mental distress. Hence according to the submissions by the applicants both in the affidavit and the submission in chief in court, the serious issue to be tried by the court is the breach of the expectations regarding the ten (10) years lease agreement caused by the 1st and 2nd respondents. This is also reflected in the applicants/ plaintiffs' Amended Plaint in the main case. On their side, the respondents contested that there was ever a lease agreement entered on 05/11/2020 as purportedly claimed by the applicants. The respondents through their counsels admitted the existence of the lease agreement of 26/01/2021 entered between Prof. Gelaserwabyo Mutahaba and Wiliam Mlangwa of Mlangwa Associates. The respondent's counsel argued that the 2nd applicant is named Mlangwa Access Limited. That the 2nd applicant is not privy to the lease agreement of 2021. The counsels argued that Mlangwa Acess Limited, the 2nd applicant and DVCI Enterprises Ltd were not privy to the lease agreement of 2021. That, the applicants have no right to pray for any orders with regards to the suit property for they have no case against the respondents. From the submissions by the parties, I have gathered that the parties 5 are contending on the existence of the lease agreement between them. While the applicants maintain that they have entered a lease agreement with Prof. Mutahaba who was the previous legal representative over the property of the late Ruge Mutahaba, and that there was a promised expectation of extension of lease agreement for ten years from the 1st and 2nd respondents, the respondents are maintaining that the applicants have never been privy to the existed lease agreement let alone the expected ten years agreement. I find this to be a serious issue in dispute between the parties which the court have a chance to determine it. The first condition has been met by the applicants. On the second condition, Mr Kasanga for the applicants submitted that the interference of this court is necessary since the applicants have suffered irreparable loss. He said that according to the case of Attilio vs Mbowe (supra), the court must be satisfied that the damage which the plaintiff suffer will be such that mere monetary compensation will not be adequate. The counsel for the applicants submitted that the applicants have suffered and will continue to suffer not only financially but also mentally. That the irreparable loss was caused by the demolition of the applicants' fixtures and chattels by the 1st and 2nd respondents on the suit property. 6 That the said demolition has resulted in the applicants' suffering the loss financially in a manner that the applicants' investment has cost more than USD 500,000. In the case of Abdi Ally Salehe vs. Asac Care Unit Limited & 2 Others, Civil Revision No. 3 of 2012, (CAT-DSM), (Unreported) at page 8, it was held that: "Once the court finds that there is a prima facie case, it shouid then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages". I have considered the submissions by the applicants both in the affidavit and in court by their counsel and I am not convinced that the claimed sufferance is not capable of being atoned. Looking at the claims by the applicants that they have suffered financial loss by the demolition of the fixtures and chattels which they were developing/building at the suit property, I believe they can be paid by the damages in the main suit in case the court decide in favour of the applicants. The applicants have stated that they have suffered not only financially but also mentally. However, I believe that although the applicants have legal personality, they are not individuals hence they could have demonstrated to the court how they have suffered mental anguish but they did not. The proof that the applicants' loss are purely monetary which can be 7 compensated by damages is clear at paragraphs 22 and 23 of the applicants' affidavit. Paragraph 22 stated that the applicants have made efforts both individually and through legal representatives to claim the loss and unnecessary expenses incurred due to the respondents' actions. That however the efforts turned out to be fruitless hence they have decided to institute a main claim against the respondents. At paragraph 23, the applicants claim that the respondents' actions has caused the applicants hardships i.e. loss incurred from the expected profit and loss incurred by the applicants in seeking alternative sources of income. From the above analysis, I find that the claimed irreparable loss are not the one that cannot be monetary compensated as they are all financially sufferings and loss. The applicants have failed to establish the second condition. On the third condition, the counsel for the applicants submitted that if the injunction is not granted, then the 1st applicant has already suffered and will continue to suffer since the investment has gone in vain, unlike the respondent who will still be the owner of the land in dispute. While in their counter affidavits, the respondent has averred that they are the one who 8 stands to suffer more on the ground that the minors who are the beneficiaries of the proceeds of the estate will suffer irreparable loss. That if the application succeed, the transaction will remain pending making the minors failing to access their basic needs. I have already found that the injuries which the applicant claims to suffer are capable of being atoned in money terms. Therefore, it is my further finding that the applicants are not in the position of suffering more than the other parties as the financial loss and the expected income which has been established by the applicants previously are all capable of being monetary compensated. It is for the above reasons that I find that the applicants have failed to establish the two conditions and since the three mandatory conditions has to be met cumulatively, this application cannot succeed and is hereby dismissed with costs. 9