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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 6725 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 Rugemalila Mbeikya Mutahaba, Travisnofan Rugemarila Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemarila Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemarila Mbeikya Mutahaba, and Shubi Rugemarila Mutahaba} ........................................................ 1st RESPONDENT ZAMARADI HUSSEIN MKETEMA {Acting as legal Guardian over the landed property on behalf of the beneficiaries Russel Rugemalila Mbeikya Mutahaba, Travisnoian Rugemarila Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemarila Mutahaba, Jordan Ruge Mutahaba, Cloud Rugemarila Mbeikya Mutahaba, and Shubi Rugemarila Mutahaba} ....................... ............................... 2nd RESPONDENT THANGAVELU NALLAVAN VALLI........................................ 3rd RESPONDENT RULING 24/9/2024 &30/10/2024 A. MSAFIRI, J This is the ruling on the Application brought under Order VII Rule 21 (b) (c) (d) and Section 95 of the Civil Procedure Code Cap 33 R. E 2019 i (herein the CPC). The applicants are seeking for the following orders: a) A declaration that the Respondents have acted against the orders of the court which was issued by this Honourable Court on 27th February 2024. b) Punitive orders against the Respondents. c) Costs of the suit. d) Any other reliefs this Honorable court deems fit to grant. The Application was supported by an affidavit deponed by William Kulangwa, the 1st applicant. 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 2 submissions with authorities which I have well considered in determination of this Ruling but I have no intention of reproducing everything that was submitted. The applicants through their counsel Mr Kasanga, claims and submitted on the claim that while there is a pending suit before this court, this court granted an order for status quo ante on the suit premises described as Number 1012273 situated at Masaki area, Kinondoni District within Dar es Salaam. That the court ordered that the status quo ante on the suit premises be maintained until the service of the respondents and appearance of both parties in court. The applicants averred that despite the said court order, the respondents have willfully proceeded with the demolition of the applicants' properties (fixtures and chattels) and made asportation of the applicants' properties to the places only known to the respondents. On their part, the respondents through their counsels have denied vehemently to have been aware of the order of the status quo or any miscellaneous application made against them. They said further that they were never served by the court or the applicants with any document indicating the nature of the court order. They argued that they have not refused the service as claimed by the applicants and added that the applicants counsel appeared after the structure was 3 already torn down. Having gone through the whole evidence in the application which include an affidavit, counter affidavit and the submissions by the parties in court, the important issue for determination is whether the respondents have acted against the orders of the court which was issued by this court on 27/02/2024. It is not in dispute that on 27/02/2024, in Misc. Application No. 3787 of 2024, this court issued an order of status quo ante on the suit premises. The order was issued in the absence of the respondents since they were not yet served with the summons to appear in court on the matter. The status quo ante was to be maintained until the service of the respondents and appearance of both parties in court. In addition, the court issued an order that the summons be issued for the service of the respondents. Since the order of the court was issued exparte, it is obvious that the applicants have a duty to prove whether the order of the court along with the summons were served to the respondents. At paragraphs 2,3,4 and 5 of the affidavit, Mr Kasanga stated that after filing Land Case No. 3149 of 2024 before the High Court, and before the case was set for parties' appearance in the court, the applicants filed for an application for temporary injunction. That before the application was admitted, the 4 respondents unlawfully commenced the demolition of the applicants' properties (fixtures and chattels) affixed at the suit premise. Mr Kasanga stated in the affidavit that, the applicants then addressed the court on the respondents' act and prayed for maintenance of status quo ante which was granted. He said that on 27/02/2024, the counsel for the applicant served the order of the status quo ante to the respondents but the respondents counsels refused to receive the said court order. That the counsel for the applicants then proceeded to post the court order on different parts of the premises where any person can easily read and see it. The counsel said further that he recorded a video explaining the respondents' refusal to acknowledge receipt and service of the court order. That he also recorded how the operators kept on with the demolition process during the service of the court order. The counsel Mr Kasanga said that a copy of a picture proving that the court order was posted was attached in the affidavit and marked as annexure A-2. He also said that a copy of video record showing how the demolition went on during the service of the court order was attached as annexure A-3 to the affidavit. Unfortunately, the court did not see the copy of the picture annexure A-2 which allegedly shows that the court order was posted on different parts of the premises. On Annexure 5 A-3, the court has viewed the video and raised a question on when the demolition seen in the video took place. Since the court order was issued in absence of the respondents and at that time the respondents were not yet served with the summons of Misc. Application No.3787 of 2024, the court refrain from issuing punitive orders against the respondents. This is for the reason that beside the video contained in the flash showing the demolished building, there is no any other evidence to prove that the respondents were served timely and hence made aware of the existence of the court order on maintenance of status quo. According to the counsel for the applicants own words in his affidavit in support of this application, the demolition on the suit premises has begun even before the Misc. Application No. 3787 of 2024 was admitted in court. This is seen at paragraph 4 of the applicants' affidavit and I reproduce it here for easy of reference: "4. That, when the Applicants' application for the temporary injunction was yet to be admitted, the Respondents unlawfully commenced the demolition of the Applicants' properties (fixtures and chattels) which were affixed to the landed property in dispute to wit: land property number 1012273 situated at Masaki Area within Dar es Salaam. Furthermore, there was an asportation of the Applicants' properties to places known by the Respondents." ( emphasis added) ful I 6 The above words from the applicants' affidavit shows clearly that the demolition has already been done even before the court order of maintenance of status quo ante. To what extent did the demolition have been done? This remains the proof by evidence which the applicants did not produce in the court. The video in Annexure A-3 creates even more questions on whether the demolition seen in the video took place before the court order as per paragraph 4 of the affidavit or it was done after the court order was issued. In the circumstances, and considering the uncertainty of the date by which the demolition took place, I find that the applicants have failed to prove that the respondents have disobeyed the court order which was issued on 27/02/2024. Basing on that this application lacks merit and it is dismissed with costs. It is so ordered. 30/10/2024 7