elifariji k lima others vs boad of trustees of the national social security fund 2018 tzhclandd 568 20 april 2018

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) AT MWANZA MISCELLANEOUS LAND APPLICATION N0.29 OF 2018 (Arising from Land Revision No. o f 2018) 1. ELIFARDI K. LIMA.....................................1st APPLLICANT 2. SUMA MGAYA..................... ..........................2nd APPLICANT 3. ALLY KITING........... ..................................... 3rdAPPLICANT 4. DOSSA LUKINDO........................................... 4th APPLICANT 5. NOEL ALLAN NYAMUBI...................................5thAPPLICANT VERSUS THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND................... RESPONDENT Last order: 28/02/2018 Final Ora! Submissions date: 28/02/2018 Judgment: 20/04/2018 RULING MAKARAMBA. J.: The Applicants are seeking for an injunctive order to retrain the Respondent or his agents from evicting the Applicants from Houses located at Plot Numbers 39, 41 and 43Ext-RTC, Block F, Nyakato, Mwanza, pending hearing of the Revision Application. The Application has been brought under Orders XLIII rule 2 and XXXVII rule (2)(l)respectively and Sections 68 (e) and 95 of the Civil Procedure Code, 1966 [Cap. 33 R.E. 2002] and all other enabling provisions of the law. # Page 1 of 10 The Application has been taken at the instance of Andrew Innocent Luhigo, learned Counsel for the Applicants and other and further grounds as adduced at the hearing of the application. The background to the application briefly as could be gathered from the supporting affidavit is that on 16th June 2017, the Applicants brought an Application No.560/2017 before the Mwanza District Land and Housing Tribunal against the Respondent for breach of tenancy agreement together with Miscellaneous Application No.560B of 2017 for an injunction order against the Respondent, which was granted. However on 31st January 2018 when Application No. 560 of 2017 when the Application came for hearing before Hon. Masao, Chairperson', when the learned Counsels for the parties were proposing issues, the Chairperson summarily rejected the Application on ground that there were no triable issues. Consequently the injunction order granted pursuant to Miscellaneous Application No.560B of 2017 became extinct. The Applicants are aggrieved by the rejection/dismissal of their application and have applied for revision before this Court and hence the instant application for injunctive order since according to the Applicants, the threat of eviction is real as the Respondent has already issued three months notices for eviction to the Applicants since April 2017. According to the Applicants, there are serious triable issues in the filed Revision which are likely to be determined in the Applicants' favour and therefore if the prayers in the Application are not granted the Applicants will suffer an irreparable loss. Page 2 of 10 In his counter affidavit, the Respondent aver that at the hearing of the application before the trial Tribunal, the Applicants' Counsel failed to raise issues and hence the summary dismissal 'of the application. The Respondents further avers that there were no relationship between the Respondentand the Applicants as the Tenancy Agreement and LeaseAgreement. The Respondent further states that the Applicants have not demonstrated sufficient cause to warrant issuance of temporary injunction and hence the application is devoid of merits and thus be dismissed with costs and in any event the Applicants had already been granted injunction previously. The Application was disposed of orally, by Andrew Innocent Luhigo, learned Counsel for the Applicants and M/s Zainabu learned Counsel for the Respondent. The learned Counsel for the Applicants premised his submissions on the conditions for consideration in an application for injunction as per the decision of AtffiovsMbowe (1969) HCD no. 284, namely, existence of a serious triable issue and probability of entitlement to a relief; irreparable injury to be suffered; and balance of convenience. On whether there is a serious question to be tried on the facts as alleged and probability that the Applicants will be entitled to reliefs prayed, the application, the Applicants argued that in the pending application for revision, the issue sought to be tried is whether it was proper for the Chairman of the trial Tribunal to dismiss the matter which was pending before him while the parties and the Tribunal were framing . issues with the regard to the matters which was before the Tribunal. Replying to this submission, M/s Zainabufor the Respondent argued Page 3 of 10 that the Applicants were heard but failed to make their case and therefore there is no serious triable issue and chances that the Applicants will succeed in the revision are very narrow. The contested issue in so far as the existence of a serious triable issue is concerned is premised on the Dismissal Order by the Chairman of the Tribunal which simply state as follows: "Basing on submissions by the advocate's and the pleadings I find no any triable issues that have been pleaded by the applicant. For that reason I reject the application under OVII Rule 11(a) o f the Civil Procedure Code, Cap.33 R.E. 2002.1 make no order as to costs, (emphasis supplied) It is so ordered. Masao £ Chairman 31/01/2018" The issue is whether the Chairman of the Tribunal was right in rejecting the application for want of triable issues under Order VII Rule 11(a) o f the Civil Procedure Code, Cap.33 R.E. iWZAccording to the Chairman of the Tribunal he purported to exercise his powers to reject the Application under Order VII Rule 11 (a) o f the Civil Procedure Code, Cap. 33 R.E. 2002,which stipulates thus: Order VII rule 11 The plaint shall be rejected in the following - cases- (a) where it does not disclose a cause o f action;" Page 4 of 10 In terms of the provision of the law the Chairman of the Tribunal purportedly invoked in exercising his powers to summarily rejected the Applicants' application; the reason ought to have been failure to disclose cause of action in the pleadings. The issue is whether the reasons stated by the Chairman, namely, "no any triable issues that have been pleaded by the applicant"amounts to "non-disclosure o f cause o f action. "In my considered view, this is a serious triable issue. On the second condition, the learned Counsel for the Applicants argued that the Court's interference is necessary to protect the Applicants from the kind of injury which may be irreparable before their legal rights are established. Amplifying on this point, the learned Counsel for the Applicants stated that the Applicants with their families live in the disputed properties and therefore if the order for injunction is not granted it will cause great inconveniences to them and destabilize their families. In reply the learned Counsel for the Respondent submitted that the Applicants have failed to satisfy this Court on how they will suffer irreparable loss/injury, and in any case whatever they will suffer may be compensated and there is no evidence that the Respondent refused to receive rent from the Applicants. The Respondent is the one who stand to suffer more, since all this time the matter has been in Court the Respondent has not received any rent from the Applicants and incurs security costs; to maintain the premises and pay for insurance, the learned Counsel for the Respondent further submitted. As for irreparable loss, the learned Counsel for the Respondent further submitted, the Respondent also has staff who may wish to live in Page 5 of 10 those houses, which is why the Respondent's claim is based on a fundamental change of conditions as per the Notice of Termination issued by the Respondent to the Applicants. After serving the Applicants with the Notice, the Applicants did not vacate the premises. Instead they lodged a matter before the trial Tribunal. In the course of the hearing the matter, the Applicants were granted an Interim Injunction order on 25/07/2017.Until now six months have lapsed. It was up to the Applicants to look for alternative accommodation. It will not therefore serve the ends of justice, for the Applicants have being granted a sixmonths' injunctive order, to get yet another period to continue living in the suit premises. This will be a loss on the part of the Respondent in : terms of rent and use which was intended for accommodating the Staff ! of the National Social Security Fund (NSSF) who are living in other accommodations thus suffering great inconveniences. Upon this Court asking the 4th Applicant, Mr. DosaLuhindo to comment on the submission by the learned Counsel for the Respondent that, all this time the matter has been in Court the Respondent has not received any rent from the Applicants, he responded that as it was stated in the Tenancy Agreement, rent was due for renewal every end of June of each year. However, since giving them Notice of Termination, the Respondent has refused to receive rent and for them they are still renting in the disputed houses. On the third condition, the learned Counsel for the Applicants submitted that on a balance, there will be greater hardship and mischief suffered by the Applicants from withholding the injunction than will be suffered by the Respondent from granting it. The Applicants will have to trade for other homesteads while unprepared for the same; thus Page 6 of 10 exposing their families to inconveniences and who will be rendered homeless. The Respondent is a parastatal body whose activities include • dealing in real properties and there is no claim that the Applicants have failed to honour their part of the deal. In reply the learned Counsel for the Respondent argued that, the Applicants have not established any hardship or mischief they will suffer from refusal of grant of injunction. There is no likelihood of the matter to be determined in favour of the Applicants, given that the trial Tribunal followed proper procedures in determining the application. The Chairman of the trial Tribunal having misapplied and misconstrued the applicable provision of the law in rejecting the Applicants' application summarily, and the previous injunctive order: having effluxed with passage of time, the Applicants have approached this Court seeking for an injunctive order pending hearing and determination of their application for revision which they have lodged beforethis Court. In an application for injunction, the discretionary powers of the Court are being sought. These powers are exercisable judiciously upon adduction of sufficient reasons to the satisfaction of the Court on the Applicants establishing the conditions for grant of temporary injunction as clearly adumbrated in the now celebrated case of AtiUovsMbowe (1969) HCD no. 284. An injunctive order being an equitable relief, serve as its main purpose, the protection of the status of the parties .pending determination of their rights in a matter already filed in court, and in the instant case the application for revision. The pendency of a main action in court therefore forms the basis for the application of injunction. The issue is whether the application for revision was the most appropriate Page 7 of 10 procedure for contesting the order of the Chairman of the trial Tribunal summarily rejecting the Applicants' application on ground of failure ofthe pleading to disclose any triable issues. The order by the Chairman of the trial Tribunal purportedly was exercised under OVII Rule 11(a) of the Civil Procedure Code, Cap.33 R.E. 2002\ which concerns rejection of a plaint for want of cause of action and not lack of triable issue. This asl pointed out earlier raises a serious triable issue in the pending revisionand thus a sufficient reasons for grant of injunction. In my considered view the order of the Chairman of the trial Tribunal did not conclusively determine the matter the Applicants had lodged before the trial Tribunal. The cause of action was therefore the Notice of Termination the Respondent, the landlord, had served on the Applicants, the tenants. The Applicants and the Respondent were in a landlord-tenant relationship whose terms and conditions were derived from a Tenancy Agreement. In any event, in the application for Revision pending before this Court, the issue whether there was breach of the terms and conditions of the Tenancy Agreement between the Applicants and the Respondent cannot be determineby this Court. It is the trial Tribunal which is better placed to deal with that issue, and hence the justification for the Applicants lodging the main application for revision on which the instant application is pegged. The submissions by the learned Counsels for the parties in support and rival to the other two conditions to be satisfied before an injunctive order is granted suffice for me to point out that, the very fact of existence of an unresolved dispute between the parties will call for its proper determination by the tribunal or court best placed to deal with such dispute. Page 8 of 10 The Applicants have no other homes of their own. They are still living in the rented NSSF premises with their families. The NSSF is a parastatal organization. It stands in a much better position, being of means with "deep pockets" compared with the Applicants. The loss by the Applicants and their families of a roof over their head thusconstitutes a realfounded fear and therefore amounts to an irreparable losswhich cannot be atoned by monetary compensation. Besides, the intended eviction will cause familyinconveniencesand coupled with the fear of being thrown out of the rented premises and onto the streets and thus being threatened with homelessness, it is sufficient reason for the grant of an injunctive relief. It is also not hard to envision thaton a balance, there will be greater hardship and mischief suffered by the Applicants from withholding the injunction than will be suffered by the Respondent from granting it, given that the Respondent is a parastatal organization dealing in among other things, real estate. The Respondent has the means to look for alternative accommodation for its staff than it is for the Applicants to find it easy to scout for alternative accommodation for their families. It is for the above reasons this Court finds that the Applicants have made a case for a grant of temporary injunction, The Applicant's application succeeds. It is hereby allowed. It is ordered as follows: (i) The Respondent and/or his agents are hereby restrained from evicting the Applicants from the houses located at Plot Numbers 39, 41 and 43, EX-RTC, BLOCK F, NYAKATO,MWANZA, pending hearing and Page 9 of 10 determination of the Revision Application No.05 of 2018 before this Court. (ii) Costs shall abide by the main Application for Revision. It is so ordered. SGD: R.V. MAKARAMBA JUDGE 20/04/2018 Date: 20/04/2018 Coram: Hon. Makaramba, J. Applicants: Mr. Andrew Luhigo, Advocate Respondent: Ms. TeresiaMponzi for ZainabuJuma B/C: S. Isangi Mr. Andrew Luhigo: My Lord, the matter is coming for ruling on application for injunction. We are ready to receive it. Ms. Teresia: My Lord, we are ready to receive the ruling. Court: Ruling delivered. R.V. MAKARAMBA JUDGE AT MWANZA 20/04/2018 Page 10 of 10