emannuel lameck kihayile three others vs tanzania building agency another 2022 tzhc 15364 16 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO.100 OF 2022 (Originating from the Civil Case No.41 of 2022) EMANNUEL LAMECK KIHAYILE……………………….…..……..……. 1st APPLICANT DANIEL AKIM DANIEL…………………………………….…..……..…. 2nd APPLICANT DAWSON HASSAN MONGI …………………………..……..……….…. 3rd APPLICANT REMMY GODBLESS SWAI…………………………………..……..……. 4th APPLICANT VERSUS TANZANIA BUILDING AGENCY…….………………….……………..1st RESPONDENT ATTORNEY GENERAL…………………………………….…………….2nd RESPONDENT RULING 1st November & 16th December, 2022. ITEMBA, J This Application is brought under Order XXXVII Rule 2 (1) and Sections 68(e) and 95 of the Civil Procedure Code Cap 33 R.E. 2019. The Applicants are seeking from this court the following orders: 1. A temporary injunction order restraining the respondent from evicting the applicants on the houses no. 138, 116, 140 and 114 located at Ghana street within the Mwanza City Council pending hearing of the main case. 2. A court’s waiver of applicants to serve 90 days’ notice of intention to sue the respondents. 1 3. The cost of this application be in the cause. 4. The court be pleased to grant such other orders as it may deem fit, proper and just in the circumstances. It should be noted that on the 3rd of October, 2022; this court had issued an ex parte order for maintenance of status quo pending hearing and determination of this application inter parte. The grounds for application are set out in the joint affidavit sworn by all the applicants and are briefly that; the 1st, 2nd, 3rd and 4th applicants are tenants in houses numbers 138, 116, 140 and 114 respectively, located at Ghana street within Mwanza Municipality. The said houses are owned by the Tanzania Building Agency (TBA), 1st respondent. The applicants aver that, they have entered tenancy agreement with the 1st respondent at different times. Under the said agreement, the terms were that the applicants will stay in the said houses up to the year 2023 and all the applicants have been executing their contractual obligation including paying rent. The applicants explain further that, suddenly, on 17th August 2022 they were issued with a 30 days’ notice to vacate the said houses before 19th September 2022. They complain that they were not given a reasonable time to prepare themselves to move out and that some of their 2 contracts are still valid. The applicants also averred that they have filed a main case to challenge the said notice and breach of the tenancy contract. They added that if they vacate the said houses, they will suffer more loss than the respondents. That, they have already paid part of the rent as per the contract and the respondent is not indicating any signs of refunding the applicants’ said rent. Arguing in support of the application Mr. Malikisa Sakila learned counsel, submitted that the applicants are praying for the court order that they should stay in the house pending hearing of the main suit and for waiver the 90 days’ notice requirement as it could not be complied with before the applicants were evicted. The learned counsel stated that the respondents have nowhere to go within 30 days. He added that only the 1st applicant has a written contract but the remaining applicants have oral contracts because they did not renew their previous written contracts. The respondents were represented by Ms. Sabina Yongo learned state attorney, who strongly opposed the application. The respondents have filed their joint counter affidavit which is sworn by Mr.Moses Urio, the Manager at TBA. It is asserted in the counter affidavit that; all the 3 applicants had tenancy agreement with the 1st respondent. That; the 1st applicant’s contract will expire on 30/6/2023, the 2nd and 4th applicants’ contracts had already expired since 30/6/2020 and the 3rd applicant’s contract had expired since 30/6/2018. He added that the notice issued to the applicants is based on the terms of contract with the 1st applicant and that the aim of issuing a notice is to allow development of Plot no. 490 Block KV Ghana street in accordance with the Master Plan of Mwanza city council. She insisted that the city council has directed that the buildings should be modern and all the old buildings which did not comply with space planning and standard should be demolished. And; if the applicants won’t vacate the premises, they will interfere with the city master plan. She maintained that the 1st respondent has followed the procedures of issuing a reasonable notice. In respect of the loss which the applicant might face, the 1st respondent explained that based on the applicant’s contracts, the rent was paid on monthly basis and there is no tenant who has paid a rent of more than one month. 4 Ms. Yongo submitted that, the court should allow the application because the criteria for the court to issue injunction which are provided for in the case of Atilio v Mbowe 1969 HCD 284, are not met. She stated that the main case filed by the applicants has no chances of succeeding as it is incompetent and has been filed prematurely without issuance of 90 days’ notice to the respondents. As for the irreparable loss, she stated that the applicant will not suffer any loss as they had ample time to find an alternative accommodation. In the contrary, the 1st respondent is the one who will suffer loss because if renovation and development will not be done, they will not be able to collect rent out of the renovated buildings and the 1st respondent will be working against the city master plan. Upon being prompted by the court, the counsel for the applicant suggested that a period of 6 months will be sufficient for the applicants to find alternative accommodation. Having considering the grounds in support of the application, the question is whether the conditions for granting temporary injunction has been met. 5 Order XXXVII Rule 2 (1) of the Civil Procedure Code which is the enabling provision cited by the applicants provides as follows: 2(1) “In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right: Provided that, no application shall be made for a temporary injunction where the defendant is the Attorney General but, in such case, the plaintiff may apply to the court for an order declaratory of the rights of the parties.” emphasis supplied. From the above quoted provisions of the law, it can be reasoned that the purpose of the temporary injunction order is to preserve the status quo of the suit property until the parties' rights in the subject matter are determined in the main suit. The conditions to be satisfied by a party seeking temporary injunctive order have been discussed in several cases 6 based mainly on Order XXXVII Rule 1 of the CPC including the celebrated case of Atilio Vs. Mbowe (1969) HCD 284 which laid down the conditions for a grant of an order of a temporary injunction to be; i. The applicant must show a prima facie case with a probability of success. ii. The applicant is likely to suffer irreparable injury. iii. When the court is in doubt, it will decide the application based on the balance of convenience. I have examined the pleadings and the submissions by counsels for both parties and I shall proceed to apply the facts adduced to the application and scrutiny to see whether the requirements under order XXXVII rule 2(1) of the CPC have been met. As hinted earlier, it is only the 1st applicant who has a written contract while the 2nd to 4th applicants only had oral contracts. Starting with the 1st applicant, a quick perusal on the 1st applicant’s contract marked ‘exhibit 1’, shows under item 6.0, there is a provision for the manner in which the said contract will be terminated. Item 6.0 states that either party is at liberty to terminate the contract upon issuance of a 30- calendar day’s written notice to the other party. I would say that, as a 7 party to the contract, the 1st applicant ought to have known these terms and ought to have prepared themselves in the event they are issued with a notice of termination. There is nothing suggesting that a notice should be of 6 months and therefore, to hold otherwise will be going against the terms and conditions of the contract between the parties while the duty of the court is limited to interpreting and enforcing agreed terms and conditions. Therefore, I do not see any breach of contract on the part of the 1st respondent. As for the 2nd to 4th applicants, it is undisputed that they do not have written contracts. However, all applicants were still paying rent. It is not clarified how the 2nd to 4th applicants moved from written to oral contracts once their former contracts expired. Nonetheless, I would say that, the fact that their contracts had expired, the 2nd to 4th applicants did not have the right to stay in the 1st respondent’s premises in the first place. In the alternative, even if we opt to rely on the terms stated in their expired contracts, I have gone through the 2nd to 4th applicant’s contracts supplied by the respondents, they have similar terms with the 1st applicant and the termination of contact was supposed to be done after a 30 days’ 8 notice, therefore, the 2nd to 4th applicants cannot claim to have been given a short notice and require for 6 months to look for alternative accommodation while the contract is clear that the notice will be of 30 calendar days. Being guided by the principal laid down in Atilio Versus Mbowe's case (supra) there are two issues which have been established as follows: one; there is no evidence suggesting breach of contract by the respondent, the applicants ought to have known the terms of contracts that in the event of termination, the notice of 30 days will be issued. Therefore, I do not see a prima facie case established by the applicants. two; there is no evidence that the applicants have paid any advance rent, based on their contracts, the advance rent to the respondent, was not an even an option. If that is not enough, the applicants did not even substantiate the said amount of advance rent, if any. Under these circumstances, I do not see any irreparable loss which will be incurred by the applicants. All the time which the applicants stayed at the 1st respondent’s premises, they knew that it was a rental property and one day they will 9 eventually leave. Further, it is not possible to adequately quantify the loss or damage that would be suffered if any. At this stage, I am satisfied that the applicants have not demonstrated sufficiently that they would suffer irreparable injury if the injunction order is not granted. In the finality, the legal rights of the parties in this case require that temporary injunction be denied. Consequently, I decline to grant the temporary injunction sought by the applicants. Accordingly, the application is dismissed with costs. It is so ordered. DATED at MWANZA this 16th day of December, 2022. 10 Court: Ruling delivered in chamber presence of 1st, 2nd and 3rd applicants and Ms.Sabina Yongo State Attorney for the Republic. Right of appeal has explained. L. J. ITEMBA JUDGE 16.12.2022 11