FATUMA THABIT SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 20933 OF 2024 (Arising From Land Case No. 21510 of 2024, Land Division) FATUMA THABIT TIBYAKUTENDWA (Personal Legal Representative of the Estate of the Late Thabit Abdallah Tibyakutendwa)....................................................................APPLICANT VERSUS ROBERT KARINAKO.......... .......................................................... 1ST RESPONDENT ABDALLAH THABIT TIBYAKUTENDWA.......................... 2nd RESPONDENT KISSA PORTIFAL KYEJO T/A PP MILLENNIUM SERVICERS......... 3rd RESPONDENT BOA BANK TANZANIA LIMITED........................................................................... 4thRESPOND HARVEST TANZANIA LIMITED............................................................................ 5™RESPOND ABDALLAH SALIM BATHAWABU.......................................................................... 6thRESPOND NAMPULA AUCTION MART COMPANY LIMITED.................................................. 7thRESPOND RULING 21/10/2024 to 13/12/2024 E.B. LUVANDA, J . The Applicant mentioned above is seeking for an order of temporary injunction to restrain the Fourth and Seventh Respondents named above or their assignee from evicting the Applicant and all beneficiaries of the estates of the late Thabit Abdallah Tibyakutendwa who are in occupation of the suit property to wit Plot No. 80 H Boko Temeke Area, Dar es Salaam, pending the hearing and determination of the main suit above captioned. i In the affidavit in support of the application, the Applicant deposed a series of events regarding ownership of the suit property by the late Thabit Abdallah Tibyakutendwa registered on 30/01/1989 as per title deed annexure JLC-1, (although could not say as to how and when was acquired); demise of the late Thabit Abdallah Tibyakutendwa on 30/08/1998; appointment of the First Respondent to administer his estate vide Probate Cause No. 125 of 2000 (letter of administration annexure JLC2-2) with eventuality of reinstating to Fatu Ausi, the said re-possession was confirmed by the Temeke Primary Court on 23/12/2003, for which the Applicant faulted the process having been done without her knowledge and unlawfully; revocation of the First respondent and appointment of the Applicant to administer the estate, also on 2/1/2012 the Temeke Primary Court declared the late Thabit Abdallah Tibyakutendwa as the lawful owner of the suit property, as per letters annexure JLC4; revision thereto by the District Court and subsequent revision by the Hight Court where quashed the order dated 23/12/2003 confirming repossession by the late Fatu Ausi along an order dated 2/1/2012 declaring the late Thabit Abdallah Tibyakutendwa as lawful owner, also quashed the order of the District Court thereby reinstated the Applicant as administratrix of the estate of the late Thabit Abdallah Tibyakutendwa; discovery of mortgage of the suit property fraudulently created by the Third Respondent aided by the First Respondent in securing loan from 2 the Fourth Respondent, although could not say as to fact leading to the said discovery and when, neither stated particulars of fraud; proceedings at the Tribunal which abated upon death of the claimant Fatu Ausi; default to pay loan leading to the auction of the suit property which the Applicant allege to have been unlawfully done with intend of depriving the rightful heirs; institution of Land Case No. 429 of 2016 to challenge the alleged illegality which was determined in favour of the Respondent and on appeal, the entire case was abrogated for want of locus standi on the part of the Applicant who instituted the suit at her personal capacity without pleading and attaching letters of administration. Hence this fresh battle. The Applicant pleaded that while the suit is pending she was served with fourteen days notice by the Seventh Respondent threatening to evict her from the suit property. That if the Seventh Respondent will execute the said eviction, she will suffer irreparable loss. In the counter affidavit, the Fourth Respondent stated that the Applicant had a full knowledge about existence of Probate Cause No. 125 of 2000 at Temeke Primary Court. That the purported revocation of the appointment of the First Respondent was overtaken by event as the First Respondent had already lawfully distributed the suit property to Fatu Ausi who was the original owner. 3 That upon transfer of title of the suit property to the late Fatu Ausi from the First Respondent as legal representative of the deceased, the suit property was legally mortgaged to the Fourth Respondent without any encumbrance. That upon default, auction was done in accordance with the procedure including advertisement through Nipashe Newspaper. He dispelled a fact that he issued eviction order to the Applicant. That the allegation that the Applicant will suffer irreparable loss was not substantiated, rather it is the Fourth Respondent who will suffer loss of capital, economic stagnation, financial loss, also loss of business if the application is granted. In the counter affidavit, by the Sixth Respondent stated that he learned about the sale of the suit when it was published in the Nipashe Newspaper dated 15/11/2013 showing that the suit property will be sold by way of public auction on 30/11/2013, where he participated in that public auction and was the highest bidder for a sum of TZS 100,000,000 which was accordingly paid and become the bonafide purchaser. That he transferred the suit property into his name. That he purchased the suit property without having any knowledge of defect from the mortgagor (Fourth Respondent). That the suit property was lawful disposed by the Fifth Respondent under instructions of the Fourth Respondent. That he is entitled to vacant possession of the suit property by virtue of being a bonafide purchaser for value. 4 In reply to the counter affidavit filed by the Sixth Respondent, the Applicant stated that sale by public auction was not conducted on explanation that emerged chaos on the material day. That the said transfer was null and void. That the Sixth Respondent purchased the suit property at his own peril. That a mortgage and subsequent sale was procured fraudulently and therefore no title could pass. It is to be noted that the Second Respondent supported the application, the First Respondent did not file a counter affidavit. The matter proceeded ex-parte against the Third, Fifth and Seventh Respondents. On 26/09/20241 commissioned for the preliminary objection to be argued along the merit of the application. Unfortunately only the submission in support for and opposition of the preliminary objection were filed. Submissions in support of the application were not filed. As such I will consider the facts stated in the affidavit in support of the chamber application, counter affidavit and reply thereto as prefaced above. Mulla, The Code of Civil Procedure, Sixteenth Edition, at page 3716, commented, 5 "In the matter for granting temporary injunctions, it is the duty of the court to take into consideration the affidavit and the relevant documents before it records a finding' In the affidavit in support of the application, the Applicant grounded that if the Respondents will execute the eviction, she will suffer irreparable loss. However, the Applicant was not elaborate as to the nature and extent of the alleged loss. Nor stated if the loss cannot be atoned by way of damage. Mulia (supra), at page 3718, commented, I bold a pertinent portion, 'Irreparable injury, however does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be material one, namely one that cannot be adequately compensated by way of damages, In cases where damages are ascertainable and there is no danger to the disputed property, the court should be reluctant to issue interim injunction and damages may be awarded' Herein, the Applicant is seeking preservatory orders to be protected against the intended eviction. There is no specific averments showing that the alleged eviction will eventually cause damage to the suit property. This ground alone defeat the argument of the Applicant that she will suffer irreparable loss. Again, in the main sit, the Applicant is fighting to challenge transactions which were done by the former administrator (First Respondent). In the affidavit, the 6 Applicant did not state any facts showing that the appointment or grant of letters of administration to the First Respondent was procured by fraud. Only she is complaining to have no knowledge or consented to it. In annexure JLC- 4, a substantive complaint lodged by the Applicant herein, where was seeking revocation of the letters of administration granted to the First Respondent, alleged there was injustice in administration of the estate of the late Thabit Abdallah Tibakutendwa. Rule 9(2) of The Primary Courts (Administration of Estates) Rules, G.N. 49 of 1971, provides, I bold the appropriate provision, Where any grant of administration is revoked- (a) any payments already made bona fide to the administrator shall be a valid discharge to the person making the same; (b) the person who has been acting as administrator shall forthwith surrender the document evidencing the grant and a full account of administration to the court; (c) the court may order the person who has been acting as administrator to pay such compensation for the loss or damage caused to the estate or any interest therein by his wilful acts or negligence as the court may determine; (d) the person who has been acting as administrator shall be entitled to retain and reimburse himself out of the assets of the estate for any reasonable payments made by i him bona fide in the course of the administration of the estate; or (e) the court may appoint any other person from amongst the heirs, executors or beneficiaries of the estate to be the administrator of the estate' Therefore, it can be said with certainty that the nature of the claim by the Applicant can be remedied by way of compensation for the alleged acts complained against the erstwhile administrator (First Respondent). In Christopher P. Chale vs Commercial Bank of Africa, Mise. Civil Application No. 635 of 2017, it was ruled that, ft is settled law and the learned Advocates from both sides agree that courts will only grant injunction if there is evidence that there will be irreparable loss which cannot be adequate compensated by award ofgeneral damages' Also, in Tasilo Joseph Mahuni vs Omary Othaman Daudi and Others, Mise. Land Application No. 209 of 2023, this Court ruled, I quote, 'On the second principle the applicant who claims to be on the brink of suffering irreparable loss must not only establish that they will suffer irreparable loss but are duty bound to demonstrate that, the kind of injury to be suffered cannot be atoned through monetary means' Again, at paragraph four from bottom front page of annexure JLC-4, the First Respondent was recorded to had said before the probate court, I quote, 8 'Kikako cha tatu kilifanyika pia kwa siku moja7 tarehe 23/12/2003. Katika kikao hicho, pamoja na mambo mengine Msimamizi aiieieza Mahakama kwamba, nyumba husika alishindwa kuigawa kwa warithi kwa sababu aiisema aiiyetoa nyumba (i.e. Fatu Ausi) kumpa Marehemu aiiichukua mwenyewe baada ya Marehemu kufariki. Katika kikao hiki watoto wa Marehemu waiieiekezwa wamdai Fatu Ausi kama wanayomadai yoyote baada ya kuwa nyumba imerejeshwa kwake kutoka miUki ya Marehemu baba yao' In a certificate of title of the suit property, forming part of annexure A to the counter affidavit filed by the Sixth Respondent, depict on 13/10/2003 at 1.00 pm the suit property was registered in the name of the First Respondent (legal personal representative of the late Thabit Abdallah Tibyakutendwa) and on the very same date and time to wit 13/10/2003 at 1.00 pm the suit property was registered in the name of Fatu Ausi with eventuality of registering a mortgage in favour of the Fourth Respondent on 20/08/2010. In my undertaking above, I was trying to discern as to whether there is arguable case on merit. Regard being, facts showing if there is any possibility of prima- facie case were not specifically pleaded. In the affidavit only scattered facts were pleaded here and there faulting the appointment of the First Respondent and re-possession of the suit house by Fatu Ausi as being taken without the Applicant's knowledge, consent, unlawfully registered in the name of Fatu Ausi. 9 Also faulted the mortgage of the suit property to have been fraudulently created by the Third Respondent aided by the First Respondent. In the counter affidavit by the Fourth Respondent at paragraph ten, stated that the suit property was mortgaged by Fatu Ausi (deceased) as collateral to a credit facility advanced to Fatu Ausi by the Fourth Respondent. Mulla (supra), at page 3717, the author said, I bold a pertinent portion, "While deciding the application of under O 39, rr land 2, and to form prima facie view the court has to see the evidence available on the record. Merely pleading does not make a strong prima facie case. The case must be established with sufficient material or proved by affidavit' Again, the Applicant did not plead any facts regarding balance of convenience. Meaning that even the three conditions for grant of inunction were not met. Now, the law is settled that for the Court to grant of temporary injunction, the three conditions enunciated by Atilio vs Mbowe (supra), must be met cumulatively. Satisfying one or two out of the three, the application will automatically be disallowed. A case of Bingele Buhwahwa and Twelve Others vs Halmashauri ya Mji geita, Mise. Land Application No. 2771 of 2024, HC Geita, this Court speaking through Mwakapeje, J had this to say, io 'It is trite law that to secure an order for an injunction, one has to establish all three co-existing conditions. This position has been stipulated in the case of Tanzania Breweries Limited versus Kibo Breweries Limited and Another (1989) EA 341 and Christopher P. Chafe vs Commercial bank ofAfrica, Mise. Civil Application No. 635 of 2017. Specifically, in the case of Christopher P. Chaie vs Commercial Bank ofAfrica, the Court ofAppeal (sic) articulated that: "...it is aiso the law that the conditions set out must all be met, and some meeting one or two of the conditions will not be sufficient for the purpose of the Court exercising its discretion to grant an injunction" In passing, Mr. Victor Mwakimi learned Counsel for Fourth Respondent raised a preliminary objection that the Applicant's affidavit in support of the application ins incurably defective for want of a proper verification clause. He submitted that at the verification clause, only paragraphs one to sixteenth, inclusively were dully verified, leaving paragraphs seventeen and eighteenth unverified, citing Between Nasreen Hassanali Versus Aga Khan Health Services Tanzania, Revision Application No. 84 Of 2021, High Court of Tanzania, Labour Division, Dar es Salaam, page ten, this Court had this to say; "It is imperative for an affidavit not only to be verified but to be verified properly as if it is not verified properly, it cannot be admitted in a case as evidence to prove what is intended to be proved before the court. Therefore, although Order XIX Rule 3 of the CPC does not provide for how the affidavit is supposed to be verified and Order VI Rule 15 of the CPC does not deal with verification of an affidavit as it deals with verification of pleadings but an affidavit to be filed in the court is required to be verified in the same manner as pleadings are required to be verified." In reply, Mr. Philemon Mutakyamirwa learned Counsel for Applicant concede to the omission. However, he took a view that the omission is not fatal. Therefore, suggested of paragraphs seventeen and eighteen in the affidavit to can be expunged or overlooked, for an argument that they are consequential paragraphs, citing the case of Anna Makanga Versus Grace Woiso the Court referring in Phantom Modern Transport (1985) LTD and D.T. Dobie (TANZANIA) LTD, Civil Reference No. 21 of 2006, CAT, where it observed that, 'Where defects in an affidavit are inconsequential, those offensive paragraphs can be expunged or overlooked, leaving the substantive parts ofit intact so that the Court can proceed to act on it' On my part, I go along the argument of the learned Counsel for Applicant that the omission is not fatal. The effects is for expungements of the offensive paragraphs seventeen and eighteen, and is accordingly ruled. This verdict will 12 not affect my findings above, for reason that nowhere the expunged paragraphs seventeen and eighteen were referred in my findings above. For reasons stated above, the merit of the application cannot sail through. The application is refused. No order for costs. Ruling delivered in the presence of the Second Respondent, Ms. Jeddnes Jason learned Counsel for learned Counsel for Applicant, Mr. Mashiku Sabasaba learned Advocate for First Respondent, Mr. Mwang'enza Mapembe learned 13