20140313 TZHC Dar es Salaam

· IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 123 OF 2013 MISC. COMMERCIAL APPLICATION NO. 123 OF 2013 [Arising from Corrrnercial Case No. 138 of 2013] FER ECK SAFAR IS LIM ITED· .... ~· .............. •·•· .. APPL ICANT

VERSUS

THE DISTRICT EXECUTIVE DIRECTOR MEATU DISTRICT COUNCIL ........................... RESPONDENT

RULING (13/02/2014 &13.03.

2014) Nyangarika, J Alongside with a plaint, the applicant has also filed an application under. certificate of urgency seeking interim orders restraining-the respondent, its agents and whoever acts under its authority from entering 'Makao Zabuko Wildlife Manag~ment Area' , preventing the applicant to construct camps and/or demo I ish the camp thereat pending determination of the suit. 1 -.J Upon being served, the respondent and with Ieave of this court, filed both, counter affidavit in opposition and raised a notice of pre I iminary objection that:- "This Honourable Court has a jurisdiction to hear and determine the application and therefore it should be dismissed with costs". This ruling 1s in respect of the notice of pre I iminary objection filed. The Objection was argued by way of written submissions as filed by both counsels as scheduled by this court. But, in order to have a good f Iow, I sha 11, first, canvass on the arguments raised by counse Is but before I do so, I sha 11 record how the parties were represented in this matter. The app I i cant enjoyed the legal services of Mabere Nyaucho Marando, learned counsel and the respondent was represented by the Municipal Solicitor one, Mr. Mashauri Msui. I do not wish to repeat in this ruling what has been submitted by the learned counsels so as to make this ruling unnecessary longer. But, briefly, the gist of the objection as

raised by the 2 respondent' s so I i c i tor is that the app I i cation as we 11 as the suit are both founded on land matters. The so I i c i tor contended that, fir st, this matter is pegged on ·. failure by the applicant to obtain a building permit for erecting permanent structures at the site of "Makao Wildlife Management area" , which is a 11 eged to be within the respondents p Ianni ng area governed by TOWN PLANNING BUILDINGS RULES. Second, that the instant dispute has no Commerc i a I Significance within the meaning and categories of commercial CASES AS PROVIDED UNDER RULE 5 OF THE HI GH COURT (COMMERC I AL DIV I S I ON) PROCEDURE RULES, 2012. The Learned solicitor invited me to dismiss the application together with the suit with costs for lack of jurisdiction. · On another dimension, the app Ii cant' s counse I Is against the objection and has submitted that the objection has been misconceived because this court has jurisdiction under SECTION 6B(e) AND ORDER OF 37 RULE 2(1) OF CIVIL PROCEDURE CODE, CAP. 33 RE 2002, to entertain this app Ii cation as we 11 as the pending suit. 3 . The app Ii cant' s counse I maintains, that, first, the order for interim injunction sought by app I i cant is not pegged on a suit · founded on land, but only seeks this court intervention to restrain the respondent' s interference, impediment and disruption of the applicant' s business

activities in the hunting block at "Makao Zabuko Wi Id I i fe Management- Area" . Further, the app I i cant' s counsel a 11 eges that the app Ii cant have invested a lot in that area for more than USD 500,000/= in respect of the five (5) years investment agreement entered for the hunting activities in the area in dispute. Therefore, counse I for the app I i cant contends that the business activities conducted in the area does not make the same to be a land matter, but just hunting business activities which fal Is under RULE 5 OF GN. NO. 250 OF 2012. The advocate made references to the cases of EAST AFRICAN MINES . LIMITED VERSUS ELIAS KAPULA, MSANJA MASUGULE AND 32 OTHERS, COMMERCIAL COURT MANUAL AND DHOW MERCANT ILE (EA) LIM ITED VERSUS PSRC, COMMERCIAL CASE NO. 42 OF 2003 AND NEW PUT LIM I TED AND 2 4 . OTHERS VERSUS DZEKO SKENDEROVIC AND 4 OTHERS COMMERCIAL CASE NO. 35A FO 2002 (HC) (UNREPORTED). The applicant' s counsel argued further that this court has jurisdicti.on to hear, determine and grant temporary injunction to restrain the injury of the business rights and activities, which injuries are being occasioned by the respondent in the area. In order to decide the objection correctly I need to refresh my thought on similar objections raised in the cases of MANGALAS TAICHURA AND OTHERS LAVENDER VILLA LIMITED AND OTHERS, COMMERCIAL CASE NO. 197 OF 2002 (HG) (UNREPORTED),

BRITANIA BISCUITS LIMITED VERSUS NBC LIMITED AND 3 OTHERS (HC) (UNREPORTED). In these cases, the court has he Id that the LAND ACT did not repea I the estab I i shment of the Commerc i a I Division, no inhibits its jurisdiction. Further that, it was he Id that any I it i gat ion, whose cause of action accrued from mortgage transaction or Commercial Contract or activity, regardless of· its aftermath to land property/ real property, is not necessary a matter that fal Is within ••the jurisdiction of the LAND DIVISION OF THE HIGH COURT, and that it 5 . has to be dea It by the COMMERCIAL DIVIS ION OF THE HIGH COURT unless the transaction was on conveyance. In MICHAEL MWAILUPE VERSUS CRDB BANK LIMITED AND OTHERS LAND CASE NO. 7 o·F 2003 (HC) (UNREPORTED) This court sitting with E. A. Ki leo, J (as she then was) observed as fol lows:- "lt may be possible that a matter may sometimes consists of both commerc i a I and Iand e Iements. Si nee the main reasons behind the estab I i shment of the two spec ia I ized Division i e. The Commerc i a I Court and the Land Division of the High Court was to expedite dispute settlement, I consider that the interest of justice would be best served, if the law would make provisions of an option for a party who has a matter. comprising of both commerc i a I and Iand elements to either file it in the Land Division of the High Court or the Commerc i a I of

the High Court" . There is no wonder therefore that in BRAND INTERNATIONAL LIMITED VERSUS SH IRIKA LA USAF IRI DAR ES SALAAM (UDA) , IN COMMERCIAL CASE NO. 68 OF 2011, [HC] (COMMERCIAL COURT) (UNREPORTED), I have observed that a lease is captured under the definition of Commerce case as it has Commercial Trapping. 6 . As both counsels are wel I aware the categories of cases considered to be a Commercial nature are not exhaustive as provided for under RULE 2 (A) OF THE HI GH 'coURT REG I STR I ES (AMENDMENT) RULES, 1999 GN. NO. 141 OF 1999. Therefore, in the interpretation of the question of Commerc i a I significance regarding the hunting business one has to observe the ejusdem generis cannon of interpretation and wi 11 find that the hunting business now in dispute at " Makao Wi Id I i fe Management Area" has a commercial trapping within the categories I isted under RULE 2 (A) OF THE HIGH COURT AMENDMENT RULES, 1999, GN. NO. 141 OF 1999. With the above guidance and coming back to the objection raised, it is obvious I y that the centre of the controversy arises from some structures or rather the so cal led 'bui I dings' erected in "Makao Wi Id I i fe Management Area" for purposes of the hunting business. The issue regarding the hunting p I ots has not been disputed by both sides and therefore, geographically, it is true that the conservation area is within Meatu District in

Shinyanga Region. 7 Now, the thorniest issues here is whether that area now in dispute is a planned area within the management Meatu District Council under the TOWN PLANNING RULES, which require bui Iding permits for the construction of any structure therein or is within the management of the Wildlife Management Area. I am we 11 aware that in the estab I i shment of Wi Id Ii fe Management Area, under SECTION 31 (7) OF THE WILDLIFE CONSERVATION ACT, 2008, I i ke the one at hand, the representative of the District and the District Counci I are involved during the process. After the establishment, a general management plan for each Wildlife protected area is put in place, where the respondent' s role is that of just advisory roles. Mind you, Wi Id I i fe Management area for purposes of conservation may be estab I i shed (a) outside of core protected area (b) area used by local community members and (c) within the vi I !age land. Therefore, it is not necessary that Wildlife Management area wi I.I always fa! Is within the planned area in the district, or Municipal Counci I subjected to town planning rules. 8 . . Therefore whether" Makao Wildlife Management Area" is within the Meatu District Planning area or not, is an issue to be determined during trial upon receiving evidence from both sides. The objection is misconceived as it does not raise a pure point of Iaw as required s i nee

the issue needs to be proved one way or another and therefore cannot be relied up to dispose of this suit [MULLA, CODE OF CIVIL PROCEDURE, 8rH EDITION VOL. 1 PAGE 221, BI KUBWA I SSA ALL I VERSUS SULT AN MOHAMED ZAHARAN ( 1997) TLR 295 (HC) AND MUKISA BUSCUIT MANUFACTURING COMPANY LIMITED VERSUS WEST END DISTRIBUTORS LIMITED (1969) EA 696, foilowed]. In upshot and for the reasons given, the pre I iminary objection crumb Ies. It is hereby dismissed with costs. ,,.__ V ~ ----· pt--t - . (_ /' K.M. Nyangarika Judge 13/03/2014 Words 1457 9