scanned 14051 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM (Arising from Land Case No. 11990 of2024 before Hemed, J.) MISC. LAND CASE APPLICATION NO. 14051 OF 2024 FRECO EQUIPMENT SUPPLIES LTD (Formely known as FRECO GENERAL BUSINESS AND CONSTRUCTION COMPANY LTD............................................. APPLICANT VERSUS EMMANUEL J. MUTABOYERWA......................................1st RESPONDENT BILO STAR DEBT COLLECTOR CO. LTD......................... 2nd RESPONDENT RULING 11th & 22th September, 2024 L, HEMED, J. This Application has been brought under sections 68 (c) & (e), 95 and order XXXVIII of Rule 2(1) of the Civil Procedure Code, [Cap. 33 R.E 2019]. The Applicant herein seeks for the following orders against the respondents herein: - "1. The Honourable Court may be pleased to issue the order of temporary injunction to restrain the respondents from evicting the applicant from Plot No. 181, Mbezi i Beach area, Kinondoni Municipality, Dar es Salaam pending the hearing and determination of the main case. 2. The Honorable court may be pleased to order the respondents to open the main gate and doors of the suit premises dosed by the 2nd respondents so as to allow access to the Applicant to enter in the office pending hearing and determination of the main case. 3. Costs to follow the event. 4. Any or further relief(s) this Honourable court shall deem fit equitable to grant." The Application has been supported by the affidavit of one Fredrick Phinias Malima, the director of the Applicant. The respondents resisted the application hence hearing of it which was done by way of written submissions. Mr. Yudathade Paul, advocate, acted for the Applicant while the respondents enjoyed the legal service of Mr. Thomas Brash, learned advocate. The background pertaining to this application is that, on 1st September, 2017 the Applicant and the 1st Respondent entered into lease agreement in respect to the property on Plot No. 181, Mbezi Beach area, Kinondoni Municipality, for the period of ten years renewable. It was also agreed to 2 review rent after five (5) years from the date of execution of the Lease Agreement. The agreed monthly rent which the Applicant was required to pay to the 1st Respondent was USD 1,600 plus withholding tax payable yearly. Due to covid 19 outbreak, the parties, on the 22nd December, 2020 signed an addendum to the lease agreement where parties varied the monthly rent to be TZS 2,000,000/= payable in every six months in advance. In 2023, the parties also signed another addendum to the lease agreement to review monthly rent and agreed the same to be TZS 2,500,000/= payable six months in advance. The Applicant averred that, based on the 2nd addendum, in September 2023, she paid the first Respondent the amount of TZS 12,000,000/= as rent in advance remain the balance of TZS 3,000,000/= to make the total of TZS 15,000,000/=, the rent of six months in advance which was for the period of September 2023 up to February 2024. On 26th January 2024 the 1st Respondent through Rwebangira Eustace & Co. Advocates served the Applicant with the notice to terminate the lease agreement. In April, 2024 the 2nd Respondent acting under 3 instruction of the 1st Respondent evicted the Applicant and locked the main gate and the doors of the suit premises. In the affidavit that support the application, it has been stated that on 2nd May 2024, the applicant paid the amount of TZS 13,000,000/= to the 1st Respondent as rent to remedy the situation, but todate the 1st Respondent refused to open the suit premises despite several communications. I have gone through the rival submissions and in determining whether the application is mentorous, I will be guided by the conditions which were propounded in Atilio vs. Mbowe [1969] HCD 284. In the said case, Georges, CJ. stated that before granting the order of injunction the court must be satisfied that: - i. There is a serious question to be tried on the facts alleged, and the probability that the plaintiff will be entitled to the relief prayed. ii. The Applicant stands to suffer irreparable loss requiring the courts intervention before the Applicants legal rights is established; 4 iii. That on the balance of convenience, there will be greater hardship by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting it. The question for determination is whether the material provided by the Applicant have sufficiently established existence of the three conditions above. It has to be noted that the facts constituting the three conditions must be stated in the affidavit supporting the application. The submissions should only amplify and support what is averred in the affidavit. I have read the affidavit of one Fredrick Phinias Malima purporting to support the application. I only found it giving narration on how the Applicant and the 1st Respondent entered into the Lease Agreement. The affidavit also states how the rent was reviewed twice through addendum, the notice of termination of the contract and how the applicant was evicted from the demised premises. In all 13 paragraphs, the Applicant has not stated facts which establish existence of triable issue or primafacie case. There are also no facts establishing irreparable loss the Applicant may suffer in case the court opts to withhold the injunctive orders sought. 5 This being the case, I do not find it worth to be granted. The Application has not met the conditions stated in Atilio vs. Mbowe (supra). I hereby dismiss the entire application with no order as to costs. Order accordingly. 6