CIVIL REVIEW NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM CIVIL REVIEW NO. 000001092 OF 2025 CASE REFERENCE NO. 202501161000001092 FSM INVESTMENT LIMITED........................................................... 1st APPLICANT RIO DEVELOPMENT LIMITED........................................................ 2nd APPLICANT VERSUS ITALY SHOE LIMITED................................................................................................ 1stRESPONDENT REGISTRAR OF TITLES................................................................... 2nd RESPONDENT COMMISIONER FOR LANDS, KIGAMBONI MUNICIPAL COUNCI...3RD RESPONDENT THE ATTORNEY GENERAL............................................................... 4th RESPONDENT RULING 20 & 21/02/2025 GWAE, J In this court, the first respondent successfully filed an application for Mareva injunction vide Misc. Land Application No. 27233 of 2024. After grant of the application on 13th December 2024, the applicants herein have now knocked the doors of the Court seeking review of the ruling and order made thereof. i The applicants who were the first and second respondents, in the 1st respondent's application, have preferred this application under provisions of Order XLII Rule 1 (1) (a) (b), 3 (a) and (b) and 3 and section 95 of the Civil Procedure Code Cap 33, Revised Edition, 2019 (CPC). In their memorandum of review contain the following grounds are; 1. That, the Court ruling and order made thereof have errors apparent on the face of the record in holding or making order that the temporary is issued against the applicants from doing construction, any erection of structure, opening and operating petrol station upon disputed landed property within residential License No. 002145 Land No. TMK/KNG/TING31/24 located at Kigamboni Area, Temeke District pending determination of a suit to be filed by the first 1st respondent after expiry 90 days' notice. Such errors as demonstrated as follows:- i. That, such ruling and order contain illegality and irrationality for the reason the judge exceeded his power on Mareva Injunction by making temporary order pending institution of main suit until when such suit is finally determined ii. That, the Court has no power to make injunctive orders or any reliefs pending determination of none -existing suit since the court's power on mareva injunction is limited to the expiry of the 90 Days' Notice 2 2. That, the application was not heard on merit as the counter affidavits filed were not considered and that there was no notice of hearing that was issued to the applicant. The applicants are therefore praying for the ruling and the orders thereof be set aside and or lifted accordingly and costs of the application be provided for. On 20th February 2024 when this application was called on for hearing virtually, Mr. Ngassa Ganja Mboje, learned advocate appeared for both applicants whereas Mr. Emmanuel Kinabo, learned advocate, virtually appeared for the first respondent. However, other respondents did not enter their appearance despite the fact that, they were duly served. Henceforth ex-parte hearing proceeded against them. Supporting the application, Mr. Ngassa argued that, the error in the ruling of the Court and its drawn order is so ostensive which does not require close scrutiny since the Court exceeded its power as it granted injunctive order to the extent of pending determination of the intended main suit instead of the expiry of the 90 Days' Notice. On the other hand, Mr. Kinabo had not resisted the application as he argued that the Court wrongly granted the application by ordering that, 3 pending determination of the suit to be lodged like what was wrongly sought in the chamber summons. The issue before the court is, whether the ruling and the order made thereof contain errors apparent, subject of the sought review. Upon my due examination of the ruling and its drawn order issued 13th December 2024, it is glaring that the Court erroneously and apparently exceeded its power in is issuing the sought temporary injunction to the extent of hearing and determination of the intended main suit, yet to be instituted by then. The drawn order read and I quote; "The First and second respondents, their servants, agents and any other person acting under their instructions are restrained from constructing or continuing with any construction or any erection or completion of any structure, or opening and operating a petrol station upon the disputed land; being land described as Plot No. 251 Block A, Kisiwani area within Kigamboni District and all that land held under Residential License No. 002145Land No. TMK/ KGN/TGN/ TNG31/24, located at Kigamboni Area, Temeke District pending determination of a suit to be filed against the Respondents after expiry of the 90 days' Statutory Notice to sue the 3rd to and 6th respondents herein." 4 According to the quoted excerpt from the impugned order, it goes without saying that, the sought injunctive order would not go beyond expiry or lapse of the 90 Days' Notice issued to the 2nd to 5th respondents herein. In its endeavors to explore the applicability of an application for review of decision or order, the Court of Appeal in Chandrakant Joshubhai Patel vs. Republic (2004) TLR 218 stated: (i) The Court ofAppeal has inherentjurisdiction to review its decision and it will do so in any of the following circumstances (which are not necessarily exhaustive): (a) Where the decision was obtained by fraud. (b) Where a party was wrongly deprived of the opportunity to be heard; and where there is a manifest error on the record, which must be obvious and self-evident, and which resulted hi a miscarriage ofjustice. (c) Where there is a manifest error on the record, which must be obvious and self-evident, and which resulted in a miscarriage of justice, Guided by the above judicial precedent and as rightly moved under Order XLIII of the CPC, I find this application is grantable since the error is so apparent on the face of the record namely; the court had no jurisdiction to issue an injunctive order until the intended suit is heard and determined. 5 Its power was limited upon expiry of the 90 Days' Statutory Notice and not otherwise. However, the errors which is apparent on the face of record of the ruling and order made thereof, as complained by the applicants, has its own genesis that is the 1st respondent's application for Mareva Injunction as appearing in the chamber summons was indicative that the injunction sought was to be valid pending determination of the suit to be lodged after expiry of the 90 Days Statutory Notice to sue the 3rd to 5th respondent herein, which was wrong. Hence, the word "pending determination of the suit to be filed" ought to be deleted. I have also looked at the complaint that, the applicants were not availed an opportunity to be heard since were not served with the notice of hearing. Having sensibly examined the court record, I have observed that, the complaint on the ground two for the sought review, is an afterthought as the applicant's counsel, Mr. Ngassa Mboje was present on the court's consecutive sessions held on 6th November 2024 and 25th day of November 2024. Therefore, the applicants' advocate was full aware of the date fixed for hearing of either his intended preliminary objection on points of law, which he said that, he would canvass by issuing a notice of PO on the 6 following session or hearing of the application in the event the PO was not preferred. Hence, according to the court's record, this type of complainant is not supported by any piece of evidence. The second ground for review is thus not maintainable. Having discussed as herein, I invoke provisions of Order XLII Rule 1 (1) (a) (b), 3 (a) and (b) and 3 and section 95 of the CPC and order that, the respondents in the first respondent's Misc. Application No. 27233 of 2024 their servants, agents and any other person acting under their instructions, are restrained from constructing or continuing with any construction or any erection or completion of any structure, or opening and operating a petrol station upon the disputed land; being land described as Plot No. 251 Block A, Kisiwani area within Kigamboni District and all that land held under Residential License No. 002145 Land No. TMK/KGN/TGN/TNG31/24, located at Kigamboni Area, Temeke District pending expiry of 90 days Statutory Notice issued to the third to sixth respondents in the said Application (Misc. Land Application No. 27233 of 2024) now the third to fifth respondents herein. Thus, the ruling in Misc. Land Application No. 27233 of 2024 and its drawn order is rectified to that extent. This order shall be read together with 7 the court's ruling and its drawn order in respect of Misc. Land Application No. 27233. No order as to costs is made. It is so ordered DATED at DAR ES SALAAM this 21st day of February 2025 8