Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAM MISC. LAND APPLICATION CASE NO. 14547 OF 2024 (C/F Land Case No. 1431 of 2024 Before Hon. Sarah Mwaipopo) GABRIEL J. MTITU..................................................................... APPLICANT

VERSUS NATHUMAL PITOOMAL GUNAMAL (SAJNANI)............... 1st RESPONDENT FOSTERS AND COMPANY LIMITED............................... 2nd RESPONDENT

RULING Date of last Order: 17/09/2024 Date of Ruling: 30/09/2024 LALTAIKA, J. The applicant, Gabriel 3. Mtitu, has moved this court for a temporary injunction pending the hearing and determination of the main suit, Land Case No. 14319 of 2024, where he seeks to restrain the respondents, their agents, and assignees from selling or evicting him from the suit premises. The application is supported by an affidavit and opposed by a counter-affidavit from the respondents. The Applicant herein GABRIEL J. MTITU has moved this Court under section...for the following orders: Page 1 of 14 When the application was called on for mention, the Applicant appeared through Ms. Aziza Msangi, learned Advocate. The Respondents, on the other hand, enjoyed the legal services of Mr. Jerome Msemwa assisted by Mr. Magusu Mugoka, learned Advocates. Ms. Msangi prayed for an extension of time to file her reply citing delayed service. There being no objection from the Respondent, the scheduled order hitherto agreed upon was amended. The next part of this Ruling is a summary of submissions by both parties. Noteworthy, court records indicate that the drafter of the Applicant's submissions is an Arusha-based Advocate Mohammodou Evarist Majura. This probably means that ICT has enabled outsourcing services of a lawyer irrespective of his or her physical location subject only to being in good standing as per

rules and regulations governing legal practice in Tanzania Mainland. Mr. Majura stated that the application before the Court was to seek orders for a temporary injunction pending the hearing and determination of the main suit between the parties, specifically Land Case No. 14319 of 2024 before Hon. Judge Mwaipopo, which was scheduled for mention on the 29th of July 2024. He requested that the Applicant's Affidavit filed in support of the application be included in his submission. Page 2 of 14 He noted that it was now established that the grant of a temporary injunction was at the discretion of the Court, a discretion that needed to be exercised judiciously. He explained that the criteria for granting an order of temporary injunction were formulated in the case of Atilio v. Mbowe (1969) HCD 284, which included three key points: first, there must be a serious question to be tried on the alleged facts, and a probability that the plaintiff would be entitled to the reliefs prayed; second, the temporary injunction sought must be necessary in order to prevent irreparable injury to the plaintiff while the main case was still pending; and third, on balance, there would be greater hardship and mischief suffered by the plaintiff from withholding the injunction than would be suffered by the defendant from granting it. To facilitate the Court's scrutiny on whether the application met the

stated criteria, Mr. Majura submitted each criterion for consideration. Regarding the first criterion, he referred to paragraphs 3 and 6 of the Affidavit, explaining that the present application was based on the grounds that the applicant had purchased and was living on the disputed land with his family, while the Respondents intended to evict him. He highlighted that the applicant, previously a tenant of the 1st Respondent in an apartment located on Plot Page 3 of 14 and Block No. Ila-2-931 & 2308/156 in Ilala, Dar es Salaam, had been offered the property for sale under certain conditions in January 2022, prior to the expiry of the lease term. Mr. Majura stated that the 1st Defendant had proposed selling the disputed property to the applicant for USD 125,000, to be paid in monthly instalments, in exchange for a reduction in monthly rent. He pointed out that, in accordance with the 1st Respondent's offer, the applicant had accepted the terms and paid more than the agreed rent of TZS 1,000,000 for a period of 21 months, amounting to TZS 22,571,589.60. Mr. Majura also noted that under the reasonable belief that he was the owner of the disputed property, the applicant had incurred costs for renovations. However, he asserted that despite the agreement between the applicant and the 1st Respondent, the Respondents had issued a notice intending to evict the applicant from the disputed

property. He emphasized that these facts supported the view that there was a serious question that needed determination by the Court in the main suit. Turning to the second criterion regarding the necessity of the temporary injunction to prevent irreparable injury to the plaintiff, as stated in paragraph 15, Mr. Majura cited several reasons for this necessity. He noted the potential Page 4 of 14 loss of TZS 33,847,590.60, which represented part payment for the purchase price and renovations, as outlined in previous paragraphs. He highlighted that the applicant, along with his wife and young children, had no alternative residence and would be rendered homeless. Additionally, he mentioned the mental anguish and embarrassment the applicant faced due to the threat of eviction. Mr. Majura expressed his humble view that based on the stated facts in the affidavit, there would be irreparable injury to the applicant, emphasizing the need for the Court's intervention to protect the rights of the parties and ensure substantial justice while the main case was pending. Regarding the third criterion, he reiterated that, as indicated in paragraphs 13 and 14, the applicant's family faced homelessness and had incurred significant costs in terms of the property’s purchase and renovations. He proposed that the denial of the application would result in greater hardship for the applicant compared

to the Respondents. Concluding, Mr. Majura argued that the general conditions for granting a temporary injunction, as established in Atilio v. Mbowe (Supra), had been clearly demonstrated in both the applicant's affidavit and his submission. He Page 5 of 14 humbly prayed for the application for a temporary injunction to be granted, along with costs, reiterating his respectful submission to the Court Mr. Msemwa, learned Advocate for the Respondent, humbly requested the court to adopt the contents of the Counter Affidavits filed on behalf of the Respondent. He further stated that the Applicant's claim of having purchased the property in which they were currently residing was based on falsehoods and aimed at misleading the court into granting relief in contravention of the principles laid down in the case of AtHio vs. Mbowe. He pointed out that the Applicant had failed to annex any sale agreement or transfer documents to the affidavit, as required by law. He also noted that, apart from the Lease Agreement attached to the Applicant's affidavit, there were no other documents showing proof of payment for the purchase of the property or rent. Mr. Msemwa argued that the Applicant, therefore, remained in unlawful occupation of the suit premises and was liable to be evicted. He highlighted that the Lease Agreement, annexed as A-l to the Applicant's affidavit, showed it was for a term of

12 months starting from March 1, 2021, and had long since expired. Page 6 of 14 He drew the court's attention to the decision in the case of Lawrence Magesa t/a Jopen Pharmacy vs. Fatuma Omary & Another, Civil Appeal No. 333 of 2019, which was attached to the submissions. In that case, the Court of Appeal had held that once a lease agreement had expired, the tenant was required to vacate the premises. As of February 2, 2015, the tenant was considered a trespasser and in illegal occupation of the property and was not entitled to any notice before eviction. The court also referred to the decision in Princess Nadia (998) Ltd vs. Remency Shikisiry Tarimo, Civil Appeal No. 242 of 2018 (unreported), where it was observed that a trespasser could not benefit from their wrongful act and had no right to notice or compensation before eviction. In light of the circumstances of the present case, Mr. Msemwa concluded that the Applicant was in illegal occupation of the suit premises and was not entitled to any of the reliefs sought. He, therefore, humbly prayed for the dismissal of the application with costs. Ms. Msangi, in her rejoinder submission, stated that the grounds and basis of the application fell within the legal principles for granting an injunction, as clearly articulated in the case of Atilio vs. Mbowe (supra). She indicated that, in support of the application, she would show how

the three key Page 7 of 14 requirements for the issuance of an injunction had been satisfied. These requirements included: (a) the presence of triable issues, (b) irreparable loss or injury, and (c) the balance of convenience. On the first point, concerning triable issues, Ms. Msangi argued that the Applicant must demonstrate a prima facie case against the Respondents. She referred to the case of Atilio vs. Mbowe, explaining that a prima facie case exists when there are serious questions to be tried on the facts, with a probability that the suit would ultimately be decreed in favour of the Applicant. She suggested that the ill intentions to evict the Applicant from the disputed premises, while there was an arrangement to sell the property to the Applicant, raised a triable issue that could only be resolved at the hearing of the main case. She emphasized that there was no need to delve too deeply into proving the triable issues at this stage, as doing so would amount to hearing the suit itself. She supported this position by citing Asteria Augustine Mokwe vs. National Microfinance Bank PLC & Others, Misc. Civil Application No. 148 of 2020, where the court observed that detailed proof of triable issues was not required at the injunction stage. Furthermore, Ms. Msangi cited Chai Bora Limited vs. Alvic Builders (T) Limited and Another, Misc. Civil Page 8 of 14 Application No. 133

of 2021, where it was held that an applicant must show that they are entitled to relief based on the absence of important answers to the issues raised. Regarding irreparable loss or injury, Ms. Msangi submitted that the Applicant had demonstrated that they would suffer irreparable loss if the injunction was not granted. She referred to the definition of irreparable injury from Chai Bora Limited vs. Alvic Builders (T) Limited and Another, where it was noted that irreparable injury is one that cannot be adequately remedied by damages. Ms. Msangi argued that if the orders sought were not granted, and the 1st and 2nd Respondents proceeded to evict the Applicant, the Applicant would suffer irreparable loss, as they would have no place of abode, leading to economic hardship. The Applicants family currently resided in the disputed premises, and the loss of their home could not be compensated through general or specific damages. On the issue of the balance of convenience, Ms. Msangi argued that the Applicant stood to suffer greater harm if evicted from the suit premises than the Respondents would suffer if the injunction was granted. She asserted that once evicted, the Applicant would not be able to recover the premises, while the Respondents would not experience significant harm if the Page 9 of 14 injunction was issued, as the property would still be available should the main case be

decided in their favour. She supported this argument by referring to Asteria Augustine Mokwe vs. National Microfinance Bank PLC & Others, where it was held that a party would suffer greater harm if the injunctive order was withheld and the property sold, as the loss could not be remedied through monetary compensation. In conclusion, Ms. Msangi submitted that the Applicant had met all three conditions for the grant of a temporary injunction, as laid out in the relevant court decisions. She prayed the court to grant the prayers sought in the application, along with costs. I have dispassionately considered the rival submissions. The issue for determination is whether the applicant has satisfied the conditions for granting a temporary injunction as laid out in the Atilio v. Mbowe (1969) HCD 284 case, which set three key principles: 1. Existence of a prima facie case with a probability of success.

2. Irreparable injury that cannot be adequately compensated by damages; and 3. Balance of convenience, tipping in favour of the applicant. I will discuss these principles in turn bearing in mind specificity of the application. Page 10 of 14 On Existence of a Prima Facie Case, the applicant's case is premised on the fact that he had entered into an agreement with the 1st respondent to purchase the suit property. The terms of the alleged agreement included the applicant paying a monthly sum in lieu of rent, which was to be applied toward the purchase price. The applicant argues that having made payments exceeding the rental obligations and having made improvements to the property, he now faces unlawful eviction. The applicant contends that these facts raise a serious question to be tried, as per Atilio v. Mbowe. The respondents, through Mr. Msemwa, deny the existence of any valid sale agreement between the parties. They argue that the applicant is a mere tenant whose lease expired and that he has failed to produce any proof of purchase. The respondents rely on the decision in Lawrence Magesa t/a Jopen Pharmacy v. Fatuma Omary & Another, Civil Appeal No. 333 of 2019, where it was held that a tenant whose lease has expired has no right to continue occupying the property and can be evicted without notice. On balance, this Court finds that the applicant has raised triable

issues, particularly regarding the alleged sale agreement and payments made toward the purchase. While the existence of a valid sale agreement is in Page 11 of 14 dispute, the facts as presented warrant a full hearing to determine the applicant's entitlement to the suit premises. On Irreparable Injury, the applicant argues that eviction would cause irreparable harm as he and his family reside in the disputed property, and the loss of their home cannot be compensated through damages. He further states that he has invested in improvements to the property and that eviction would cause significant financial and emotional hardship. Ms. Msangi, in her rejoinder, cites Chai Bora Limited v. Alvic Builders (T) Limited & Another, Misc. Civil Application No. 133 of 2021, where it was held that irreparable injury refers to an injury that cannot be adequately remedied by damages. The applicant has demonstrated that eviction would not only result in the loss of a home but also economic hardship, which supports the finding that the injury he would suffer cannot be adequately compensated through monetary relief. The respondents argue that the applicant's occupation is illegal and that he has no right to remain on the property. However, until the question of ownership is resolved, the applicant's argument of irreparable harm stands, Page 12 of 14 as eviction would deprive him of his residence

and potentially cause undue suffering to his family. Finally, on Balance of Convenience, the applicant contends that the balance of convenience tilts in his favour, as eviction would leave him and his family homeless, while the respondents would suffer no significant harm if the injunction is granted. The property in question would remain available to the respondents should the main suit be decided in their favour. In contrast, the respondents argue that the applicant has no lawful right to remain on the property, and the balance of convenience should favour them. Referring to Asteria Augustine Mokwe v. National Microfinance Bank PLC & Others, Misc. Civil Application No. 148 of 2020, this Court is persuaded that the balance of convenience favors the applicant. If the injunction is not granted, the applicant would face eviction, while the respondents would retain their right to the property pending the outcome of the main suit. The respondents have not demonstrated that they would suffer irreparable harm if the status quo is maintained. Page 13 of 14 Considering the foregoing, I am satisfied that the applicant has demonstrated the existence of a prima facie case, that irreparable injury may result if the injunction is not granted, and that the balance of convenience favours maintaining the status quo. Accordingly, the application for a temporary injunction is granted. The respondents, their agents, and assignees are hereby restrained from evicting the applicant or selling the suit premises pending the hearing and final determination of Land Case No. 14319 of 2024. Costs shall abide by the outcome of the main suit. The main suit shall be called for mention 2/10/2024 for mediation at 2PM It is so ordered.

LALTAIKA

JUDGE '< v 30/09/2024 Court Ruling delivered this 30th day of September 2024 in the presence of Ms. Salha Mlilima holding brief for Ms. Aziza Msangi Counsel for the Applicant. Page 14 of 14