scan 14320

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 14320 OF 2024 (Under Land Appeal No. 13265 of2024)

BETWEEN G.H.N.TANGANYIKA BEACH HOTEL LIMITED........................APPLICANT

VERSUS REGISTRAR OF TITLES................................................ 1ST RESPONDENT THE ATTORNEY GENERAL............................................ 2nd RESPONDENT

RULING 30/8/2024 & 11/9/2024 A.MSAFIRI. J, The applicant G.H.N.Tanganyika Beach Hotel Limited filed this Application under Sections 2(1) and 2 (2) of the Judicature and Application of Laws Act,[ Cap 358 R.E 2019] (JALA) and Sections 68 (e) and 95 of the Civil Procedure Code Act, [Cap 33 R.E. 2019],(the CPC), praying for the following orders inter-parties;- I. That this Honourable Court be pleased to order restraining the Respondent, her agents, workmen or assignees from cancelling the name of G. H. N TANGANYIKA BEACH HOTEL LIMITED as registered owner over Plot No. 24A with CT No. 25749 and Plot No. 24A/2 with CT No. 30378 Kunduchi Beach, Dares Balaam from the Land Register under the Land-nil [g i Registration Act Cap. 334 R. E 2019 pending hearing and final disposal of the appeal lodged. In alternative to prayer No (1) above; II. Respondent, her agents, workmen or assignees from allocating the said land over Plot No. 24A with CI No. 25749 and Plot No. 24A/2 with CT No. 30378 Kunduchi Beach, Dar es Salaam to any other person under powers granted to the respondents under the Land Registration Act Cap 334 R. E 2019, pending hearing and final disposal of the appeal lodged. III. Costs of this application be met by the Respondent. IV. Any other relief which this Honourable Court may deem fit andjust to grant. The application was supported by the affidavit of George Herman Nzunda, the

Managing Director of the applicant. The respondent vehemently opposed the application and filed their counter affidavit through one Waziri Mganga, an employee from the office of Registrar of Titles. Hearing of the application was done by way of written submissions, the submissions in chief and rejoinder was filed and drawn by Mr. Daniel Haule Ngudungi, Advocate for the applicant and the reply submission was filed by Ms Mariam Matovolwa, State Attorney, for the respondents. Both parties adhered to the schedule as per the 2 court order. In support of the application, Mr Daniel Haule Ngudungi prayed to adopt an affidavit in support of the application to form part of his submissions. He stated that the applicant seek for the court to restrain the respondent, her agents, workmen or assignees from cancelling the name of G.H.N Tanganyika Beach Hotel Limited as registered owner over Plot No. 24A with CT No. 25749 and Plot No. 24A/2 with CT No. 30378 Kunduchi Beach, Dar es Salaam (herein the disputed plots) from the Land Register or allocating the said disputed plots to another person(s) pending the hearing and determination of the appeal lodged. Mr Ngudungi submitted further that the applicant is the lawful owner of the disputed land and that he has filed Land Appeal No. 13265 of 2024 which is pending before this court. He further stated that the conditions advanced in the case of

Atilio vs Mbowe (1969) H.CD. 284 have been met. On the first condition of existence of serious question to be tried on the facts alleged, the counsel stated that there is a pending appeal i.e. Land Appeal No. 13265 of 2024. On second condition of irreparable loss, the counsel argued that, the applicant is in danger of suffering irreparable loss if the prayer sought 3 is not granted by this court as he had made developments over the land and without any justifiable reasons the respondents issued notice to the applicant with the aim of cancelling the two Certificates of Titles over Plot No. 24A with CT No. 25749 and Plot No. 24A/2 with CT No. 30378 Kunduchi Beach Dar es Salaam. Lastly, he prays the application to be granted. In reply, Ms Mariam Matovolwa submitted that the applicant was given the Notice of Rectification on 11th March, 2024. That the aim is to rectify the Titles within 30 days from the date of posting or dispatch of the notice, and if the applicant fails to submit the Certificate of Title within 14 days, the Certificate of Title will be cancelled automatically. She contended that, since the applicant failed to submit Certificate of Titles No. 25749 within 14 days, the 1st respondent has rectified the Register by removing the name of the applicant. She argued that this application is over taken by events and prayed the court to dismiss the application with

costs. After the submissions of both parties, the issue for determination is whether the application at hand has merit? A grant of an order for temporary injunction is on the court's discretion. In order for the court to exercise the said discretion, the 4 applicant must establish all three conditions which are mandatory for the court to grant injunction. The conditions are well set in the case of Atilio vs Mbowe (supra). The conditions are that; there should be a prima facie case between the applicant and respondent, the need for court intervention is necessary to prevent irreparable loss and the balance of conveniences should tilt to the applicant. Regarding the condition of existence of a prima facie case, it has been asserted by the applicant in the affidavit deposed by Geogre Herman Nzunda at paragraphs 5 and 6 and submitted in court that the applicant have been sent a notice for cancellation of his Titles on 12th March 2024 and he instructed his advocate to lodge an appeal against that act. That he filed an Appeal No. 13265 of 2024 challenging the intending act of the respondents to cancel the name of the applicant as a registered owner over Plot 24A with CT No. 25749 and Plot No. 24A/2 with CT No. 30378 Kunduchi Beach, Dar es Salaam The respondents has also stated through the counter affidavit deposed by Waziri Mganga that the applicant was a lawful owner of the disputed

plots until the notice was issued for plots to be cancelled from the register. That the applicant was notified of the cancellation of his Certificate of Titles and was required to adduce. 5 evidence indicating as to why the plot should not be cancelled. Gathering from the submissions form the rival parties, including the evidence from both the affidavit and counter affidavit, I am convinced that there is a serious issue to be determined that is; the claimed cancellation of the Certificate of Titles of the applicant over the disputed land. All these contests show the existence of the prima facie case between the applicant and respondents. On the second condition of irreparable loss, the applicant has submitted in the affidavit at paragraph 8 and also in court that the respondents intends to cancel his ownership without assigning reasons. That the applicant has made developments in the disputed land and if the cancellation of the Certificate of Titles will be effected, he will suffer loss that cannot be compensated by monetary. From the foregoing, I find the applicant has successfully demonstrated irreparable loss which may occur if the certificate of titles are cancelled. On the third condition on balance of convenience, the applicant asserted that the injury that he will suffer is greater than what the respondents will suffer if this application will not be granted. Again, the

affidavit of the applicant shows on how the applicant will suffer if this application is not granted. The suffering is not capable 6 of being compensated. In the circumstances of the matter, I agree that the applicant stands to suffer more than the respondents. The argument advanced by the respondents that the matter had been over taken by event lack merits in eye of law, since the respondent failed to adduced evidence to prove the same. In the circumstances, this court finds that the applicant has met cumulatively the three conditions which are mandatory for the court to grant the sought orders. I hereby grant the application with no order as to the costs. It is so ordered. 11/9/2024 7