gwabo mwansasu and others vs tanzania national roads agency 2020 tzhc 4093 27 november 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA AT MBEYA MISCELLENEOUS LAND APPLICATION NO. 72 OF 2020 (Originating from Land Case No. 8 of 2020). 1. GWABO MWANSASU................................................... 1st APPLICANT 2. HERBERT SHAO........................................................... 2nd APPLICANT 3. GODWIN MWAISUMO..................................................................... 3rdAPPLICANT 4. ISACK MWAKIPESILE....................................................................... 4thAPPLICANT 5. JONAS MWASAMBILI....................................................................... 5thAPPLICANT 6. EDEN KYUNGU................................................................................. 6thAPPLICANT 7. SAMSON M. MKISI........................................................................... 7thAPPLICANT 8. HEBRON M. KASOKELA..................................................................... 8thAPPLICANT 9. LUCAS JOHN MWASIKILI..................................................................9™APPLICANT 10. AUGENIA VENANCE MSOVELA...................................... 10™ APPLICANT 11. RICHARD MWAMBOLA................................................. 11™ APPLICANT VERSUS; 1. TANZANIA NATIONAL ROADS AGENCY............ 1st RESPONDENT 2. THE HONOURABLE ATTORNEY GENERAL......... 2nd RESPONDENT RULING 30/10 & 27/11/2020. Utamwa, J. This is a ruling on an interlocutory application. The applicants in this matter, Gwabo Mwansasu and 10 others, moved this court for the following orders which I reproduce for ease of reference; 1. That, this Honourable Court grant any relief it deems fit and equitable to grant. 2. That, the Court may be pleased to make order declaratory of the rights of the parties. 3. That, this Honourable court be please to make an Order of Interim Injunction restraining the Respondents jointly and severally, their employees, agents, assigns, workmen and or any other person(s) acting under authority or claiming rights, interests or Title derived from the respondents jointly or severally, from evicting or interfering or uprooting the Trees with or deforming of the applicants' Land meant, Landed Properties and applicants' quite possession of their Land situated at MPINDO JUU, MABONDE STREET, BULYAGA and MSASANI WARD, within Rungwe District Council (hereinafter called the suit land cumulatively), pending the determination of the main suit. 4. That, this Honourable Court grant any relief it deems and equitable to grant. 5. Costs of this application be borne by the Respondents. The application was preferred under Order XXXVII rule 1 (a) and 2 (1), section 68 (c) and (e), section 95 of the Civil Procedure Code, Cap. 33 R. E. 2019. It was supported by a joint affidavit sworn by all the 11 applicants. The respondents, TANZANIA NATIONAL ROADS AGENCY and THE HONOURABLE ATTORNEY GENERAL (henceforth the first and second respondent respectively), objected the application through a counter affidavit sworn by Mr. Francis Rogers, learned Senior State Attorney in the office of the Solicitor General. Though in their joint affidavit the applicants did not mention the reference of the main suit mentioned above [see paragraph 10 (a) of the affidavit a space intended for filling the reference of the main suit was left blank], it is apparent that, they had in mind Land Case No. 8 of 2020 pending before this court. In this main suit, according to the plaint, the applicants are suing the two respondents for some reliefs. This fact is also not disputed by the respondents. The applicants allege in the plaint, inter alia, that, they are the lawful owners of the suit land. However, the first respondent has issued a Paop 9 nffi notice intending to vacate them from the suit land purporting that, they (applicants) had evaded the land as a road reserve. They are thus, claiming against the two defendants jointly and severally for the following reliefs: i. The Declaration that the disputed land belongs to the plaintiffs. ii. An order that the Plaintiffs' Land is subject to evaluation and payment of fair compensation before relocating or demolishing the Plaintiffs' Houses. iii. A declaration that the contemplated acquisition of the disputed land by the 1st defendant is unlawful. iv. A permanent order restraining the 1st defendant from interfering with the plaintiffs land without prompt and fair compensation. v. The order of the Court, that proper valuation report to be conducted. vi. Payment of Claimed amount to the tune of Tanzania Shillings (Tshs.) 350, 000, 000/= (three hundred and fifty million only). vii. Interest at Court Rate of 12% per annum from the date the cause of action arose to the date of Judgment. viii. Cost of this Suit. ix. Any other Cost which this Honourable Court deems necessary and just to grant. The application was argued by way of written submissions. The applicants were advocated for by Ms. Rose Kayumbo, learned counsel while the respondents were represented by Mr. Joseph Tibaijuka, learned State Attorney. The affidavit supporting the application contained the complaints similar to those in the plaint as narrated above. It further stated that, the notice for the applicants to vacate the suit land was issued by the first respondent without any prior consultation with them. If the application at hand is not granted, the applicants' landed properties will be demolished by the respondents beyond repair for road construction. They will thus, suffer irreparable loss. The demolition will be performed by the first respondent without any proper evaluation and before the determination of the pending main suit. The affidavit states further that, any delay to make the prayed orders in this application will make the proceedings in the main suit abortive. In the counter affidavit, the two respondents did not dispute most of the facts deponed in the affidavit. The counter affidavit further stated that, the notice to vacate was intended to notify the applicants as invaders into the suit land, to vacate from that road reserve without any compensation. The applicants wrongly acquired the suit land since it is reserved for road construction. They are thus, not lawful owner of such land. There is also, no any danger against the applicants if this application is not granted since they are trespassers to the land. There is also no necessity for conducting any evaluation for the suit land because, the applicants are not entitled to any compensation as trespassers. In her written submissions, the applicants' learned counsel adopted the contents of the affidavit supporting the application as narrated above. She further contended to the following effect; that, the application meets all the conditions for temporary injunction as set in the case of Atilio v. Mbowe [1969] HCD n. 284. The case, according to the applicants counsel, set the following conditions for a court to grant an application of this nature: i. That, there must be a prema facie case/a serious question to be tried on the facts alleged and a probability that the plaintiff will be entitled to reliefs prayed. ii. That, the court's interference is necessary to protect the applicant/plaintiff from any kind of injury which may be irreparable before his legal rights are established. iii. That, on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it. The learned counsel for the applicants also offered a definition of the phrase "irreparable loss or injury" mentioned above. She said, this is an injury which is Page 4 of 6 substantial and could never be adequately remedied or atoned for by damages, or an injury which cannot possibly be repaired. She based this definition on the book of Mulla, the Code of Civil Procedure, 18th edition, at page 3324. Moreover, the learned counsel for the applicants submitted that, the three conditions mentioned above for granting a temporary injunction were also underscored in by other court decisions. To substantiate her contention she cited the cases of Kibo Match Group v. H. S. Implex Ltd [2001] TLR. 152 and Philemon Joseph Chacha and 3 others v. South African Airways and 3 others [2002] TLR. 362. In his written replying submissions, the learned state attorney for the respondents among other things, argued that, the feared loss by the applicants are not irreparable as per the definition of the law. This definition was also offered by the applicants' counsel in her submissions in chief above. He referred the court to the reliefs sought in the main case which include monetary compensations. He thus, argued that, an irreparable loss must not be atoned by monetary compensation. The conditions in the Atilio case (supra) were thus, not met cumulatively in the case at hand. In her rejoinder submissions, the learned counsel for the applicants essentially reiterated the contents of her submissions in chief. I have considered the arguments by the parties, the record and the law. The issue before me is thus, whether or not the applicants' application at hand has met all the three legal conditions for this court to grant the prayed temporary injunction. In my view, the circumstances of the case do not attract answering this issue affirmatively on the following grounds: in the first place, I agree with the learned State Attorney's contention. In fact, according to the reliefs sought in the main suit and listed above, the applicants are claiming for, among other things, the following reliefs: payment of fair compensation before relocating or demolishing their properties in the suit land, a permanent order restraining the 1st defendant from interfering with the plaintiffs land without prompt and fair compensation and payment of the claimed amount to the tune of Tshs. 350,000,000 to the Plaintiffs. Certainly, these particular reliefs suggest that, Page 5 of 6 the loss (if any) that may be incurred by the applicant in case the application is not granted, can be atoned by monetary compensation as rightly argued by the learned State Attorney. This shows that, this application did not meet the second condition for granting temporary injunction among the three conditions set in the Atilio case (supra) and listed above. It is more so because the applicants did not state anywhere in their joint affidavit that the respondents are incapable of atoning the loss they may suffer in case this application is rejected and applicants win the main suit. I therefore, agree with the learned State Attorney that, the application does not meet all the three conditions for granting the prayed temporary injunction. This is because, according to the Atilio case (supra) the conditions must be met cumulatively and not alternatively. I therefore, answer the issue posed above negatively. I accordingly dismiss the application. Costs shall be in the course since the main suit is still pending before this Respondent: Mr. Imikigwe Mwasumbi, advocate holding briefs for Mr. Rogers, SSA. BC; Mr. Patrick, RMA. Court: ruling delivered in the presence of Mr. Imikigwe Mwasumbi, learned Counsel for the applicants and who holds briefs for Mr. Francis Rogers, learned Senior State Attorney for the respondent, this 27th November, 2020, J. H. KJUTAMWA JUDGE \ 27/11/2020.