Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. APPLICATION. NO. 4765 OF 2024 HAMIS OTHMAN MWANYA AMRI YAHAYA MFIKILWA APPLICANTS SAID SALIM TENGA SURA MWITA SUTA AND 82 OTHERS VERSUS BOARD OF TRUSTEES NATIONAL SOCIAL SECURITY FUND..................................1st RESPONDENT KINONDONI MUNICIPAL COUNCIL............................... 2nd RESPONDENT HON. ATTORNEY GENERAL......................................... 3rd RESPONDENT JMZ LAND FIELD COMPANY LIMITED............................... 4™ RESPONDENT RULING 28/6/2024 & 23/7/2024 A.MSAFIRI, J This is the application whereby the applicants seeks the order of this court to issue summons to the District Executive Director of 2nd respondent to appear before this court and show cause why he should not be convicted of contempt of court and be detained as a civil prisoner for disobedience of the lawful order of this court made on the 17th July, 2022. The applicants also moved this court that upon hearing, enter a i finding that the District Executive Officer of the 2nd respondent has committed contempt and the court should imprison the said 2nd defendant to a term it sees fit; In alternative, the court to order the District Executive Director of the 2nd respondent to pay damages/compensation to the plaintiffs to the tune of Tshs. 500,000,000/=. Before the application was heard on its merit, the respondents raised two points of preliminary objections that; 1. The application is untenable and bad in law because the order which is alleged to have been disobeyed by the 2nd Respondent has no legal force in accordance to order XXXVII Rule 3 of the Civil Procedure Code Cap. 6 R.E. 2019 for being out of six months provided by the law. 2. The application is untenable and bad in law for being preferred against an institution and not a natural person as required by the law. The disposal of the application was by way of written submissions whereas, the applicants had legal representation of Mr. Francis Munuo learned Advocate, while the respondents enjoyed the legal service of Ms. Lilian Samson Mirumbe learned State Attorney. Submitting on the first limb of the raised preliminary objection, Ms. Mirumbe stated that the order intended to be enforced by the applicants have no legal force as it has expired. That temporary injunction given under Order XXVII Rule (1) and (2) of the Civil Procedure Code, Cap 33 [R.E. 2019] is subject to time limit under Order XXXVII Rule (3) of the= 2 same, and that the time limit is six months only. She further stated that the temporary injunction was granted by this court on 17/7/2023 pending the determination of the main suit which is the Land Case No. 168 of 202. But that the life span of the temporary injunction is six months that had ended on 16/01/2024. The counsel stated that this application was filed before this court in May, 2024, which was beyond the authorised time limit, whereas the temporary order was no longer in force. To bolster the point above she cited the case of John Joseph Magazeti and others vs Gabriel Mushi @ Gabriel Stephen Masha and Other, Misc. Civil Application, No. 43 of 2019 HC (Mwanza District Registry) unreported where it was held at page 6; 'In this case, the temporary or rather interim order was issued on 06.11.2013, although no time was specified in that order, but its existence was supposed to be six months, should the applicant in that application (now the respondents in his application) needed to extend it, they were supposed to apply for extension which would have, in aggregate lasted for a yeari.e. 06.11.2014 ofcourse after complying with the above seven condition. Failure so to do that means the temporary injunction or interim order ceased to be in force after the expiry of six months of its existence, and therefore no court order vacating the same or uplifting it was needed to make it ineffective' She said further that the same position has been previously elaborated by the Court of Appeal on the case of African Trophy Ltd vsX /jo 3 Attorney General and Others, Civil Appeal No. 25 of 1997 [unreported]. Therefore, in the instant matter, the temporary injunction granted to the applicants had expired hence it has no legal force. On the second limb of preliminary objection, Ms. Mirumbe contended that criminal punishment can only be against natural person, however, that there was no name of the person that disobeyed the court order that can be imprisoned. She was of the view that the District Executive Director (DED) is the title and not an individual person, and that the DED does not exist in the 2nd respondent's office as there is no such title, therefore that the order cannot be enforced to non-existing person in the 2nd respondent's office. On reply, Mr. Munuo contended that the whole submissions by the learned State Attorney is misconceived and misleading this court, he was of the view that the temporary injunction was granted pending the determination of the Land Case No. 168 of 2023 before this court whereas, the order was that; 1. Status quo to be maintained on the suit landed property pending determination of Land Case No. 168 of2023. 2. Each party to bear its own costs. He argued that the granted temporary injunction cannot be varied by this court but the Court of Appeal and therefore, that the temporary 4 injunction granted by Hon. Hemed, J. on 17/7/2023 is still valid until the final disposal of the Land Case No. 168 of 2023. He cited the case of Access Microfinance Bank Tanzania Limited and Others vs Kitumbo Security Guards Company Limited and Others, Land Revision No. 1 of 2023 HC Tabora District Registry at Tabora (Unreported) where it was held that; "The law thereof is very dear, when the temporary order is given under rule 1(a) or Rule 1(b) of order XXXVII supra, such order shall remain intact and valid until final disposal of the suit. That is a dear wording of the provision which states that when it is proved by affidavit or otherwise that the property in dispute in a suit is in danger to be wasted, damaged or alienated by any party to the suit or suffering loss of value by reason of its continued use or where the defendant threatens or intends to remove or dispose the court may grant a temporary injunction to restrain such act until the disposal of the suit or until further orders" Mr. Munuo was of the view that the position in the case of African Trophy Ltd (supra) cited by the respondents is distinguishable from the application at hand, whereas he was of the view that the Court ruled that temporary injunction is valid for the period specified in the order, and that the specified time in the order was until the final disposal of Land Case No. 168 of 2023. He added that the limitation of six months under Order XXXVII (3) of the CPC, Cap 33 [R.E. 2019] is applicable only where the court grants temporary injunction suo moto. 'lx s On the second limb of preliminary objection, Mr. Munuo submitted that it is a new objection which was never pleaded in the notice of preliminary objection and no leave was granted to argue it. Nevertheless he submitted that the District Executive Director and Municipal Executive Director are used interchangeably. He was of the view that there was no law cited to have been contravened. On rejoinder, Ms. Mirumbe reiterated what was submitted in chief and further added that the applicants has used the marginal Note to construe the provision of Order XXXVII Rule (1) (2) and (3) of the CPC, Cap 33 [R.E. 2019] which is not allowed. To bolster this position she cited the case of Tata Power Company Ltd and Others vs Maharashtra Electricity Regulatory Commission & Others, Appeal No. 212 of 2013. Having gone through the submissions of the parties, it is clear that there was temporary injunction granted by this court, however the applicant alleges that the same was not obeyed by the respondents. Order XXXVII Rule (3) of the CPC provides thus:- '777 addition to such terms as the keeping of an account and giving security, the court may by order grant injunction under rule 1 or rule 2 and such order shall be in force for a period specified by the court, but not exceeding six months: jL I 6 Provided that, the court granting the injunction may, from time to time extend such period for a further period which in the aggregate shall not exceed one year, upon being satisfied, on the application of the holder of such court injunction that the applicant has diligently been taking steps to settle the matter complained of and such extension sought is in the interest ofjustice, necessary or desirable." (emphasis added). From the above provision it appears that temporary injunction is subject to time limit, which is clearly stated to be not more than six months subject to renewal. In this application, on 09/4/2024 one Florida Peter Seleman with her agents were found in the suit property erecting boundary in which she claimed owner of the suit property. Since the temporary injunction was granted on 17/7/2023 and the time limit was six months as per the provision above, counting from 17/7/2023 when the application was granted to 09/4/2024 when Florida Peter Selemani was found in the suit premises, or on 26/3/2024 when the 2nd respondent issued the building permit to the Florida Peter Selemani as alleged, more than eight months has lapsed since the order of injunction was issued. Therefore I agree with the learned State Attorney that the time limit for temporary injunction is six months unless it is extended as per the above provisions of the law and in the instant matter, the six months has already expired. A| 7 I don't subscribe the views of Mr. Munuo that the limit of six months is applicable where the court grant the application suo mote because the provision of the law above is unambiguous that temporary injunction lasts for six months subject to extension. There is no evidence that the applicants sought to extend the time limit for temporary injunction. I agree that the order which is sought to be enforced by the applicants in this application has no legal effect as it has already expired. Having so observed, it is apparent that this application is incompetent before me, I sustain the first limb of preliminary objection. Since this is sufficient to dispose this application, I find it not necessary to determine the second limb of preliminary objection. The application is struck out with no order as to costs. It is so ordered. ^.MSAFIRI JUDGE ^^^3/7/2024 8