Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 2572 OF 2024 HAMZA H. KIMBE 1st APPLICANT MAULID ISSAH OMARY, 2nd APPLICANT HASSAN ISSA OMARY 3rd APPLICANT SHARIFU MOHAMED 4th APPLICANT HAMZA MASOUD 5th APPLICANT GEORGE MLIGO 6th APPLICANT HALFANI RASHID 7th APPLICANT JUZEN MKINI 8th APPLICANT NASSORO ZUNGU 9th APPLICANT FADHILI MDUMA 10th APPLICANT SAID RASHID 11th APPLICANT ABDALLAH BELLA 12th APPLICANT KASIM ALMASI 13th APPLICANT VITUS CHENGULA 14th APPLICANT HALID PANGARELI 15th APPLICANT NASHO NKOLO 16th APPLICANT ABBAS MALUNDA 17th APPLICANT MSAFIRI M. MATENGA 18th APPLICANT MAZINDA SELEMAN 19th APPLICANT JUMA IDRISA 20th APPLICANT AMINA ELIAS 21st APPLICANT SHABAN NGWELE 22nd APPLICANT ENOCK KIMWAYEYA 23rd APPLICANT 1 ROZI KINYELA..................................................................................................... 24™APPLICAN JUMA BAKARI...................................................................................................... 25™APPLICAN GEORGE PETER............................................................................. 26™ APPLICANT BURTON PHILIPO............................................................................................... 27™APPLICAN FRANCIS YUNUS...................................................................................................28™APPLICAN WINFRID JOHNSON............................................................................................. 29™APPLICAN ISIHAKA MLIMBA................................................................................................ 30™APPLICAN 31stAPPLICAN RAHIM FUSI GASSI............................................................................................ RASHID MOHAMED KALA.................................................................................. 32ndAPPLICAN RAMADHANI JADI MBARUKU............................................................................ 33rdAPPLICAN HUSSEIN S. KAMBAYA.......................................................................................34™APPLICANT MWALIMU ATHUMAN......................................................................................... 35™APPLICAN ALHAJ Y. MANDIA......................................................................... 36™ APPLICANT PETER J. MABUKU............................................................................................... 37™APPLICAN ABEID Z. KIMWEMWE......................................................................................... 38™APPLICAN SHAFII RASHID....................................................................................................39™APPLICAN SHAIBU MANG'ENYA........................................................................................... 40™APPLICAN ATHANAS K. MNYAVANU.................................................................................... 41stAPPLICAN JUMA I. KIBINDU................................................................................................ 42ndAPPLICAN ABDUL KHAN........................................................................................................ 43rdAPPLICAN ISSA SHARIF........................................................................................................ 44™APPLICAN WILE MTEGA......................................................................................................... 45™APPLICAN ISSA CHASAMBA................................................................................................. 46™APPLICAN CHUZEN MTITU....................................................................................................47™APPLICAN AZIZI TWEVE........................................................................................................ 48™APPLICAN JUMA GASSI......................................................................................................... 49™APPLICAN OMARY MGAYA ................................................................................ 50™ APPLICANT HERMAN BONAS CHALLE.................................................................................... 51stAPPLICAN 2 ABDALLAH MAULID NGWELE............................................................................ 52ndAPPLICANT HAMZA JUMA KIVUGO....................................................................................... 53rdAPPLICANT ALLY HAMIS KIDURA.......................................................................................... 54™APPLICANT ABUBAKAR RAMADHANI BANGO...................................................................... 55™APPLICANT HASSAN IDD SAUKO........................................................................................... 56™APPLICANT UMI RAMADHANI SELEMANI............................................................................. 57™APPLICAN HALIMA SAID AWADHI.......................................................................................58™APPLICANT SEIF DIWA............................................................................................................ 59™APPLICANT BAKARI MOSHI NGWELE................................................................................... 60™APPLICANT 61stAPPLICANT FAHM ALLI MUHSIN............................................................................................ YUSUPH MOHAMED KINYOGOLI...................................................................... 62ndAPPLICANT SAID SELEMAN MTIMBO.................................................................................... 63rdAPPLICANT JAMES R. MAJINGA..............................................................................................64™APPLICANT ALLY ODDA KANUNI.............................................................................................65™APPLICANT VERSUS 1 ATTORNEY GENERAL.............................................................................................. stRESPONDEN PRESIDENT'S OFFICE, MINISTRY OF REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT................................................. 2ndRESPONDE UBUNGO MUNICIPAL COUNCIL...........................................................................3rdRESPONDEN OFFICE OF THE REGIONAL COMMISSIONER, DAR ES SALAAM REGION...........................................................4™ RESPONDENT RULING 22nd to 27th March, 2024 E.B. LUVANDA, J This is application is made under the enabling provisions of section 2(3) of the Judicature and Application of Laws Act, Cap 358 R.E. 2019 and sections 3 68(e) and 95 of the Civil Procedure Code, Cap 33 R.E. 2019. Basically, the Applicants above are seeking for two orders: maintaining status quo ante and thereby an interim order directing the Third Respondent to abstain from carrying on any activity/operations relating to the running of, all activities concerning Mabibo Market, commonly known as Soko la Ndizi Mabibo, located at Urafiki Area, Ubungo Municipality, pending the hearing and determination of an application for temporary injunction to be filed after expiry of ninety days statutory notice of intention to sue the Government already issued to the Respondents. In the joint affidavit in support of the application, the Applicants' cause of action is rooted from the alleged speech of the then President of the United Republic, the late John Pombe Magufuli made on 15/10/2020 during public rally alleged made orders among others that the market activities should be run, conducted and managed by the Applicants themselves without interference from the Municipal, District and Regional Authorities; the Applicants to organize themselves and register into body/organ; exempted them from paying any levy; all collections/monies from vendors and users of the market should be collected by the Applicants themselves. 4 They asserted to had registered themselves by the name Umoja wa Wafanyabiashara wa Soko la Ndizi Mabibo (UWAMASONDIMA) as per annexure A; they procured Tax Payer Identification (TIN) from TRA; they obtained EFD machines and engaged into borrowing money and invested for improving the market. They stated that to their surprise, on 17/08/2023 the Regional Commissioner visited at the market and directed that the running of the market activities should be under the management of Ubungo Municipal Council, where the Third Respondent deployed SUMA JKT to force them to pay various rates/levies without any justification, which according to the Applicants, prompted the situation of unrest and violence at the place of business. They stated to have instructed their attorney to issue a notice to sue the Government, annexure D. On 22/12/2023 they filed Misc. land Application No. 322 of 2023 which was withdrawn on 23/01/2024. They stated that meanwhile, the Third and Fourth Respondent intensified taking over all operations including collection of all revenues that were ordinarily executed by the Applicants. They stated that the Respondents actions are prone to causing serious loss of business, income and life hardship, indebtness due to failure to do business and paying loans. 5 In the joint counter affidavit, the Respondents stated that Soko la Ndizi la Mabino does not belong to the Applicants. They stated that the Respondents neither stopped nor ordered to stop the Applicants and other vendors who are more than 4,300 from doing business at Soko la Ndizi la Mabibo. They stated that the Applicant have not disclosed cause of action against the Respondents. They stated that the Third Respondent is collecting levies within its locality which is among the core functions of its establishment. They stated that the Third Respondent's collection of levies does not hinder the Applicants and others from conducting business activities. They stated that if the prayers sought in the chamber summons are granted, it will hinder the core function of the Third Respondent and ability to carry out its statutory duties to the residents within its locality and the general public. In reply to the joint counter affidavit, the deponent stated that the function of running all the activities in connection to the market at Soko la Ndizi Mabibo are vested under the exclusive mandate of the Applicants, as per the audio clip, the letter from the Third Respondent dated 25/01/2021 and pages 24 and 129 of the report of Tanzania National Business Council of 2021, annexure RAI, RA2 and RA3 to the reply to the counter affidavit. 6 Mr. Benitho l_. Mandele learned Counsel for the Applicants submitted that annexure RA2 to the reply to the counter affidavit which is a letter from the Third Respondent clearly established the facts that: One, the then President of Tanzania the late John Pombe Magufuli handed over all the activities of running the Mabibo Market to the Applicants; Two, the function of collecting all revenues at the market place was vested to all the Applicants; Three, the Third Respondent directed the Applicants to buy EFD machines and open bank accounts necessary for facilitating the collection of such revenue. He submitted that it is averred in the affidavit that the Third Respondent has interfered with the market activities which were put/vested under the powers of the Applicants and that the actions are detrimental to the Applicants who for so many years have invested in their business at the market place, they have serious financial obligations to different financial institutions, individuals and customers. He submitted that the Third Respondent's interference is causing greater inconvenience and hardships to the Applicants, actions which go to the root of the Applicants' right to work and earn leaving. In reply, Mr. Boaz Msoffe learned State Attorney submitted that the application has not met the principle in Atilio vs Mbowe. He submitted that the Applicants have not demonstrated as to what is their cause of action 7 against the Respondents. He submitted that they ought to show whether they are owners or tenants, for them to have an arguable case. He submitted that they did not plead as to what they intend to challenge. He cited the case of Said Hamis vs Kibaha Town Council and Another, Misc. Land Application No. 382 of 2023. He submitted that on irreparable loss they have not demonstrated any damages beyond repair be it monetary or otherwise. He submitted that if the loss can be repaid by money, argued it cannot be termed as irreparable loss. He submitted that on the balance of convenience it lies with the Respondents, for reason that the Third Respondent is mandated by law to collect revenues within its jurisdiction, citing section 60(l)(g) of the Local Government (Urban Authorities) Act, Cap 288 R.E. 2002, arguing that it's a statutory duty of the Third respondent and not the Applicants. He submitted that in the matter at hand, public interest has to be considered, for reason that the market has more than 4,300 traders, but only 65 Applicants filed this matter, arguing it connote there are others who are not interested in the matter. He submitted that the order will preclude the Third Respondent to execute its legal mandate. On rejoinder, the learned Counsel for Applicants submitted that all the requirements in Atilio vs Mbowe have been established, in the affidavit the 8 Applicants have demonstrated that the land in issue was given to them by the President of the United Republic of Tanzania and they have stated how they acquired that land and the same facts was acknowledged by the Third Respondent as per annexure RA2 to the reply to the counter affidavit, argued the said letter protect the Applicant in the intended suit. On the question of balance of inconvenience, he submitted that it is stated in the affidavit that the interference by the Third Respondent is causing serious hardship to the life of the Applicants, citing Agness Kosia & Others vs The Board of Trustees of NSSF & Another, Misc. Land Application No. 590 of 2016. He submitted that the right to collect revenue at Mabibo Market was vested to the Applicants and the Third Respondent was expressly excluded from that duty as acknowledged by the Third Respondent herself in its letter annexure RA2 to the reply to the counter affidavit. He submitted that there is no any public interest which is likely to be suffered. It is elementary rule that the three conditions for the grant of interim or temporary injunction in the celebrated case of Atilio vs Mbowe, must be met cumulatively. Herein the sixty-five Applicants alleged that the interference by the Third Respondent in their duty and obligation to collect revenue and levy at the 9 suit market will cause hardship to them, citing heavy investment and loans borrowed from various financial institutions and individuals, that they ram into messy of indebtness, failure to pay loan, their security in danger of being auctioned. In a letter annexure RA-2 to the reply to the joint counter affidavit, reflect it was addressed to the leadership of Soko la Mabibo. Neither of the sixty-five Applicants introduced as a leader of the said Soko la Mabibo. At paragraph two of the affidavits the Applicants introduced themselves as business men and women carrying on various business at Soko la Ndizi Mabibo. More importantly, in the joint counter affidavit at paragraph seven it is asserted that there are more than 4,300 traders at Soko la Mabibo. In reply to the joint counter affidavit this factual deposition was not attended, remained uncontested. Even on reply submission, the learned State Attorney repeated the same facts, but no rejoinder was forthcoming to either rebut or clarify this fact. Therefore, granting the sought prayers in favour of only sixty-five Applicants out of 4,300 traders at large, will be detrimental to the public. Profound wisdom dictates not grating the application. This is for obvious reasons that 10 there is no manifesto or memorandum showing that the alleged 4,300 population had consented to the recourse taken and sought herein. Importantly, in paragraph seven sub paragraph (b), in paragraph eight of the joint affidavit, the Applicants bragged to have organized and formed an organ styled Umoja wa Wafanyabiashara wa Soko la Ndizi Mabibo (UWASONDIMA) and obtained a formal registration, as per certificate of registration annexure A vindicating it was registered under The Societies (Application for Registration) Rules, of 1954. Surprisingly, the sixty-five Applicants sued under their personal capacity. I therefore rule that the Applicants have failed to meet the condition for the grant of an interim relief. The Application is dismissed. The Applicants are spared to foot costs. Ruling delivered in the presence of Mr. Boaz Msoffe learned State Attorney for Respondents and in absence of Mr. Benitho Mandele learned Counsel for Applicant, (although the learned Counsel was informed by the Court Clerk regarding the rescheduling of the date of the delivery of the Ruling, and the court Clerk informed me that he has conducted the learned Counsel who said he travelled to Arusha to attend a matter under urgency). 12