haruna omar mbonde others vs shabani haruna kapelele others 2018 tzhclandd 425 20 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM. MISC. LAND APPLICATION NO. 611 OF 2017 HARUNA OMAR MBONDE & 17 OTHERS........ APPLICANTS VERSUS SHABANI HARUNA KAPELELE & 36 OTHERS............................................. RESPONDENTS Date of last Order: 8/6/2018 Date of Ruling: 20/07/2018 RULING MGONYA, 3. The Applicants in this Application pray for orders among others, that: i. This Hon. Court may be pleased to issue permanent injunction against the Respondents, their agents workmen, representativesfrom disposing off, constructing and any form o f development on the land in dispute pending determination o f the main case (Land Case No. 280 o f 2016) on merit In this Application, the Chamber Summon is laid under Order XXXVII Rule 1(b), Section 68 (c), (e) and Section 95 of the Civil Procedure Code Cap. 33 [R. E. 2002]. The Respondent herein have taken objection to the application by Notice of preliminary objection on three grounds that: /. The Application is incompetent before the court for being moved by wrong provisions o f the law; ii. The Application is improper before the court for being supported by the affidavit which is incurably defective; and ///. The Application is bad in la w that the order sought for in a Chamber Summons is the one which they pray in the main suit The Application was disposed by way of written submissions as per parties' prayer. As for the first point of preliminary objection that the Application is incompetent before the court for being moved by wrong provisions o f the law; it is the Respondents' Counsel submission in support of this point of preliminary objection that the provision which brought this Application which is Order XXXVII Rule 1(b) of the Civil Procedure Code, Cap. 33 [R. E. 2002], do not move this court for the prayer sought. It is their contention that, according to the nature of the application, the correct provision is Order XXXVII Rule 1(a) and not Order XXXVII Rule 1(b) to that effect. The Counsel further quoted the said provisions to show the difference, and state that the provision before the court is to restrain repetition or continuance of breach which is not in the Application. Respondents' Counsel further insisted that, in moving the court to grant a certain order, specific provision for an order sought must be cited. In the event therefore, Respondents thus prayed the court to strike out the Application for improper provision to move the court. Responding to the point of Preliminary Objection, the Applicants' Counsel was of the view that the point of preliminary objection is devoid of merit since the Application before the court is interlocutory containing various provision of law as cited in the Chamber Summons. It was submitted further that, even if there appeared an error in typing which led into this point, the court has power to proceed and determine the matter before it. Supporting this contention, the decision in Criminal Application No. 5 OF 2014 IN DUDA DUNGALI VS. THE REPUBLIC by HON. MASSATI J.A. was cited. From the same, it is the Applicants prayer that this court dismiss the point of preliminary objection for being meritless. I have carefully considered the parties' respective written submissions. Further, I have managed to go through the Parties' pleadings in order to ascertain the cause of action to this matter to determine the nature of the Application before the court. However, before I determine the current point of preliminary objection, let me emphasize some legal matters and point out the difference of the above two sub sections, if any. The Law is settled that once a party chooses to move the court formally by written Application, it is a mandatory requirement under the law that specific provisions of the law under which it is brought, must be cited. (My emphasis here is "specific provision of law"). Indeed, Order XXXVII generally provides for issuance of the Temporary Injunctions pending the disposal of the suit or other orders. Order XXXVII Rule 1 (a) caters for a situation where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. It also accommodates the situation where there is a suffering loss of value by reason of its continued use by any party over the property to the suit. Furthermore, Rule 1(a) prescribe for a situation where the property is wrongly sold in the execution of a decree. Whereas Rule 1(b) accommodates the situation where the Defendant threats or intend to remove or dispose off his property with a view to defraud his creditors. (The emphasize here is "fraud his creditors"). Now in those situations prescribed under Rule 1 (a) and (b), this court has been given the discretionary power to issue and order for a temporary injunction pending determination of the main suit. However, to speak on Rule 2(1), the same also prescribes other circumstances where the court may issue temporary injunction. As alluded above, Rule 1(a) serve different purpose compared with Rule 1(b) and 2(1). Those sub rules pointed above are not for cosmetic purpose rather save for the specific and certain purpose in the law. Thus it is the citation of the specific relevant law which gives the court power to and jurisdiction to grant the prayer or relief sought. The snag before me is whether in the present case, the Applicants have cited specific relevant provision of the law which gives the court jurisdiction to grant the relief or order sought. In order for the court to determine as to whether this court has been clothed with the proper citation or not, the court has to peruse the four corners of the Affidavit supporting the Application. Having gone through the same, Paragraphs 7 and 8 of the Applicants' Affidavit states: "That, since matter was reported to the relevant Authorities>and various follow up were made thereto for the sake o f amicable settlement, but the Respondents were adamant and they are still holding, selling, building, and destructing properties thereto. That, there is a pending suit before this honorable court and that unless this injunction is granted, the purpose of the suit will be rendered one o f the academic exercise and that the matter will not be finally determined with the inclusion o f the new buyers." From the above assertion from the Applicants' own Affidavit, I am of the firm view and opinion that the Applicants' application for temporary injunction in the instant situation squarely fall under the premises of Order XXXVII Rule 1 (a) and not under Order XXXVII Rule 1 (b) of Cap. 33 (Supra). Since an error to cite incorrect provision of law is not a technical one but a fundamental matter which goes to the root of the matter, therefore I find that the present Application is based on wrong legal foundation, hence is bound and deserves to collapse. (SEE THE COURT OF APPEAL OF TANZANIA (DSM) CIVIL APPLICATION NO. 128 OF 2006, EDWARD BACHWA & OTHERS V. THE ATTORNEY - GENERAL & ANOTHER). In the event and for the reason stated, I find the present Application incompetent to move the court for want of indicating proper citation of law, which in the instant Application is Rule 1(a) of Order XXXVII (Supra). Having found that the Application is incompetent, I really find no valid reason to discuss the merits or otherwise of other points of preliminary objections mentioned above; since would be a vain exercise. Thus, the Application is hereby struck out with costs. It is so ordered. L. E. MGONYA JUDGE 20/07/2018 COURT: Ruling delivered in the presence of Applicants in person, Advocate Tuguta for Respondents and Ms. Theresia B/C on 20th day of July, 2018 in chamber No. 17. L. E. MGONYA JUDGE 20/07/2018 8