SCANNED Misc

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION No. 4154 OF 2024 HUSSEIN YUSUPH KINGAZI................................. 1st APPLICANT HAMZA MOHAMED BENDERA.............................. 2nd APPLICANT NASSOR LAMIN MSHEWA.................................... 3rd APPLICANT ASHA MOHAMED KITOGO.................................... 4th APPLICANT KITOGO ALLY PUTE.............................................. 5th APPLICANT JULIUS EXAUD MFANGANO.................................. 6th APPLICANT DAMSON ERNEST LYIMO..................................... 7™ APPLICANT EDNA SALIM MDUMA........................................... 8th APPLICANT VERSUS HONOURABLE ATTORNEY GENERAL............... 1st RESPONDENT TANZANIA NATIONAL ROADS AGENCY........... 2nd RESPONDENT RULING 24 &29" April, 2024 L, HEMED, J. This is an application for mareva injunction brought under section 2(1) and (3) of the Judicature and Application of Laws Act [Cap.358 R.E 2019] and section 95 of the Civil Procedure Code, [Cap.33 R.E 2019]. In the instantaneous matter, the applicants, HUSSEIN YUSUPH KINGAZI, HAMZA MOHAMED BENDERA, NASSOR LAMIN 1 MSHEWA, ASHA MOHAMED KITOGO, KITOGO ALLY PUTE, JULIUS EXAUD MFANGANO, DAMSON ERNEST LYIMO and EDNA SALIM MDUMA are before this court seeking for an order:- "... That this honourable Court be pleased to make an order that status quo in respect of the Applicants' properties claimed to be on road reserve, be maintained pending the institution, hearing and determination of the land case to be filed after the expiry of 90 days statutory Notice and government..." The Application has been supported by the joint affidavit of the applicants. The Respondents who are HONOURABLE ATTORNEY GENERAL and TANZANIA NATIONAL ROADS AGENCY, have challenged the application through the counter affidavit of ENG. JAPHERSON MICHAEL NNKO. The application was heard by way of written submissions. The applicants' submissions have been duly drawn and filed by Mr. Lusajo Watson Mwakasege, learned advocate. The respondents enjoyed the service of Ms. Hosana Mgeni, learned State Attorney. The Applicants have averred to be the owners of the suit properties located in Kimara Bonyokwa-Kinyerezi Road at Mavurunza, Ubungo Municipality in Dar es Salaam. According to the affidavit, the applicants have been 2 using the suit properties for residential and business purposes for many years. They are thus in this court to seek for restraint orders against the respondents from demolishing the applicants' houses as per the 30 days' notice issued to them. In response thereto, the learned State Attorney contended that the applicants' affidavit and submissions do not establish prima facie case to warrant this court to grant of the Application. In her view, the applicants have unjustifiably built their houses in road-reserved area. She insisted that if the applicants will be granted the order sought the Government is going to lose public money which was set for construction. I have gone through the rival affidavits and submissions made by the parties herein. The question for determination is whether the application has merits and thus worth to be granted. It is settled law that in application for injunctive orders, including those brought under mareva applications, like the one at hand, must meet the conditions established in the famous case of Atilio vs. Mbowe (1969) HCD 284. The said conditions are as follows:- Z There are must be serious question of facts to be tried (Primafacie case); 3 ii. The Applicant must show that will suffer irreparable loss which cannot be adequately remedied or attained by damages if the order sought is not granted. iii. On balance of conveniences, it has to be demonstrated that the Applicant will suffer greater loss than the respondent (s) if an order for temporary injunction is not granted. Let me start with the first condition on presence of primafacie case. I have gone through the affidavit deponed to support the application and found that the applicants are challenging the 30 days notice issued to them by the 2nd Respondent for demolition of their buildings and for them to vacate from the suit land. They assert to be the lawful owners of the said pieces of land. On their part, the respondents claim the suit land to be the road reserve and they demand the applicant to vacate therefrom. The rival claims of the parties are the one in my view that establish the prima facie case. There is a question to be determined between the parties as to whether the suit land falls in the road reserved land and 4 whether the applicants are lawful occupiers in the said land. This being the case, it is thus obvious that a prima facie case has been established by the applicants thus meeting the 1st condition. The 2nd condition is for the applicants to demonstrate the possibility of suffering irreparable loss. The court has insisted in plethora of decisions that the court to grant temporary injunction, the loss should not be capable of being remedied by damages. One of the decision is that of this court in Kaare vs General Manager Mara Cooperative Union[1924]Ltd [1987]TLR 17, where Mapigano,J held that:- "The court should consider whether there is an occasion to protect either of the parties from the species of injury known as "irreparable injury" before right can be established...By irreparable injury it is not meant that there must be no physical possibility but merely that the injury would be material, for example one that could not be adequately remedied by damages." In the instant case, the applicants have stated to have their houses, which they use as their homes and some for businesses. They have asserted to lose their homes in case the 2nd Respondent will be left to carry out its intention of demolishing their houses. In my view, loss of home is one of the irreparable losses that cannot be adequately be remedied by damages because it is normally associated with mental 5 anguishes. I am thus being persuaded that the applicants have demonstrated the possibility for them to suffer losses that cannot easily be compensated if the demolition will be carried out. From the foregoing I find the second condition to have been met. The 3rd condition is on balance of inconveniences between the parties to the instant matter. I have considered what is going to happen if the application is refused and found that the respondent will be at liberty to demolish the applicants' dwelling houses which may result into loss of homes on the part of the applicants. It is also a fact that, if the application is granted, then the plans of the respondents over the suit land will be suspended for the period of statutory notice that is not exceeding 90 days. By comparison, the applicants are the ones who are to suffer most if the application is refused than the respondents if is granted. In the final analysis, I find merits in the application as it has met all conditions stated in Atilio vs Mbowe (supra). I hereby grant the application with no orders as to costs. DATED;^TlOlES SALAAM at 29 April, 2024. JUDGE 6