imtiaz hussein bhanji v dilshad hussein bhanji another 2023 tzhclandd 16533 31 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.lll OF 2023 (Originating from Land Case No.31 of 2023)

IMTIAZ HUSSEIN BHANJI APPLICANT

VERSUS DILSHAD HUSSEIN BHANJI 1®^ RESPONDENT KARIM HUSSEIN BHANJI Z"" RESPONDENT

RULING Date ofLast Order: 18.05.2023 Date ofRuling: 31.052023 T. N. MWENEGOHA,J. This Is an Application for Temporary Injunction, made under Order XXXVII Rule 1(a), 2(1) and 3, Order XLIII Rule 2, Sections 68(e) and 95 of the Civil Procedure Code, Cap 33 R. E.

2019. The applicant has prayed among others, an interim order, restraining the respondents and any other persons working under their instructions,from evicting, selling, disposing, alienating the applicant in any manner whatsoever, from the suit property. Plot No. 14, Block 53, located at Kipata Area, Kariakoo, Ilaia, within Dar Es Salaam Region, with Certificate of Tittie Number 186107, pending the hearing and determination of Land Case No. 31 of 2023. The application was supported by the affidavit of applicant, Imtiaz Hussein Bhanji. The same was heard by way of written submissions. The applicant was represented by Advocate Tarzan Kenneth Mwaiteleke, while Advocate Amon Crescent Ndunguru appeared for the respondent. However, as I was composing this Ruling, I came across an anomaly which in my opinion, touches the competence of this Application. The same is on the chamber summons. That, the enabling provisions used in the chamber summons, do not show exactly what the applicant needs, although both are for injuction. In his application, the applicant has used Order XXXVII Rule 1 (a), 2(1) and Order XLIII Rule 2. Also, section 68(e) and 95 of the Civil Procedure Code, Cap 33 R. E.

2019. The parties were ordered to address the Court on this issue and they compiled. I appreciate and have considered the arguments of the counsels for the parties regarding the anomality noted. For the purpose of saving time, I will not reproduce them in this Ruling, though I will take them on board in considering the met of the submissions. As pointed before, in this Application, the applicant was not specific on the remedy he is seeking before this Court. I will reproduce the provisions used by the applicant in his chamber summons, starting with Order XXXVII Rule 1(a) as follows; - 1. "Where in any suititis proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged, or aiienated by any party to the suit ofor suffering ioss of vaiue by reason ofits continued use by any party to the suit, or wrongly soid in execution ofa decree". Under this provision, Injunction will be given to the applicant if the suit property is being wasted or damaged, alienated or disposed by the respondent. The Court will interfere to protect the suit property from being suit property until the suit is finaiised. On the Other hand. Order XXXVII Ruie 2(1) is concerned with contracts. It restrains a party from breaching or continuing to breach the agreement between him and the applicant. It reads as here under; - 2.-(l) "In any suit for restraining

the defendant from committing a breach ofcontract or other injury ofany kind, whether compensation is ciaimed in the suit or not, the piaintiff may, at any time after the commencement of the suit and either before or afterJudgment, appiy to the court for a temporary injunction to restrain the defendant form committing the breach ofcontract or injury compiained of, or any breach ofcontract or injury ofa iike kind arising out of the same contract or reiating to the same property or right". Lastly, Section 68(e). This one is a general provision, giving discretionary powers to the Court to grant any interlocutory order when necessary for the Interests of justice. The same provides as follows;- 68. "In order to prevent the ends ofjustice from being defeated the court may,subject to any ruies in that behaif- (e)make such other interiocutory orders as may appear to the court to bejustand convenient". The Applicant was supposed to be specific In his application as to what remedy exactly he needs this Court to grant. He ought to have chosen between the reliefs given under Order XXXVII Rule 1(a) or Rule 2(1) supra. His failure to specify as to what he wants, leaves this court in suspense, not knowing what is being prayed for between the two remedies available in the provisions cited above. This is a mistake. A fatal mistake in my settled view. I say so, because a Court cannot decide any matter when it is at a blind sport. Tlierefore, I find this Application to be incompetent. Eventually, I proceed to strike it out with no order as to costs. It is so ordered. T. N^^M^ENEGOHA

JUDGE 31/05/2023 3iJ m ^7. C.-. i — —