20060310 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 166 OF 2005 In the Matter of an Intended Appeal INGOMA HOLDINGS LIMITED ............................................ APPLICANT

VERSUS KAGERA COOPERATIVE UNION (1990) LIMITED] JACKEM AUCTION MART & BROKERS LIMITED ] ......... RESPONDENTS (Application for an order of injunction restraining the respondent from evicting the appellant from the landed property occupied by the appellant pending hearing of Civil Appeal No. 48 of 2003 from the Ruling and Order of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Dr. Bwana, J) dated the 30 th day of June, 2003 in Commercial Case No. 55 of 2003 RULING ' ~ ~ .... KAJI, J.A.: -<~::~igI~-'-~--- - By a ootice of motion filed under Rule 3 (2) of the Court of Appeal Rules, 1979, the applicant, Ingoma Holding Ltd, is moving the Court to issue an order of injunction against the respondents, Kagera Co-operative Union (1990) Ltd. and Jackem Auction Mart & Brokers Ltd, restraining them from threatening and/or evicting the applicant from the premises which are the subject matter pending in Civil Appeal No. 48 of 2003 before this Court. I '1 -.. .. I It will be helpful to give a brief background to the application as deponed by Beatrix Mugishagwe, the applicant's director, and elaborated by the applicant's counsel, Mr. Rutabingwa. The applicant was or is still the tenant over two hotels namely, Lake Hotel and Coffee Tree Inn, belonging to the first respondent, under an investment agreement between the applicant and the first respondent. Pursuant to the said

investment agreement, the applicant was to occupy and operate the two hotels for a period of twenty years. A dispute arose which culminated into filing of Commercial Case No. 55 of 2003. The first respondent raised a preliminary objection which was disposed off, and the suit was dismissed, and the applicant lodged Civil Appeal No. 48 of 2003 which is pending before this Court . . Upon filing of the said appeal, the applicant filed an application for stay of execution but was dismissed on the ground that the High Court Commercial Division ruling and order were not capable of being executed and there was nothing to be stayed. Hence this application. ,.., .J It is the learned counsel's submission that, if the respondents are not restrained from evicting the applicant, and the eviction is carried out, the applicant will suffer greatly than the respondents as per the investments made, and the pending appeal will be frustrated; and further that, in the event the applicant's appeal succeeds, the respondents will not be able to compensate the damages to be suffered by the applicant. On his part, Mr. Lutema, learned counsel for the respondents resisted the application on the ground that it is just the same application which was dismissed by this Court but only that it has changed the title from stay of execution to an injunction. The learned counsel contended that, if the applicant is

evicted and at the end of ~e day the appeal succeeds, the respondents will be able and ready to compensate the applicant adequately in monetary terms. On balance of convenience, the learned counsel contended that, it is the respondents who will suffer more if the order applied for is granted than the applicant if the order applied for is not granted, because the applicant will continue in occupation with arrears of rent for three years. The learned counsel further pointed 4 out that, the application has been overtaken by events because the 1st respondent has already moved into occupation since 15.11.2005. In a rejoinder Mr. Rutabingwa insisted on the merit of the application and that, since the application was filed before the 1st respondent moved in occupation, the 1st respondent can be forced out by a Court order. As demonstrated earlier, the appellant had first applied for stay of execution under Rule 9 (2) (b) and 45 of the Court of Appeal Rules. The application was dismissed on the ground that the order applied to be stayed is not capable of being stayed because "it simply and rightly directs the applicant to file the rent dispute in the Regional Housing Tribunal which deals with assessment of rent." The applicant thereafter filed this application under the provisions of Rule 3 (2) of the Court of Appeal Rules, 1979. There are three situations described under Rule 3 (2).

They are laid down in (a), (b) and (c). The learned counsel for the applicant did not specify whether the application is under (a) (b) or (c). He sort of gambled. All the same, the applicant is seeking an injunction order 5 against the respondents restraining them from threatening and/or evicting the applicant from the premises which are the subject matter pending in Civil Appeal No. 48 of 2003. Generally speaking, the principles governing stay of execution, are not very much different from those governing an injunction order pending determination of an appeal, that is: (i) Whether the refusal to grant injunction order is likely to cause substantial and irreparable injury or loss to the applicant, (ii) Whether the injury or loss cannot be atoned by damages, (iii) Whether, prima facie, the appeal has likelihood of success, ((v) Balance of convenience. In the instant case, it would appear, in the main case the whole matter hinges on breach of tenancy agreement. The parties are quarrelling over payment of rent. The 1st respondent is now threatening to evict the applicant from the suit premises. Indeed if the applicant is evicted is likely going to suffer some loss, and possibly essential loss. But, in my view, there is nothing suggesting 6 that the loss or injury can be irreparabie and cannot be atoned by damages. On whether prima facie the pending appeal has likelihood of

success, what I can say at this stage is that, the informations available are not sufficient to .give a rational answer. This will come to light when the appeal itself is heard. Learned counsel of both parties submitted also on the question of balance of convenience. Indeed if evicted the applicant is likely to suffer some inconveniences. It may be substantial inconveniences. At the same time if the order applied for is granted the 1st respondent will also suffer some inconveniences. It may be substantial inconve·niences. As pointed out earlier on, the main quarrel aF'pears to be a breach of tenancy agreement. The 1st respondent is blaming the applicant for failing to pay rent for three years. If the order applied for is granted the 1st respondent will go rentless for another endless period. I say endless period because it is not known when the appeal will be heard. It would appear the suit premises, Lake Hotel and Coffee Tree Inn are among the 1st respondent's economic ventures (vitega uchumi). In that respect, in 7 . my view, if the 1st respondent will go rentless for another unspecified period, the 1st respondent will be more inconvenier1ced than the applicant will, if the order applied for is not granted. There was a word from the bar by the respondents' counsel that the tenancy agreement has now expired, which was contested by the applicant's counsel. The best I can say is

that, it is not my concern to say anything on this at this stage. Lastly, the remedy which is sought in this application is Very similar to the one sought in Civil Application No. 87 of 2003 which was dismissed by a Single Judge of the Court (Munuo, JA) on 25.1.2005. It was for an order to restrain the respondent from repossessing Lake Hotel and Coffee Tree Inn pending determination of the appeal. In dismissing the application the learned Single Judge observed: It is my considered view that the order in Commercial Case No. 55 of 2003 is not capable of being stayed because it simply and rightly directs the applicant to file the rent dispute in the Regional Housing Tribunal which deals with assessment of rent. That 8 . being the position, the present application for an injunction to restrain the respondent landlord from repossessing the two hotels is ... (omitted in Annexture D). In the light of the above, the application is dismissed with costs." I am somehow tempted, although somehow remotely, to think that, in the instant application, it is the same "gentleman" as in the previous application but dressed in different attire. In the end result, and for the reasons stated, I dismiss the application with costs. DATED at DAR ES SALAAM this 10th day of March, 2006. S. N. KAJI

JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. DE