ISSA RAJABU MGALA VS TANZANIA AIRPORTS AUTHORITY AND OTHERS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. LAND APPLICATION NO. 29459 OF 2024 (C/F Land case No. 21950 of 2024 of the High Court, Moshi Sub Registry) ISSA RAJABU MGALA ............................................ 1ST APPLICANT KIMANGANO LEONARD MDEE ………………………. 2ND APPLICANT ATHUMANI JACOB MWANGA ………………………… 3RD APPLICANT SAIDI RASHID NDOILE ........................................ 4TH APPLICANT ABJADI LAWENA MKWIZU ……………………….….. 5TH APPLICANT PAULI EDUADI MAGWERO ……………………….…. 6TH APPLICANT RAMADHANI HOSEN JUMA …………………………. 7TH APPLICANT ADAM RAMADHANI MAHANYU ………….………… 8TH APPLICANT BEATRICE PHILIP MSOFE………………………….... 9TH APPLICANT 1 MACHAKU ALI MDEE ......................................... 10TH APPLICANT VERSUS TANZANIA AIRPORTS AUTHORITY……………… 1ST RESPONDENT KILIMANJARO AIRPORTS DEVELOPMENT COMPANY (KADCO) ......................................... 2ND RESPONDENT COMMISSIONER FOR LAND .............................. 3RD RESPONDENT PERMANENT SECRETARY MINISTRY OF WORKS, TRANSPORT AND COMMUNICATION ................ 4TH RESPONDENT HON. ATTORNEY GENERAL ……………………..... 5TH RESPONDENT RULING 05/03/2025 & 02/04/2025 SIMFUKWE, J. The applicants under certificate of urgency are seeking for ex parte and inter parties’ orders under Order XXXVII Rule 1 and section 95 of the Civil Procedure Code, CAP 33 R.E 2022 (CPC) as follows: EX – PARTE 2 1. That, this honourable court be pleased to grant to the applicants an order for temporary injunction against the 2nd respondent, their agents, assignees, relatives and whoever is acting on their directives or instruction from restraining, harassing, assaulting, evicting, seizing livestock, and destroying crops or in any manner interfering with the Applicants’ peaceful occupation, use and enjoyment of the suit premises, pending the determination of the main application inter parties. 2. Any other relief that this honourable court may seem just, equitable and fair to grant. INTER- PARTIES 1. That, this honourable court be pleased to grant the applicants an order for temporary injunction against the 2nd respondents, their agents, assignees, relatives and whoever is acting on their directives or instruction from restraining, harassing, assaulting, evicting, seizing livestock, and destroying crops or in any manner interfering with the Applicants’ peaceful occupation, use, and 3 enjoyment of the suit premises, pending the determination of the main application inter parties. 2. Any other relief that this honourable court may seem just, equitable and fair to grant. The application is supported by an affidavit sworn by the applicants. In their supporting affidavit the applicants deponed inter alia that the applicants herein are the plaintiffs and the respondents herein are defendants in Land Case No. 27608 of 2024 which is pending before this court. They prayed for temporary injunction against the respondents in order to maintain the status quo. The applicants were of the view that, if temporary injunction is not granted, they will suffer irreparable loss. The respondents contested the application by filing counter affidavit sworn by one Gasper Dominic Chovela, Senior Estate and Environment Officer of the 1st Respondent. Mr. Gasper deponed among other things that people who had encroached into KIA’s land, including the applicants were evicted since April 2024 and were paid “kifuta jasho” (token). Further, it was agreed while being evicted that those who had cultivated the land should be allowed to harvest the crops. Surprisingly, those who 4 were allowed to harvest their crops by then, have returned to the disputed land. During the hearing of the application inter-parties, the applicants were represented by Ms. Fransisca A. Lengeju, learned counsel from Legal and Human Rights Centre, whereas the respondents were represented by Mr. Yohana Marco, learned State Attorney. Supporting the application, Ms. Francisca explained that the applicants are residents of Chemka and Rondugai Village within Hai District, in Kilimanjaro Region. She purported that the applicants are rightful occupants of the disputed land which they have used for generations. That, the matter subject of this application is currently pending before this court in Land Case No. 21950/2024. The learned counsel quoted Order XXXVII rule 1(a) of the Civil Procedure Code (supra) which provides that: “1. Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss 5 of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree….” (Emphasis added) Based on the quoted provision, she was of the view that the applicants’ land was in danger of being wasted, as the 2nd Respondent through their agents had unlawfully entered the disputed land, arrested four farmers, seized farming tools, medicine, livestock, and caused unrest among the community. That, such actions are being carried out without any legal justification and in total disregard of the pending case before the Court. That, if not restrained, the unlawful interference will irreversibly affect the livelihood and food security of the applicants and other villagers. Citing the case of Atilio v. Mbowe (1969) HCD No. 284, the learned advocate submitted that the applicant seeking temporary injunction must satisfy to the court existence of three elements to wit: (i) There must be a serious question to be tried by the court and a probability that the plaintiff will be entitled to the reliefs prayed for in the main suit; (ii) That, the temporary injunction sought is necessary to prevent some irreparable injury befalling the plaintiff pending the main case; and 6 (iii) That, on balance of convenience, greater hardship and mischief is likely to be suffered by the plaintiff if temporary injunction is withheld than may be suffered by the defendant if the order is granted. Arguing the first condition for granting temporary injunction, Ms Fransisca submitted that, a prima facie case is determined by examining the supporting affidavit. She said the applicants at paragraphs 2 to 5 of their affidavit, asserted that they are the plaintiffs in Land Case No. 27608 (sic) of 2024 pending before this court. She argued that despite the matter being sub judice, the 2nd Respondent through its agents had unlawfully entered the land, arrested farmers, and seized farming tools, medicine and livestock. She commented that these actions establish a prima facie case with a probability of success. On the issue of irreparable loss, the learned counsel contended that the disputed land, is located in a prime area with fertile soil, ideal for agricultural activities. She argued that the unlawful actions of the 2nd respondent had already led to food shortages, as last year’s crops were not cultivated. She claimed that further disturbances would worsen food insecurity in the area, causing irreparable harm to the community. It was 7 asserted further that granting a temporary injunction will not cause any harm to the 2nd respondent, while it will maintain the status quo. Regarding balance of convenience, Ms. Fransisca submitted that the applicants stand to suffer more than the respondents if the injunction is not granted. She insisted that the applicants’ agricultural activities will be severely disrupted. On the other hand, the 2nd respondent will not suffer any hardship if the injunction is granted. She fortified her submission by citing the case of Anna Investment Co. Ltd & 3 Others v. National Microfinance Bank Plc (Misc. Land Application 465 of 2021) [2021] TZHC Land 6818 (10 December 2021), and the case of Christopher P. Chale vs. Commercial Bank of Africa, Misc. Civil Application No. 635 of 2017 (unreported). In conclusion, Ms. Fransisca urged the court to grant the application. In his reply, Mr. Yohana on the outset stated that he had noted some fatal anomalies in the submission of the applicants. That, most of the submitted facts have not been stated in the affidavit of the applicants which renders the impugned submission devoid of purpose. He argued that permissible submissions are those of which the court is entitled to take judicial notice. That is evidence already tendered and arguments on 8 the applicable law, as it was held in The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government & 4 Others, Civil Appeal No. 147 of 2016 and Maulid Shaban v. Temeke Municipal Council & Another, Misc. Land Application No. 289 of 2020. He opined that the applicants’ submission should be disregarded in relation to facts. Arguing against the application, the learned State Attorney adopted the respondents’ counter affidavit to form part of their reply. He agreed with the applicants on the applicability of Order XXXVII Rule 1(a) of the Civil Procedure Code (supra) in applications of this nature. However, he disputed its applicability in this case and the applicants’ satisfaction of the requirements outlined in Atilio v. Mbowe (1969) HCD No. 284. Regarding presence of prima facie case, Mr. Yohana stated that there was no any serious question to be tried by the court. He cited the case of Abdi Ally Salehe v. Asac Care Unit Ltd & 2 Others, Civil Revision No. 3 of 2012, which held that a prima facie case requires a bona fide contest between parties. He emphasized that Order XXXVII Rule 1(a) of the CPC emphasizes existence of a suit, for a temporary injunction to be 9 granted as it was held in The Trustees of Sunni Muslim Jamaat v. Sayed Mazar Kadir & Another, Civil Appeal No. 18 of 2002, by the Court of Appeal, that a temporary injunction requires a pending suit. In the present matter, the learned State Attorney submitted that there is no proof of existence of a suit. That, Land Case No. 27608 of 2024, cited by the applicants, did not exist, and that the actual case was Land Case No. 21950 of 2024, involving a different number of plaintiffs. He faulted the applicants for failure to file a reply to the counter affidavit to rectify the discrepancy. He argued that this mistake rendered the application incompetent. On the issue of irreparable loss, the learned State Attorney contended that, without a main suit, this requirement cannot be determined. He cited the case of Abdi Ally Salehe (supra), which defined irreparable loss as one which cannot be atoned by award of damages. He also referred to the definition in Black’s Law Dictionary, 12th Edition to elaborate more. According to Mr. Yohana, the only reference to irreparable loss is found under paragraph 5 of the applicants’ affidavit which alleges that the disputed land being ancestral one and the primary source of their 10 livelihood is likely to be lost permanently. However, he pointed out that under paragraph 7 of the respondents’ counter affidavit it is stated that all persons including the applicants herein had already been evicted from the disputed land since April 2024. The fact has not been denied by the applicants because they have not filed their reply to counter affidavit. Moreover, the learned State Attorney argued that Tanzanian land laws do not recognize ancestral land but only granted rights of occupancy (GRO), customary rights of occupancy (CRO), and derivative rights of occupancy (DRO). That, the applicants have neither stated whether there are buildings nor other structures which are likely to be demolished without being valued for compensation and the like. The same renders the loss if any remediable by award of damages under the Land Acquisition Act which was enacted to enable the government to legally acquire lands for public interest. It was explained that no land in Tanzania is exempted from the application of the Land Acquisition Act. Apart from that, based on the fact that the applicants have already been evicted long ago, the question of livelihood dependency on the land in question does not arise. Hence, there is no loss in the applicants’ affidavit that cannot be compensated in monetary form. 11 On the last condition of balance of convenience; Mr. Yohana submitted that the respondents shall suffer greater harm if the application is granted. He referred to paragraph 8 of the counter affidavit where the respondents stated that human activities around Kilimanjaro International Airport disrupted operations and flight schedule. The learned State Attorney gave an example of dry seasons in which strong winds carry large amount of dust which impair airfield visibility during take-off and landing. In addition, he said that, the disputed land has a registered title deed owned by the 1st Respondent, which has not been contested. Mr. Yohana was of the view that given the applicants' prior eviction from the disputed land, it is incomprehensible to claim irreparable loss. The argument was buttressed by further reference to the cited case of Abdi Ally Salehe (supra) at page 8 where it was held that: “When all the above minimal conditions are established, the court, before deciding one way or another should then consider other factors, such as the conduct of the parties, delay, acquiescence, lack of clean hands etc. This is because, as seen above, the remedy of injunction has its roots in equity and so, equitable principles may be applied in appropriate cases.” 12 In the case at hand, Mr. Yohana noted that under paragraph 7 of the respondents’ counter affidavit it is stated that the applicants were paid “kifuta jasho” and they received it acquiescently. That, coming back to protest the overall process while they had earlier on agreed, makes the applicants the people of unclean hands. He insisted that the doctrine is crucial as the grant of temporary injunction is one of the equitable remedies. Mr. Yohana concluded that for temporary injunction to be granted all of the prerequisite conditions must be met. He was of the opinion that the applicants have not met all of the conditions which make this application devoid of merit. He prayed the application to be dismissed with costs. Having gone through the submissions of both parties, the affidavit and counter affidavit, the issue for determination is Whether the applicants have established the outlined conditions for the temporary injunction to be granted. section 68 (e) of the CPC provides that: 13 “In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf- (e) make such other interlocutory orders as may appear to the court to be just and convenient.” Temporary injunction is among the interlocutory orders referred under section 68(e) of the CPC (supra). For temporary injunction to be granted, conditions propounded in the land mark case of Atilio v. Mbowe (supra) must be met. Starting with the condition of presence of prima facie case, according to what has been submitted by both parties, it is undisputed fact that there is a pending Land case involving the same parties except that the number of the main case is disputed by the learned State Attorney. In their supporting affidavit, the applicants referred to Land Case No. 27608 of 2024. At paragraph 4 of the counter affidavit, the respondents stated that Land Case No. 27608 of 2024 does not exist. However, they clarified that they are aware of Land Case No. 21950 of 2024, which is pending before this court. I have searched in the electronic management system and satisfied myself that the pending main case between the parties is Land Case No. 21950 of 2024. It is true that Land Case No. 27608 of 2024 does 14 not exist in the system even between different parties. I am of considered opinion that the anomaly can be ignored under the overriding objective principle (oxygen principle). See Security Group T. Limited vs Steven Gerson Kizinga (Consolidated Appeal No. 386 of 2020 & 50 of 2021) [2024] TZCA 107 (23 February 2024) at page 11 first paragraph. Therefore, substantive justice being a priority, I am of considered opinion that the first condition for granting temporary injunction has been met as there is a pending matter. On the second condition Whether the applicants will suffer irreparable loss if the temporary injunction is not granted; at paragraph 3 of the affidavit of the applicants it has been deponed that: “That, the 2nd Respondent, through their agents have unlawfully entered the disputed land, arrested four (4) farmers, seized farming tools, medicine and livestock (goats), and caused unrest among the Applicants and the surrounding community.” At paragraph 5 of the affidavit, the applicants stated that: 15 “That, the Applicants stand to suffer irreparable harm if the 2nd Respondent and his agents are not restrained, as their ancestral land and primary source of livelihood are at risk of permanent loss.” On their side, the respondents denied the averment of the applicants. At paragraph 7 of the counter affidavit, they stated inter alia that all persons who had encroached into KIA’s land, including the applicants, have already been evicted since April 2024 and were paid “kifuta jasho” (token). Assuming that the applicants are lawful owners of the disputed land, does the act of depriving them of their ownership of the said land cause irreparable loss? Section 3 (1) (a) to (o) of the Village Land Act, Cap 114 provides fundamental principles of the National Land Policy. The principles include: “3 (1) (g) to take into account that an interest in land has value and that value is taken into consideration in any transaction affecting that interest; (h) to pay full, fair and prompt compensation to any person whose right of occupancy or recognised long-standing 16 occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act;” Emphasis added Based on the quoted provision of the Village Land Act, interference of use of land by the State is subject to compensation. Moreover, the National Land Policy recognizes that an interest in land has value and the law requires that value to be taken into consideration in any transaction affecting that interest. Thus, in case the main case is decided in favour of the applicants, their loss of that particular land is not irreparable. The land and anything attached to it have value which can easily be compensated by the State. Therefore, the second factor for granting temporary injunction has not been established by the applicants. On the last condition of balance of convenience, as I have noted herein above, the applicants have stated in their affidavit at paragraph 5 and 8 that if the injunction is not granted their ancestral land and primary source of livelihood is at risk of permanent loss while the order may not affect anything from the respondents’ side. On part of the respondents, at paragraph 8 of their joint counter affidavit, they stated that human 17 activities which include grazing and farming, degrade the soil of KIA area. As a result, during dry seasons, strong winds carrying large amount of dust in the air impair visibility for aircraft during landing and take off. That, the same has resulted in the diversion of some international flights to other airports, causing financial loss to both, the airport and airline operators. That, the same tarnishes the reputation of the airport and the country. On balance of convenience as the phrase sounds, I am of the opinion that the respondents are likely to suffer more compared to the applicants whose loss may be reparable. In that sense, the applicants have not met the third condition for them to be granted temporary injunction. Based on the fact that the applicants have failed to meet two of the conditions of granting temporary injunction, I hereby dismiss this application without costs. It is so ordered. DATED and DELIVERED at Moshi this 02nd day of April 2025. 18 X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 02/04/2025 19