john alex kapama versus ubungo municipal council 2 others 2023 tzhclandd 16743 27 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION N0.312 OF 2023 JOHN ALEX KAPAMA APPLICANT VERSUS UBUNGO MUNICIPAL COUNCIL RESPONDENT COMMISSIONER FOR LANDS 2'^'^ RESPONDENT ATTORNEY GENERAL 3*"^ RESPONDENT RULING Date ofLast Order: 05. 07.2023 Date ofRuling: 27.07.2023 T. N. MWENEGOHA,J. The applicants sought for an Injunction Order against the respondent, and any person working for his or under her instructions,from trespassing and building classrooms on Plots No, P51, P52 and P53, located at Goba Mpakani/Mtambani Area, Goba Ward, Ubungo Municipality, Dar es Salaam, pending the expiry of 90 days'Statutory Notice, issued to the to 3^^ respondents. The order has been preferred under Section 2(1) & (3) of the Judicature and Application of Laws Act, Cap 384, R. E. 2019 and Section 95 of the Civil Procedure Code, Cap 33 R. E. 2019. It was supported by the affidavit of the applicant, John Alex Kapama. The Application was heard by way of written submissions. Advocate Rajabu Mrindoko appeared for the applicant and Lilian Samson Mirumbe, learned State Attorney, appeared for the respondents. In his submissions, Mr. Mrindoko was of the view that, this being a Mareva Injunction, the applicant has satisfied the conditions needed before allowing it. That, there is no pending suit between him and the respondent, but the 90 days'notice of the intention to suit the government has been served to them. Further, that the applicant has satisfied the other three conditions needed before granting injunctive orders as stated in Atilio versus Mbowe,(1969), HCD 284. That, the applicant has a shown in his affidavit of a likelihood of an intended suit to exist and succeed. Therefore, he has a legal right over the land he claims to have been invaded by the respondent. That, the said land is owned by the applicant and the respondent has trespassed on it. Therefore, if this application is denied, the applicant will suffer irreparable loss. Such loss cannot be compensated by monetary damages. The applicant will lose his land. That, on balance of convenience, it is the applicant who stand to suffer greater harms than the respondents if the Application is denied. He informed the Court that in the suit land, the applicant has already put building materials. If the respondents are not restrained from carrying on their activities on the suit land, the applicant's building materials will be lost. In reply, the learned State Attorney for the respondents, insisted that, the Application should be denied. That, the applicants have not met the tests given in Atilio versus Mbowe,supra. That, for an order of Injunction to be allowed, the applicant has to establish to the satisfaction of the Court that, all three conditions given in the Atilio vs. Mbowe's case, (supra), do exist in his favour. That, in the Application at hand, there is no serious question of facts in need of the Court's determination. That, the land, forming the subject matter of this Application belongs to the respondent. She acquired it from one Ally Ahmed Chande, after compensating him. As for the 2"*^ ruie, it was the argument that even if the Application is denied, the applicants will not suffer any irreparable loss. It was argued further that the applicant was supposed to provide evidence of a loss likely to happen on his part as stated in Hotel Tilapia Ltd versus Tanzania Revenue Authority, Commercial Case No. 2 of 2000, High Court of Tanzania,(unreported). On balance of convenience, it was argued that it is the respondents who stand to suffer more than the applicants if the Application is ailowed. That, it is clear that, the loss to be incurred to the appiicant can be compensated by the respondents, but the applicant cannot compensate the respondents for the loss to be incurred to her if the Application is allowed. Having gone through the submissions of both parties through their learned counsels, the question for determination is whether the Application has merits or not. Yes, as argued by the applicants' counsel, this Application is in the nature of Mareva Injunction, see Mareva Companies Naviera SA versus International Bulkcarriers SA,(1980)1 All ER 213. It has been preferred, in absence of any pending suit, rather pending the expiry of 90 days' Statutory Notice of intention to sue the government. The said notice has already been served to the government as stated under paragraphs 16 & 17 of the applicant's Affidavit. As the applicant have already taken steps towards suing the respondents, his interests in the suit land needs to be protected. This is done for the purpose of attaining the end of justice to both parties. Guided by the decision of the Court given in Abdallah M. Maliki & 545 Others versus Attorney General & Another, Misc. Land Application No.ll9 of 2017, High Court of Tanzania at Dar es Salaam, (unreported), I find the Application at hand to have merits. In the upshot, I allow the same and advise the applicant to institute his intended suit immediately after the expiry of the 90 days' notice of intention to sue the government. Also, to file a fresh Application for Injunction pending the main suit. No order as to costs. It is so ordered. T. WENEGOHA o JUDGE / KJ >27/07/2023 :-n- ! ^ .