Juma Fungameza and Others vs The Office of Attorney General and Others

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT BUKOBA MISCELLANEOUS LAND APPLICATION NO. 000005639 OF 2025 JUMA FUNGAMEZA, ERNEST FRANCE, CHARLES MUSIKO, DATIVA NYANGOMA, RASHID K. RUSHALA, JUMA SILAJI, CREPIN JOVIN ANDREA, PASTORY KAHUZI AND CHAMA ALI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE OFFICE OF ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING BANZI, J, 28th March and 8th April, 2025 The applicants filed this application under certificate of urgency pursuant to section 2(3) of the Judicature and Application of Laws Act [Cap. 358 R.E. 2019] (“the JALA”) seeking Mareva injunction to restrain the respondents or their agents from evicting them from what they allege to be their pieces of land at Ibanga hamlet, within Ngando village, Nsunga ward and Bubale hamlet within Bubale village, Kakunyu ward within Missenyi District. They are doing so having served the respondents with 90 days statutory notice. The application was made by way of chamber summons supported by joint affidavit of the first to eighth applicants. The respondents, through counter affidavit deponed by Mr. Tapita Solomon Tuvana, resisted the application. At the hearing, the applicants enjoyed the legal services of Mr. Al-Muswadiku Chamani, learned Advocate whereas, the respondents were represented by Mr. Nestory Lutambi, Ms. Seraphina Rwegasira and Ms. Anna Ngira, learned State Attorneys. Mr. Chamani, began his submission with a request to adopt the chamber summons and joint affidavit of the applicants to form part of his submission. He further submitted that, the reasons for seeking the interim order are disclosed under paragraphs 6, 9, 10 and 13 of the affidavit. He added that, the first Page. 1 respondent made an announcement demanding the villagers of Ngando and Bubale to vacate from their land claiming that, they have trespassed into Busenya forest, the property of Missenyi District Council. He went further and submitted that, the description of each land of the applicant is found in annexure B. It was further his contention that, the applicants have met the criteria of granting Mareva injunction as stated in the case of Leonilah Kishebuka vs Dustan Novat Rutageruka and 2 Others (Land Application 70 of 2022) [2022] TZHC 10930 (1 July 2022) TanzLII. First, they have strong prima facie case or a good and arguable case because, they claim to own the same land which the first respondent claim to be her property. Second, the applicants cannot institute any case against the respondents because of legal impediment i.e., 90 days statutory notice. Third if the application is refused, the applicants will suffer irreparable loss. Basing on that, he prayed for the application to be granted. In reply, Mr. Lutambi also requested to adopt the counter affidavit of the respondents to form part of their submission. Furthermore, he submitted that, the criteria for granting temporary injunction were established in the case of Atillio vs Mbowe [1969] HCD 284 that, the applicant must establish a strong prima facie case; irreparable loss and balance of convenience. According to him, the applicants have failed to establish a strong prima facie case because, through their affidavit, they did not state how they acquired the land they claim to own. Moreover, the size of each land alleged to be owned by them came from a document attached to the statutory notice which was prepared by their advocate. According to him, prima facie case concerning ownership of land is established by evidence and not a mere rival argument. Besides, the notice issued by first respondent did not concern villagers of Ngando and Bubale villages which according to the annexed map, they are located at the east and west sides of Bushenya forest. It was further his contention that, the applicants will not suffer irreparable loss because they are living in villages and not within Bushenya forest where nobody is permitted to live. Conversely, if the injunction is issued, it is the respondents and the public at lager who will suffer from adverse effect of deforestation caused by illegal activities conducted by the applicants within the said forest such as cutting down trees for firewood and charcoal. He cited the cases of Diocles Rugaimukamu Kyabukwaya vs Izimbya Village Council and 2 Others (Misc. Land Application 2765/2025) [2025] TZHC 638 (5 March 2025) TanzLII and Debora Martine Mburamaju and 31 Others vs Karagwe District Council and 2 Others (Misc. Land Application 135 of 2021) [2022] TZHC 827 (25 February 2022) both reported at TanzLII to support his argument that, injunction should not be used as a shield to illegal activities. Thus, he prayed for the application to be dismissed with costs. On her side, Ms. Rwegasira added that, the impeded notice is not the notice in the eyes of law as it does not disclose the cause of action, relief claimed as well as name and place of abode of the intended plaintiffs as required under section 190(2) of the Local Government (District Authorities) Act [Cap. 287 R.E. 2002]. To buttress her point on the importance of notice, she cited the case of Thomas Page. 2 Ngawaiya vs Attorney General and Others (Civil Case No. 177 of 2013) [2018] TZHC 65 (2 March 2018) TanzLII. In his rejoinder, Mr. Chamani began with the last argument by stating that, the defect on the notice was the basis of the respondents’ preliminary objection which they withdrew. Besides, such argument should wait for the main case. So long as the applicants’ affidavit reveals legal impediment, it is enough for Mareva injunction to be granted. He further distinguished the case of Attilio vs Mbowe stating that, unlike in the instant matter, in that case, there was pending suit which made easier to compare the documents of both sides. He added that, it is not necessary to establish strong prima facie case but good and arguable case is enough as stated in the case of Leonilah Kishebuka. To him, ownership of land can be established by oral evidence. He further submitted that; the attached map does not show the boundaries of the villages in question. Besides, Bushenya forest is not gazetted as reserved forest where people are not allowed to live. He concluded that, the interests of the applicants are also within public interests. Having examined the affidavit, counter affidavit with all annexures and having considered the rival arguments of learned counsel for both sides, the main issue for determination is whether the applicants have met the required conditions for granting Mareva injunction. It is obvious from the record that, the applicants are seeking interim injunction pending institution of the suit. This type of injunction is commonly known as Mareva injunction, a common law remedy developed by courts of England through the case of Mareva Compania Naviera SA vs International Bulkcarriers SA [1980] 1 All ER 213, where Lord Denning gave a wider interpretation of section 25 of the Judicature Act of 1873 by stating that: “Now, therefore, whenever a right, which can be asserted either at law or in equity, does exist, then, whatever the previous practice may have been, the Court is enabled by virtue of this provision, in a proper case, to grant an injunction to protect that right. In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for the exercise of this jurisdiction. There is money in a bank in London which stands in the name of these charterers. The charterers have control of it. They may at any time dispose of it or remove it out of this country. If they do so, the shipowners may never get their charter hire. The ship is now on the high seas. It has passed Cape Town on its way to India. It will complete the voyage and the cargo will be discharged. And the shipowners may not get their charter Page. 3 hire at all. In face of this danger, I think this court ought to grant an injunction to restrain the charterers from disposing of these moneys now in the bank in London until the trial or judgment in this action. If the charterers have any grievance about it when they hear of it, they can apply to discharge it. But meanwhile the shipowners should be protected. It is only just and right that this court should grant an injunction.” (Emphasis supplied). What I gathered from the extract above is that, whenever there is a danger that the respondent may dispose of the assets of the applicant so as to defeat the ends of justice before the institution of the suit, the court has jurisdiction to issue an interim order to prevent the former from disposing of such assets. Applying that principle, the Supreme Court of Canada in the case of Aetna Financial Services vs Feigelman [1985] 1 SCR 2 emphasised that, for Mareva injunction to be granted, two conditions must be met; one, the applicant must demonstrate strong prima facie case or a good and arguable case and two, having regard to all circumstances of the case, it appears that, granting the injunction is just and justifiable. Back to our jurisdiction, Mareva injunction is granted by virtue of section 2(3) of the JALA which permits the applicability of common law doctrine of equity and statutes of general application. However, for such injunction to be granted, the applicant must meet the same conditions stated herein above. Apart from that, through various cases, such as Leonilah Kishebuka vs Dustan Novat Rutageruka and 2 Others (supra), existence of legal impediment like 90 days statutory notice has been considered as another condition for granting Mareva injunction. Furthermore, being an interim injunction, the conditions of existence of prima facie case; irreparable loss and balance of convenience laid down in the case of Attilio vs Mbowe (supra) must also be met. It is also settled principle that, these conditions must be proved all together. See the case of Christopher P. Chale vs Commercial Bank of Africa (Misc. Civil Application No. 635 of 2017) [2018] TZHC 2538 (13 March 2018) TanzLII. As alluded above, the applicants are seeking Mareva injunction against the respondents who are about to evict them from their land which the latter claimed to be reserved for forest. In his submission, Mr. Chamani contended that, the applicants are owners of the land in dispute. On his side, Mr. Lutambi was adamant that, the land subject matter of the eviction order is within Bushenya forest where nobody is permitted to live. Likewise, while Mr. Chamani insisted that, the applicants have prima facie case, Mr Lutambi claimed that, there was no strong prima facie case that was demonstrated by the applicants as they failed to show evidence to justify their ownership. Starting with the first condition, it is undisputed that, the subject matter of the injunction in question is landed property which the applicants claim to own. As correctly submitted by Mr. Lutambi, ownership Page. 4 of land must be established by evidence and not mere averment. It is common knowledge that, land is acquired through several ways including allocation, purchase, inheritance, gift, division of matrimonial property and adverse possession. Each way must be established by evidence such as title deed, sale agreement, Will, deed of gift or judgment of the court. Apart from that, in my considered view, in application for Mareva injunction involving a claim over land, the applicant must demonstrate existence of strong prima facie case or good and arguable case by clearly stating in his affidavit, the description of the land in dispute and how he acquired the same. In addition, his affidavit must be accompanied with document in order to establish and substantiate his ownership. I have carefully perused the joint affidavit of the applicants. For ease of reference, I find it prudent to reproduce relevant paragraphs as hereunder: “4. THAT the applicants’ claims of title are clearly indicated in the annexure attached in their demand notice dated 20.2.2025 addressed to the 1st respondent; 5. THAT in the said annexure referred in paragraph four hereof, each applicant’s piece of land is specified in terms of location and boundaries and the time of acquiring the same;” According to Mr. Chamani, through the above paragraphs, the applicants have stablished how they own the land in dispute. With due respect, this argument is unfounded due to the following reasons. First and foremost, in their joint affidavit, the applicants did not state anything disclosing the land of each applicant, its size and location. Second, they did not state how each applicant acquired piece of land they alleged to own either by allocation, purchase, gift or inheritance. Third, being the village land, they did not attach any document such as copy of certificate of customary right of occupancy, minutes of the village general assembly, sale agreement, deed of gift, Will or judgment of any court of law establishing how they acquired the land they claimed to own. Worse enough, annexure B is not a document in the eyes of law to prove ownership of land. As correctly submitted by Mr. Lutambi, it is a mere document prepared by their advocate. The same is titled “MAJINA YA BAADHI YA WAKAZI WA VIJIJI VYA NGANDO NA BUBALE WILAYANI MISSENYI, KAGERA.” It displays a table with serial number, name, size of the land with boundaries and telephone number. In the said table, there is nothing to show how each applicant acquired the mentioned acres. In that regard, it is my considered view that, a mere document prepared by the advocate and attached to the statutory notice cannot replace certificate of customary right of occupancy, sale agreement, deed of gift, Will, minutes of village general assembly or judgment of any court of law establishing ownership of any land and how it was acquired. Therefore, in the absence of any evidence to establish ownership of the land in dispute, I cannot conclude that, the applicants have demonstrated prima facie case leave alone, a strong prima facie case or good and arguable case. Besides, in my view in application of this nature where landed Page. 5 property is involved, a prima facie case cannot be established by mere rival statements between parties whereby, each party claims to own the same land. Thus, it is my finding that, the applicants have failed to meet the first condition. So far as the second and third conditions are concerned, one may ask, can the applicants suffer irreparable loss if they will be evicted from the land which they failed to establish their ownership? My answer is definitely NO! Since the applicants have failed to establish their ownership over the land in dispute which is the basis in establishing prima facie case, it is obvious that, if the injunction sought is not granted, they will not suffer any irreparable loss. Besides, on the balance of convenience, there will be no greater hardship and mischief suffered by the applicants from withholding of the injunction. From the foregoing reasons, regardless there is legal impediment, the applicants have failed to meet all required conditions to be granted Mareva injunction. Therefore, I find the application devoid of merit and I hereby dismiss it. Owing to the nature of the matter, each party shall bear its own costs. It is accordingly ordered. Dated at BUKOBA this 8th of April 2025 . I. K BANZI JUDGE OF THE HIGH COURT Page. 6