kangwina matinde 90 others vs fala mazuta 128 others 2022 tzhclandd 28 22 february 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPLICATION NO. 21 OF 2021 (Land case No. 01 of 2020) KANGWTNA MATINDE & 90 OTHERS...................................... APPLICANTS VERSUS FALA MAZUTA & 128 OTHERS.............................................. RESPONDENTS RULING Date: 22 & 22/02/2022 Nkwabi, J.: In this application, I am called upon, by the applicants, to issue a temporary injunction order against the respondents which would restrain the respondents, their families, servants, agents, relatives or anyone coming by their names or authorities from entering, occupying or using in any manner any part of the disputed land pending hearing and determination of Land case No. 1 of 2020 that is pending in this court. The chamber summons is brought under Order XXXVII rule 1 (a) and section 95 of the Civil Procedure Code Cap. 33 R.E. 2019 and is supported by the affidavit of Mr. B. S. Chambi, learned counsel for the applicants. The application too, was brought under a certificate of urgency. After efforts to serve the respondents proved futile save for one who was served, but the one who was served too has not appeared, I ordered that the hearing of the application proceeds in the absence of the respondents. During the hearing of the application, Mr. Chambi appeared for the applicants. In the course of the hearing, Mr. Chambi fully adopted the affidavit in support of the application to back up the prayer by the applicants that the order for injunction against the respondents be issued by this court. Guided by several authorities in applications of this nature, I decline to issue the order of injunction I am entreated to issue. It is only in appropriate applications where injunction orders may be granted as per Abdi Ally Salehe v Ass care Unit Ltd & 2 Others, Revision no. 3/2011 (Unreported) where it was stated: "... 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." Further, courts of law are enjoined to grant applications which have their reasons (basis) contained in the affidavit(s). When an argument is not 2 contained in the affidavit, then that argument cannot be entertained. This is the position in the case of Elfazi Nyatega & 3 Others V. Caspin Mining Ltd Civil Application No. 44/08 of 2017. The Court of Appeal of Tanzania held: "As to the reason relating to the death of the applicants' advocate, that fact is not contained in their affidavit and cannot therefore, be considered with a view of finding how it contributed to the delay." In this application, the land in dispute the subject of this application for injunction has its boundaries not mentioned or described in the affidavit in support of this application. Moreover, its size and where it is situated is not mentioned in the affidavit. The affidavit indicates that there are attachments attached to it but such attachments are not attached to the affidavit. It is, therefore, increasingly impossible to grant the prayer for an injunction order in the circumstances. For further authority the situation was underscored too in General Tyre Limited v HSBC Bank, 2006 TLR 60: "It is a fact that the applicant has filed in court a suit civil case no 8/2005, is this enough to establish a prima facie case? I do not think so, the applicant must go further and show that there 3 is a serious question to be tried as to the existence of a legal right which he claims in the suit." One could have reference as well to Misc. land Application No. 13/2013 Aliseo Peter Nditi v KCB Bank (T) Limited at page 5 held: "That temporary injunctions are discretionary remedy is well settled. Courts cannot grant them even when it is convenient to do so if the applicable principles enumerated above have not been fully met." It is, therefore, clear that a court of law will only grant a discretionary remedy where sufficient reason(s) have been advanced by the one who wishes the court to issues such discretionary remedy to his favour. For the above reasons, the application for injunction has no merits and it is dismissed. As the respondents neither appeared nor defended against the application, I make no orders as to costs. It is so ordered. DATED at SUMBAWANGA this 22nd day of February, 2022. J. F. Nkwabi JUDGE 4