Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAM MISC.LAND APPLICATION NO. 22034 OF 2024 KAYEN INVESTMENTS LTD.................................................................... APPLICANT

VERSUS RENA CALLIST NYAMWELO.......................................................... 1STRESPONDENT MATHEW SILVERY NYAMSHA..................................................... 2ndRESPONDENT KIGAMBONI MUNICIPAL COUNCIL............................................ 3rdRESP0NDENT COMMISSIONER FOR LANDS...................................................... 4™RESP0NDENT REGISTRAR OF TITLES................................................................ 5™RESPONDENT ATTORNEY GENERAL.................................................................... 6™RESPONDENT

RULING Date of last Order: 03/10/2024 Date of Ruling: 07/10/2024 LALTAIKA, J The Applicant herein KAYEN INVESTMENTS LTD filed this application, accompanied with a certificate of urgency, under section 2(2), 2(3) and section 5 of the Judicature and Application of Laws Act (Cap 358 R.E. 2019) and section 68 (e) and section 95 of the Civil Procedure Code (Cap 33 R.E. 2019) among other laws. Page 1 of 21 According to the Chamber Summons supported by an affidavit deponed by one DIANA CHABLA ATIENO, Director of the Applicant, the prayers sought are as follows: 1. That this Honourable Court be pleased order (sic!) Interim Order prohibiting the Respondents herein, their workmen, agents and anybody else from transferring ownership or disposing of the suit land with Certificate Title No. DSMT1012397, PLOT 19, Gezaulole, Kigamboni Municipal in whatsoever manner pending the lapse of 90 days' notice of an intention to sue.

2. That the cost of this application be provided for.

3. Any other and further relief this Honourable Court may deem to fit andjust to grant. Noteworthy, the application is vehemently objected by way of a counter affidavit deponed by one RENA CALLIST NYAMWELO, 1st Respondent herein, joint counter-affidavit filed by the 3rd to 6th Respondents as well as oral submissions by the learned State Attorney for the 3rd to 6th Respondents and Counsel for the 1st Respondent as will be discussed shortly. When the Application was called for hearing on the 3rd day of October 2024 the Applicant enjoyed the legal services of Ms. Esther Mosha, learned Advocate. Mr. Gallus Lupogo learned State Attorney appeared for the 3rd, 4th, 5th and 6th Respondents. Ms. Winnie Mandele and Mr. Tumainiel Page 2 of 21 Lyimo, learned Advocates, appeared for the 1st and 2nd Respondents respectively. The application was argued orally. The next part of this Ruling is a summary of submissions by both parties followed by this Court's analysis and the verdict. Ms. Mosha, Counsel for the Applicant, stated in her submission in chief that the Applicant had been served with a notice of rectification from the 5th Respondent on 20th August 2024, though the notice itself was dated 4th June 2024, requiring the Applicant to surrender the right of occupancy. Furthermore, on 23rd June 2023, Ms. Mosha averred, the 3rd Respondent had written a similar letter to the Applicant. In

response, the Applicant issued the required 90-day statutory notice of intention to sue, dated 26th August 2024, which would expire on 25th November 2024. The current application sought to maintain the status quo until the expiration of that notice. Ms. Mosha emphasized that the application had merit and referred to the case of Atilio v. Mbowe (1968) HCD 284, which outlined three conditions for the granting of interim orders: (i) the existence of a serious Page 3 of 21 question to be tried, (ii) the likelihood that the applicant would suffer irreparable loss, and (iii) a balance of greater mischief if the orders were not granted. She asserted that these conditions had been fully met. Mr. Lyimo, Counsel for the 1st Respondent, objected to the application and stated that, as a matter of courtesy, he would address the court in both English and Kiswahili. He then provided a brief history of the matter. He explained that on 16th June 2019, the 1st and 2nd Respondents had entered into a contract for the purchase of a piece of land located in Gezaulole, Kigamboni for a consideration of TZS 500,000,000. However, the full amount was never paid, and only TZS 5 million was settled. Mr. Lyimo added that the 1st Respondent was given a second chance on 14th June 2022 after the 2nd Respondent had taken his claims to the District Executive Director (DED) of Kigamboni, who subsequently

convened a meeting where the 1st Respondent admitted breaching the contract and promised to pay TZS 350 million by 30th July 2022. Mr. Lyimo interjected, clarifying that the time limit set for payment had actually been 30th July 2023, and the 1st Respondent had failed to honour the agreement. He further explained that since the matter had been handled Page 4 of 21 by the Municipal Offices, they were supposed to report back there regarding the non-payment. According to the agreement, Mr. Lyimo averred, the 2nd Respondent was entitled to repossess the entire property. He claimed without giving any details that during their investigation, it was discovered that there were forged agreements between the 1st and 2nd Respondents. The 2nd Respondent’s signature was not genuine, and there was a prior agreement for a TZS 200 million sale before the main agreement of TZS 500 million. Mr. Lyimo claimed that the matter had been reported to the Prevention and Combating of Corruption Bureau (PCCB), which uncovered issues of forgery, tax evasion, and possible corruption. Consequently, averred the learned Advocate, the PCCB directed that all titles be deregistered. On the merits of the application, Mr. Lyimo acknowledged that the counsel for the Applicant had raised three grounds, with the first being that there was a serious question to be tried. He argued that the Applicant's right was

derived from the 1st Respondent's right, which had been breached in Page 5 of 21 two contracts: first, by failing to pay TZS 500 million to the 2nd Respondent, and second, by failing to pay even TZS 350 million as agreed later. He further pointed out that under section 37(1) of the Law of Contract Act, Cap 345 RE 2009, parties to a contract must fulfill their respective promises unless excused under the law. When read in conjunction with section 39 of the same Act, it was clear that if one party refused to perform, the other party could terminate the contract unless otherwise signified. To support his argument, he referred to the case of Wilmar Tanzania Limited v. Dipsi Conrop Limited, Land Case No. 224 of 2023, which emphasized that when a defendant voluntarily sells property and the plaintiff fulfills their obligations, ownership must shift accordingly. He emphasized that no serious issue existed, as ownership had not moved from the 2nd Respondent to the 1st Respondent, who had allegedly sold the land to the Applicant. Moreover, averred Mr. Lyimo in general terms and moving from one area of law to another, there were allegations of forgery and other criminal activities involved, with the 1st Respondent having created eight plots from Page 6 of 21 the suit land and selling them at a flat rate using identical contracts, all dated the same. According to the learned State

Attorney, any contract based on forgery was void, as section 17(l)(d) of the Law of Contract Act defines fraud as any act designed to deceive, and the same Act renders such contracts void at the option of the weaker party. Mr. Lyimo argued that the entire transfer process violated tax laws, as the suit land had been offered to Symphorose Petter Mattyesse, with the offer being subject to taxes, including capital gains tax. He then referred to the case of Ally Hassani Falla and Others v. Kalema Maziwa Village Council, Misc. Land Application No. 57 of 2023, where Mambi J. cited Order XXVII Rule 1(b) of the Civil Procedure Code (supra), indicating that no valid reasons had been provided in the Applicant’s affidavit. According to Mr. Lyimo, the affidavit was based on a story, without establishing any legal rights, nor did it demonstrate any likelihood of success in the case. He prayed that the application be dismissed with costs, leaving the relevant investigating authorities to continue their corruption investigations, as the court should not be part of any effort to cover up a criminal act. He concluded that the Applicant had no rights in the matter. Page 7 of 21 Mr. Lupogo, learned State Attorney for the 3rd to 6th Respondents, began by making a few comments and referred to the main application, which sought to stop the disposition of Title No. DSMT1012397 for Plot No. 19,

Gezaulole. He noted that while the application was supported by an affidavit, the affidavit itself did not mention any plan for transfer or disposition of the title. Mr. Lupogo clarified that the term ''disposition, "as defined in the Land Act No. 4 of 2019, referred to an act done inter vivo, with transfer being the effect of such a disposition. He further cited section 2(1) of the Land Registration Act Cap 334 RE 2019, observing that the affidavit lacked any reference to disposition or transfer, while paragraph 16 of the Applicant's affidavit mentioned the procedure to rectify the title deed, which would allegedly affect the Applicant. He pointed out that Annex KN7, collectively attached to the affidavit, provided for rectification in accordance with section 99(l)(e) and (f). Mr. Lupogo argued that an application could only be granted if supported by evidence, and in this case, the affidavit did not substantiate the claims made in the application. He further asserted that the Applicant had failed to provide sufficient evidence to convince the court to stop the Page 8 of 21 transfer of the title or any form of disposition. He also pointed out that the affidavit mentioned rectification rather than transfer or disposition, as referenced in paragraphs 16 and 11 of the affidavit. The learned State Attorney, having displayed enviable mastery of provisions of the law cited, went on

to address the nature of the application, which was for a Mareva Injunction. He explained that, as established in the case of Atilio v. Mbowe (supra), three main conditions had to be met cumulatively for such an injunction to be granted: (i) the existence of a triable issue, (ii) the likelihood of irreparable loss, and (iii) a balance of convenience between the competing parties. While he concurred with Mr. Lyimo's submissions on these aspects, he added further comments as summarized bellow. Focusing on irreparable loss and the balance of convenience, Mr. Lupogo explained that procedural rules required the Applicant to specifically state the exact loss that would be suffered if the application were not granted. He referred to paragraph 12 of the Applicants affidavit, where she mentioned her intention to invest in the area through a building permit. However, the learned State Attorney argued, simply attaching a building permit was insufficient, as it did not demonstrate any actual investment. Page 9 of 21 He suggested that the Applicant should have included photographs of any buildings erected or contracts with constructors detailing payments made. Additionally, he noted the absence of a certificate of occupation issued by the Municipal Authorities, which would have been critical to proving the claim. In his view, Mr. Lupogo opined, the lack of such documents weakened the

Applicant's argument regarding irreparable loss. He further referred to paragraph 14 of the Applicant's affidavit, where it was stated that the Applicant had engaged an expert for construction and incurred costs, but he pointed out that neither the costs nor the expert was specified. This, averred the learned State Attorney, further negated the claim of irreparable loss. Mr. Lupogo then highlighted that the loss being claimed had to be one that could not be compensated in monetary terms. According to paragraph 16 of the Applicant's affidavit, the issue at hand was the rectification of the title deed under section 99(l)(e) and (f) of the Land Registration Act (supra). In the event that such rectification occurred, he argued, the Applicant could be compensated under section 100(1) of the same Act, which provided for government indemnification. Thus, averred the learned State Attorney, there Page 10 of 21 was no evidence of irreparable loss, and the Applicant could be compensated by the government. On the issue of which party was more likely to suffer, Mr. Lupogo referred to Annex KN7 in paragraph 11 of the Applicant's affidavit, which indicated that the rectification was aimed at removing the Applicant's name from the title and replacing it with the name of Her Excellency the President of the United Republic of Tanzania. He explained that this rectification process would

temporarily return ownership to its original state, pending the resolution of the dispute. Once the issues were resolved, the land register would be re-rectified to reflect the rightful owner. He argued that this temporary rectification was a way to reduce conflicts, even though it was not a legal requirement but rather based on the originating document. Section 99 was applicable, asserted Mr. Lupogo, where records were improper, such as in cases involving fraud. He emphasized that the rectification to the President's name was a temporary measure, and the status quo would remain, as there was no current owner between the competing parties. Page 11 of 21 Mr. Lupogo also emphasized that this process reduced the potential for multiple disputes, which could jeopardize the public interest. He warned that if the title was not returned to the President, there would be uncertainty about what the current titleholder might do with the suit land. He also pointed out, as stated by Mr. Lyimo, that the transactions had not been conducted properly, making it imperative that the application not be granted and that the title revert to the President until the buying and selling issues were resolved, particularly given the potential for criminal charges. Finally, Mr. Lupogo referred to the 9th paragraph of the counter­ affidavit filed by the 3rd to 6th Respondents, which should be read

in conjunction with paragraph 15 and paragraph 2 of the Applicant's affidavit, as well as Annex KN7. He explained that Annex KN7 provided a 30-day notice for bringing any contrary notice from the court. Paragraph 9 of the counter­ affidavit, along with Annex OS1, showed that this notice had been posted to the Applicant on 26th June 2024. According to the Land Registration Act, Mr. Lupogo argued, the countdown began from the date of posting, meaning that by 5th September 2024, approximately 60 days had passed. He noted that the Applicant's affidavit did not reflect the current status of the land register, as the Page 12 of 21 Registrar was required to proceed with rectification after 30 days from the posting date. He concluded that issuing an injunction might not serve any purpose, as the application could have been overtaken by events due to the lack of evidence about the current status. Ms. Mosha, in her rejoinder submission, maintained that the application had merit. She responded to the Respondents' counsel by emphasizing that there were serious triable issues, specifically the claims of breach of contract and fraud. She pointed out that these were significant matters that warranted attention. Ms. Mosha reiterated that the Applicant was the lawful owner of the land, having purchased it from the 1st Respondent. She added that the transfer was processed by the 4th Respondent

and registered by the 5th Respondent. She asserted that any fraud would have been committed by the 3rd to 5th Respondents, as they were the ones who endorsed the transfer to the Applicant. This transfer, Ms. Mosha reasoned, was not a simple or quick process. She insisted that the application should be granted due to the serious nature of the matter. In support of her argument, she referred to paragraph 3 of Page 13 of 21 the Applicant's affidavit, paragraph 7 on the official search, and paragraph 8 on the Title Deed. Regarding the second condition, she argued that the removal of the property itself constituted a loss for the Applicant. She emphasized that the Applicant had been granted a building permit, but during the construction process, the work was stopped, which, according to Ms. Mosha, was likely to cause emotional distress to the Applicant. On the issue of balance of inconvenience, Ms. Mosha asserted that the 5th Respondent would not suffer any loss by rectifying the title. On the contrary, she argued, it was the Applicant who stood to lose more. Addressing the submission by the counsel for the 3rd to 5th Respondents, she argued that there must be a decision to appeal and that one could not appeal based on a notice alone, but rather on a decision. She also referred to the counsel's statement that the title would be rectified to reflect the name of the President. She

recalled that the counsel for the 2nd Respondent had mentioned the existence of criminal elements and that a complaint had been lodged with the PCCB. However, Ms. Mosha noted that Page 14 of 21 no copy of such a complaint, nor any order from the PCCB, had been presented. The learned Advocate for the Applicant then addressed the claim of breach of contract, pointing out that paragraph 6 of the counter-affidavit indicated that the 2nd Respondent had paid TZS 150,000,000, not 50 million as stated by the counsel. On the seriousness of the matter, she emphasized that the name mentioned in the offer was not that of the 2nd Respondent, which further underscored the importance of determining ownership. Turning to the sections of the Law of Contract that had been cited, particularly those dealing with remedies, she referred to section 39 of the Law of Contract Act, explaining that this section was not mandatory but provided an option for the parties. She also referenced the case of WILMART TANZANIA LTD, (supra) which cited section 37 of the Law of Contract Act. In that case, Ms. Mosha argued, the parties were bound by their agreement, and the issue was not about taking away someone's title. Regarding the claims of tax evasion and unpaid capital gains tax, Ms. Mosha argued that the burden could not be placed on the Applicant. She also reiterated how the Applicant would suffer irreparable

loss, particularly Page 15 of 21 given the Respondents' haste to make rectifications. She concluded by emphasizing that the phrase "in whatever manner" was broad, encompassing transfer, disposition, and other forms of transactions. I have dispassionately considered the rival submissions. I find the submissions by Counsel, especially that by Mr. Lyimo very in interesting. I will come back to that part later. Ms. Mosha submitted that the application has merit and should be granted based on the serious triable issues raised. She argued that the Applicant is the lawful owner of the suit property, having purchased it from the 1st Respondent, and that the transfer was lawfully conducted by the 4th Respondent and duly registered by the 5th Respondent. She maintained that if there were any fraud, it could only have been perpetrated by the 3rd to 5th Respondents, who facilitated the transfer to the Applicant. Mr. Lyimo on his part argued that the 1st Respondent and 2nd Respondent had entered a contract for the sale of land, but the 1st Respondent had breached the contract by failing to pay the full purchase price. He went further to invoke imaginary issues related to investigation by the PCCB, tax evasion and, out of sheer ignorance I would say, prayed for Page 16 of 21 this Court to leave the matter to investigation by the PCCB and resolution by the Municipal Authorities. I have no

hesitation in directing Mr. Lyimo to revisit his notes on the distinction between criminal and civil liabilities and inherent, more importantly, on inherent powers of this Court. I am not aware of any law in this country that bars Courts of law from entertaining a civil claim pending "investigation" by some other body. Futile attempts to ouster jurisdiction of this court in the pretext that some criminal investigations and corruption charges are pending should, in my opinion, never come from an Advocate. Counsel for the 3rd to 6th Respondents, Mr. Lupogo argued that the conditions for granting a Mareva injunction, as established in the case of ATILIO v MBOWE, had not been met. Specifically, he contended that the Applicant had failed to demonstrate irreparable loss and had not provided sufficient proof of loss or inconvenience that could not be compensated by monetary damages. I will address these conditions briefly in the next paragraphs. The first requirement in considering the grant of a Mareva injunction is the existence of a serious triable issue. I do not want to waste much time on this. The Applicant has insisted that she is the lawful Page 17 of 21 owner of the suit property. She is being asked (I think the proper word is compelled) to surrender her right of occupancy to the same institutions that had facilitated the transfer and acquisition of the same. No reason is

given and no right to be heard has been granted. The Respondents, on their part, particularly Mr. Lyimo, allege that the 1st Respondent had already breached a prior contract with the 2nd Respondent, thereby nullifying any subsequent transfer to the Applicant. Let me say outrightly that Municipal authorities in this country have no jurisdiction to resolve contractual issues and even if they do (in the spirit of promoting Alternative Dispute Resolution-ADR, for example) their decisions are not final and conclusive. Nothing bars this Court from opening its doors to an aggrieved party to such well intentioned attempts. It is therefore, my finding that there is a serious, triable issue involved herein. The second element that must be established is whether the Applicant will suffer irreparable loss if the injunction is not granted. The Applicant has argued that if the Respondents are allowed to proceed with the transfer or disposition of the suit property, she stands to lose the property, and the substantial investments made. Ms. Mosha emphasized that the Applicant was granted a building permit and had already commenced Page 18 of 21 the process of constructing on the land before being stopped due to the dispute. Ms. Mosha pointed out that the emotional burden of being deprived of the property she lawfully purchased, combined with the financial impact of halting the construction

project, represents a loss that cannot be adequately compensated by monetary damages alone. With due respect, I disagree with Ms. Mosha on emotional distress. As far as I know, she is representing a body corporate. Although in company law the Applicant is a "person", juristic persons are incapable of experiencing emotions. Without prejudice to the foregoing, and in liner with legal pragmatism, a school of thought in Jurisprudence, when it comes to an application for maintenance of status quo pending expiration of a 90-days' notice to sue, I find it irrational to start contemplating on monetary compensation or the lack of it. Not only is it impractical to process such monetary compensation within ninety days. More importantly, having made a finding on existence of a triable issue, I consider the right to be heard more important than all the cases cited. A legal pragmatist cannot help but fault this element for inability to consider a bigger picture including that monetary compensation is not always the primary goal for knocking on the door of a Court of Justice. In Page 19 of 21 this context, the loss is not merely financial but also encompasses the non- pecuniary damages that arise from being wrongfully deprived of the right to be heard. Litigation is the only way to push the boundaries of our jurisprudence. The third consideration is the balance of convenience, which

involves determining which party stands to suffer greater harm if the injunction is or is not granted. The Applicant's counsel has argued that the balance of convenience clearly favours the Applicant, as she is at greater risk of losing the property and the investments made in its development. In contrast, the Respondents argued that the title rectification was a procedural matter that would temporarily revert the title to the President to facilitate the resolution of the underlying dispute between the parties. However, the court finds that such rectification, even if temporary, could jeopardize the Applicant's position as the rightful owner of the property and create further complications in resolving the dispute. This could lead to a situation where the Applicant loses her property rights without having had the opportunity to fully argue her case in court. In the upshot, it is my finding that the Applicant has met the necessary conditions for the grant of a Mareva injunction. The Application is accordingly Page 20 of 21 granted. The Respondents are restrained from transferring or disposing of Title No. DSMT1012397 for Plot No. 19, Gezaulole, Kigamboni, pending the expiration of the Notice of Intention to sue. I make no orders as to cost at this juncture. It is so ordered. .LALTAIKA

JUDGE Court Ruling delivered this 7th day of October 2024 in the presence of Ms. Esther Mosha Counsel for the Applicant, Ms. Joseph learned State Attorney for the 3rd to 6th Respondent accompanied with Mr. Enock Patrick, Legal Officer for the 3rd Respondent, Mr. Tumainiel Lymo Counsel for the 1st Defendant also holding brief Mr. Benitho Mandele Counsel for the 2nd Respondent. E. I. LALTAIKA

JUDGE 07/10/2024 Page 21 of 21