KERA KOMEYO MAREVA INJUNCTION FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC.CIVIL APPLICATION NO. 6163 OF 2024 KERA KOMEYO MAKESENI .......................................................... 1st APPLICANT SANING’O LESWANYA MOLLEL ............................................................... 2nd APPLICANT NGOTETO LESWANYA MOLLEL ................................................... 3rd APPLICANT KISHILI SHAWISHI MOLLEL ...................................................... 4th APPLICANT MATHIAS LEKANGAI MAMASITA ................................................ 5th APPLICANT ELIUPENDO SIRIA LOODO......................................................... 6th APPLICANT ANDREA ZAKAYO MUNGURE ..................................................... 7th APPLICANT JULIANA MARKO LUKUMAY ....................................................... 8th APPLICANT YOHANA LESTTEYA MOLLEL ........................................................9th APPLICANT MARKO SANGAU MOLLEL ......................................................... 10th APPLICANT DINESS LANGAELI KAAYA ......................................................... 11th APPLICANT EMMANUEL MICHAEL MOLLEL .................................................. 12th APPLICANT VISHAL NARENDRA OZA ........................................................... 13th APPLICANT VERSUS DIRECTOR GENERAL, TANZANIA AIRPORTS AUTHORITY. ..... 1st RESPONDENT HON. ASSISTANT COMMISSIONER FOR LANDS ......................2nd RESPONDENT HON. REGIONAL COMMISSIONER FOR KILIMANJARO .......... 3rd RESPONDENT 1 DIRECTOR GENERAL, KILIMANJARO AIRPORT DEVELOPMENT COMPANY LIMITED (KADCO).................................................................. 4th RESPONDENT PERMANENT SECRETARY, MINISTRY OF WORKS AND TRANSPORT.............................. 5th RESPONDENT THE HON. ATTORNEY GENERAL ............................................ 6th RESPONDENT RULING 22/04/2024 & 30/04/2024 SIMFUKWE, J The applicants, Kera Komeyo Makeseni and 12 others, are moving this court under section 2(3) of the Judicature and Application of Laws Act [Cap 385 R.E 2019] and section 95 of the Civil Procedure Code, [Cap 33 R.E 2091] for Mareva injunction, restraining the respondents from evicting and demolishing the buildings of the applicants, pending expiry of 90 days statutory notice to sue the Government. The application is by way of a chamber summons filed under certificate of urgency, supported by joint affidavit sworn by the applicants. The respondents resisted the application through their joint counter affidavit sworn by Mr. Gaspar Dominic Chovela, the Estate and Environmental Officer of the 4th Respondent. 2 The application was heard viva voce; whereas the applicants were represented by Mr. Jeremia Mjema, learned counsel while Ms. Glorian Issangya, learned State Attorney appeared for the respondents. Supporting the application, Mr. Mjema submitted that, this application is for Mareva injunction whereby the applicants are praying for temporary injunction restraining the respondents from evicting them and demolition of their buildings pending expiry of 90 days’ notice of their intention to sue the Government. The applicants served the respondents with their notice of their intention to sue the Government. He explained inter alia that, Mareva injunction is the injunction which is issued pending expiry of 90 days’ notice as it was held in the case of Decent Investment Ltd v. Tanzania Railway Corporation and 3 others, Misc Civil Application No. 13 of 2023 (HC) at page 7- 8 of the ruling where it was stated that: “It is trite law that the interim injunction is sought prior to the institution of a suit. It should be noted that an interim injunction order preceding the institution of a suit “Mareva injunction” which is a common law remedy developed by courts of England. It derives its name from the case of Mareva 3 Compania Naviera SA v. International Bulk Carriers SA [1980] 1 All ER. Applying this principle, the Supreme Court of Canada in Aetna Financial Services v. Feigelman (1985) 1 SCR 2 stated that: “In granting Mareva injunction, two conditions must be established firstly, the applicant must demonstrate a strong prima facie case or a good and arguable case and secondly, having all the circumstances of the case, it appears that granting the injunction is just and justifiable.” In Tanzania, the court has jurisdiction under section 2 (3) of the Judicature and Application of Laws Act [Cap 358 R.E 2019] which supports the application of common law and equity in our jurisdiction. This court has in numerous occasions accepted applications for temporary injunction even where there is no pending suit. In special circumstances, an application for a temporary injunction may be applied and granted without a pending suit…” Mr. Mjema subscribed to the case of Atilio v. Mbowe, which prescribed three (3) conditions for granting temporary injunction, that: 4 1. There must be a prima facie case. 2. The applicant will suffer irreparable loss. 3. The applicant is at risk of getting big loss compared to the respondent. In proving the above conditions in this case, Mr. Mjema submitted that the applicants allege that they are lawful owners of the disputed land. That, they have attached to their joint affidavit the Sale Agreements and Customary Rights of Occupancy. Also, the respondents alleged that they are lawful owners of the disputed land through title deed No. 22270 issued on 20th April of 2006. Thus, there is a prima facie case between the parties, which must be resolved by this court. Hence, the first condition has been complied by the applicants. On the second condition of irreparable loss, Mr. Mjema submitted that the applicants will suffer irreparable loss if temporary injunction is not granted, as they will have no place to live, they will suffer loss of income as they will have no place to keep their livestock as stated under paragraph 9, 15 and 17 of their joint affidavit. 5 On the third condition, the learned advocate was of the view that the applicants are at risk of getting big loss compared to the respondents. That, if the applicants are evicted from their residents prior to determination of the dispute, they will have no place to go and suffer more compared to the respondents. That, throughout their life, the applicants have been residents of the disputed land. In that regard, Mr. Mjema was convinced that this court has jurisdiction to issue temporary injunction as the applicants have complied to the conditions prescribed in the case of Atilio v. Mbowe and Decent Investments Ltd (supra). In addition, on 10/3/2024 the 4th respondent issued notice to the applicants of her intention to evict them. Even after institution of this matter, on 1/4/2024 the 4th respondent issued another notice which expired on 19/4/2024. That, the said notice has been attached to the joint counter affidavit of the respondents and the applicants were not served with it. Thus, the applicants are in danger of being evicted from the disputed land before determination of their dispute. Lastly, Mr. Mjema prayed this application to be granted with costs. In reply, Ms. Glorian informed this court that they filed their joint counter affidavit which she prayed to be adopted to form part of their submission. 6 The learned State Attorney prayed that Mareva injunction should not be granted on the following reasons: She briefly referred the case of Atilio v. Mbowe (supra). She submitted that, in consideration to the 3 conditions of granting Mareva Injunction /interim injunction, there is no any case which is pending before this court filed against the 6 respondents. That, paragraph 9 of their counter affidavit states the real owner of the disputed land. That, even before the disputed land was granted to the 1st respondent in 1969, it was owned by the government. It was called “Sanya Game Controlled Area. In 1969 the 1st respondent was allocated part of the said area meaning, 11085 hectors. Later, the 1st respondent acquired certificate of occupancy which was issued in 2006 under Title No. 22270. At that time the 1st respondent was using part of the land. Recently, she started expanding her activities. On the second issue that the applicants will suffer irreparable loss, Ms Glorian replied that, there is no loss which the applicants will suffer. The applicants are in the process to be paid exhausted improvement which they effected to the disputed land which is the property of T.A.A. That, applicants are not lawful owners of the disputed land. Thus, they cannot suffer irreparable loss. Evaluation of the area has been done, whereas 1631 residents have been 7 paid out of 1712 residents of that area. The residents who have been paid, have vacated the Airport area. In simple mathematics, 81 residents only are yet to be paid, out of them 13 only are applicants in this application. Therefore, the respondents are more likely to suffer irreparable loss compared to the applicants. On the third issue of balance of convenience, the learned State Attorney submitted that the 1st respondent will suffer more compared to the applicants as she must expand her activities. She has already paid some of the residents of the disputed area/land. In case the applicants were not aware that the said area was the property of the 1st respondent, they were given time and notified through meetings at the regional level. Ms. Glorian said that paragraph 6 of their counter affidavit was relevant. She stressed that, basically, all applicants have been valuated and issued with notice to vacate from the suit land. The learned State Attorney prayed that Mareva injunction should not be granted and this application should be dismissed with costs. In his rejoinder, Mr. Mjema opposed the arguments of Ms. Issangya that there is no main case as the instant application is an application for Mareva injunction pending expiry of 90 days’ notice. He stated that, the law allows 8 applications of this nature pending expiration of 90 days. Thus, the argument has no merit. Concerning the conditions set in Atilio’s case Mr. Mjema reiterated his submission in chief that ownership of land is disputed. At paragraph 10 of the affidavit of the applicants, they explained their objection of the title deed, the certificate of occupancy issued to the 1st respondent. That the said certificate was issued while they were in possession of the disputed land. That, in this application the court will not deal with the main dispute. On the second condition Mr. Mjema rejoined that the argument that the 1 st respondent has started to pay the applicants, has no merit. The development of the disputed land has been effected by the residents (applicants). Even the respondents have conceded the same on the 2nd paragraph of their joint counter affidavit. Moreover, the fact that the valuation had been done is not supported by the counter affidavit. The learned counsel stated that it is a statement from the bar. Regarding the 3rd condition of balance of convenience; it was rejoined that the allegation that the 1st respondent has projects at the disputed land has not been proved. Also, the argument that payments have been done is 9 unfounded. Mr. Mjema reiterated that the application should be granted with costs. I have considered the submissions of both parties, the joint affidavit and joint counter affidavit, the issue is whether this application has merit. The application has been preferred under section 2(3) of the Judicature and Application of Laws Act, (supra) which provides that: “2(3). (3) Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said common law, doctrines of equity and statutes of general 10 application and the said powers, procedure and practice may, at any time before the date on which this Act comes into operation, have been modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of Her Majesty in Council, or by any Proclamation issued, or any Act or Acts passed in and for Tanzania, or may hereafter be modified, amended or replaced by other provision in lieu thereof by or under any such Act or Acts of the Parliament of Tanzania: Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary.” Emphasis supplied. It is from the above quoted provision that the High Court of Tanzania is conferred with jurisdiction to grant Mareva Injunction, an interim common law restraining order, in absence of any pending suit, caused by impediment of the law. That is the applicants’ intention to sue the respondents herein is subject to issuance of 90 days’ notice. 11 As correctly submitted by Mr. Mjema for the applicants there are two conditions which must be established prior to granting Mareva Injunction. Firstly, the applicant must demonstrate a strong prima facie case or a good and arguable case. Secondly, having all the circumstances of the case, it must appear that granting the injunction is just and justifiable. The case of Aetna Financial Services v. Feigelman (supra) cited with approval in the case of Decent Inventment Ltd (supra) is relevant. In addition to the conditions for granting Mareva Injunction, conditions for granting normal temporary injunctions as propounded in the land mark case of Atilio v. Mbowe (supra) ought to be established as well. It may be noted that the first condition in Mareva Injunction resembles the first condition for granting temporary injunction as set in Atilio’s case. In the case at hand, according to what has been deponed in the joint affidavit of the applicants, they are claiming ownership of land which they acquired in different forms that include: clearing of virgin land, inheritance, by purchase, allocation by competent legal authorities on diverse time as indicated in annexure KL – 1 referred at paragraph 2 of the joint affidavit. It is also evident from paragraph 3 of the joint affidavit of the applicants that some of them are from Majengo, Malula and Samaria villages, in Arumeru 12 district in Arusha Region, while some of them are from Hai district in Kilimanjaro Region. At the same time the 1st respondent claim ownership over the disputed land vide Certificate of Occupancy with Title No. 22270 issued on 20th April 2006. The applicants have attached to their joint affidavit Land Form No. 69 titled “TAARIFA YA MKAZI WA ARDHI KUDAI FIDIA” and 21 days’ notice to vacate from their villages. The Notice reads inter alia: “JAMHURI YA MUUNGANO WA TANZANIA WIZARA YA UCHUKUZI KAMPUNI YA UENDESHAJI NA UENDELEZAJI WA VIWANJA VYA NDEGE YA KILIMANJARO (KADCO) TANGAZO KWA UMMA NOTISI YA SIKU ISHIRINI NA MOJA (21) YA KUONDOKA NDANI YA ENEO LA ARDHI YA KIWANJA CHA NDEGE CHA KIMATAIFA CHA KILIMANJARO (KIA) KUANZIA TAREHE 11/03/2024 HADI 31/03/2024. 1. Kufuatia kukamilika kwa zoezi la uthamini wa maendeleo yaliyofanyika juu ya ardhi ya eneo la Kiwanja cha Ndege cha Kimataifa cha Kilimanjaro (KIA) na ulipwaji wa kifuta jasho kwa 13 wananchi 1712 kutoka vijiji vya Sanya station, Tindigani, Chemka, Mtakuja, Majengo Kati, Kaloleni, Samaria na Malula waliokuwa wanaishi ndani ya eneo la Kiwanja cha Ndege cha Kimataifa cha Kilimanjaro (KIA) ili kupisha shughuli za uendeshaji wa Kiwanja cha KIA kwa maslahi mapana ya Taifa kama ilivyoelekezwa na Baraza la Mawaziri (BLM) mnamo tarehe 30/04/2022…..” Emphasis added From the above quoted notice, it is clear that notice to vacate the “Airport land” concerns 1712 villagers from the respective villages mentioned in the notice. Without prejudice to the rights of the applicants over the purported disputed land if any, section 3 of Land Acquisition Act, Cap 118 R.E 2019 provides that: “3. The President may, subject to the provisions of this Act, acquire any land for any estate or term where such land is required for any public purpose.” Emphasis added. Section 4(1) (d) of Cap 118 (supra) provides that: “4. -(1) Land shall be deemed to be required for a public purpose where it is- 14 (d) for or in connection with the development of any airfield, port or harbour;” Section 3 (1) (a) to (o) of the Village Land Act, Cap 114 R.E 2019 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 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 Under the above quoted provision of the Village Land Act, (supra) interference of use of land by the State is subject to compensation and the National Land Policy recognizes that an interest in land has value. The law requires that value to be taken into consideration in any transaction affecting that interest. 15 In considering whether the first condition for granting Mareva injunction and temporary injunction has been met; I have gone through the reasons for and against granting the interim order as deponed in the joint affidavit and joint counter affidavit and the arguments advanced by both parties in their oral submissions. In the spirit of the above provisions of the law which I have endeavoured to quote, I am of strong opinion that the applicants have no strong prima facie case against the respondents. The logic is obvious that the land has been acquired or interfered with for public use. The conditions for acquiring or interfering with the use of land have been complied with. In case the applicants are aggrieved with the compensation offered to them, their cause of action against the respondents will not be claim of ownership of land as their presence at the disputed land has been acknowledged through evaluation and payment of compensation as required by the law. The applicants attached to their joint affidavit Form No. 69 (Land Evaluation Form). Thus, the issue of evaluation and payment was not a statement from the bar, as the applicants acknowledged it in their affidavit. Therefore, the first condition for granting Mareva Injunction has not been complied with. 16 Assuming that the first condition has been met, on the second condition for granting Mareva Injunction; whether granting the injunction is just and justifiable; the learned counsel for the applicants was of the opinion that the applicants will suffer irreparable loss and suffer more compared to the 1st respondent. The learned State Attorney argued among other things that there is no loss which the applicants will suffer as the applicants are in the process to be paid exhausted improvement which they effected to the disputed land. That, evaluation of the area has been done, whereas 1631 residents have been paid out of 1712 residents of that area. The residents, who have been paid, have vacated the Airport area. In simple mathematics, 81 residents only are yet to be paid, out of them 13 only are applicants in this application. Thus, the respondents are more likely to suffer irreparable loss compared to the applicants. Moreover, the 1st respondent will suffer more compared to the applicants as she must expand her activities. In the case of Abdi Ally Salehe v. Asac Care Unit Ltd and Others, Civil Revision No. 03 of 2012 [2013] TZCA 179, at page 8 of the judgment, the Court observed that: 17 “And on the question of balance of convenience, what it means is that before granting or refusing the injunction, the court may have to decide whether the plaintiff will suffer greater injury if the function is refused than the defendant will suffer if it is granted. …. the remedy of injunction has its roots in equity and so, equitable principles may be applied in appropriate cases.” Emphasis supplied On the strength of available evidence from both parties, I subscribe to the above cited case law and find that, in this case it will be unjust, unjustifiable and against principles of equity and public interest to grant the Mareva Injunction sought by the applicants. I agree with the learned State Attorney that it is the 1st respondent who will suffer irreparable loss and inconvenience the expanding of the Airport activities. I am of the view that, the applicants should have prayed for extension of time to vacate the suit land pending their payment, if they are yet to be paid. In the upshot, I find the applicants to have failed to meet the requisite conditions for granting Mareva Injunction and temporary injunction as prescribed. Consequently, I dismiss this application without costs. 18 Order accordingly. Dated and delivered at Moshi this 30th day of April 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 30/04/2024 19