latifa hassan alibhai vs jayendra j amarchand another 2020 tzhclandd 3990 5 november 2020

IN THE HIGHCOURT OF UNITED FIEPUBLIC OF TANZANIA (LAND DIVISION) MISC. LAND APPLICATION NO 474 OF 2019 (Arising from Land Case No. 199 of 2017)

LATIFA HASSAN ALIBHAI .^...APPLICANT

VERSUS JAYENDRA J AMARCHAND .^^^...1®^%ESP0JNDENT RAKHEE JAYENDRA JAGJIWAN ^S|M......^..^§^REl^NDENT

RULING The applicant seeks for an inteRainTO^^BIe^ainif^ the respondents, their assignees, employee^fl^nts ap^sso^es from interfering with the applicant's quite enjoymeff in th^.^ore^^The application is by way of chamber summo^ynadekUnfe^rdei^OOCVII Rule 2(1) of the Civil Procedure Cod^fep 3SR.E'^2M^J^pfported by an affidavit affirmed by the applicani^^TI®HASS^ ALIBHAI. The respondents opposes the applicat1^^d^^^^^%e^^oint counter affidavit to that effect. Brief^the dispi^^^and concerns ownership of the suit property located^ts^ Amani gikukuu Street, Ilala, Dar es Salaam Region. The applicant cl^^^^wn the suit property by purchasing the same from Suchack Flats Limited and the respondents claim ownership of the same property. According to the respondents, the applicant is a mere tenant to the suit premises. The applicant was represented by Mr. Joseph Samwel, learned advocate while the respondents were represented by Mr. Abbriaty Kivea learned advocate. Submitting in support of the application, the appiicanfs counsel argued that the respondents are harassing, and abusing the applicant by erecting several swing Pendulums, emitting sewage water anl^gking the corridors of the suit premises impassable thereby causjjig^the apt^ant's failure to enjoy the suit premises peacefully. He submit^Pfeither tnat ttrere is a^ triable case between the applicant and ^fe^esp^^^fl®Mthif all

claim ownership of the same property andSl^ha\^|l a^Shed documents that purport to prove their ownersh^yf^^^^^^^alt^o have purchased the suit premises from F^^Jn^d since March 1998 and has attached to her affidavit,® sharg^certmcajp ® 3 and receipts issued to her in respect of p^^r^|ax^a^^i^nyrent payments over the suit premises. The learned c@i3seifcferredi:his court to the decision of Atilio Versus Mbovire^^^^l9o9T o^&e principies governing grant of temporary injuncfgns. He di^er^aWs that granting an injunction is the discretion of the cour®ivhich md)^|be exercised if the applicant has established existence of three corfdiBl^fes follows; A serious question to be tried on the facts alleged and a probability that the piaintiff will be entitled to the reliefs ciaimed • That court's interference is necessary to protect the piaintiff for the kind of injury which may be irreparable before his legal right is established • That on balance of convenience, there would be a greater hardship suffered by the applicant from the withholding of the injunction than would be suffered by the respondent for granting^it. According to the learned counsel's submission applicant has established existence of a triable issue betweJ^p"^^ and that, there is a probability that the ^.i^nt wJn^^Eaj^ythe relief sought in the plaint due to eviden^^^w^^ip %at the applicant has attached to this application and

tli He argued also that, courfY interf^nc^^^this case is necessary as deposed in the applicant's^ ffida Iragraph 6, 7, 8, 9, 10,11,12,13,14, 15 and 17. He is of w that the application is granted, the respondents^l^^^uffS an :, if the same is not granted the applicant will srafer^eparab OSS much as the respondent will continue hara^ncTTfe^is t1S|ge bara%e of convenience, he considers the applicant as respondents will continue biocking^e applicant's entrance to the suit premises. In his replj^bmission the respondent's counsel cited the famous Otiiio's case and the case of T.A KAARE Versus GENERAL MANAGER MARA COOPERATIVE UNION (1984) LTD [1987] TLR 17(HC) on the necessary conditions to be considered by the court before granting a temporary injunction. The two cases set three conditions as already highlighted in the applicant's submission In chief. The learned counsel submitted that, the applicant has not met any of the three conditions for her to be granted temporary injunction. He argued that there is no triable case between the applicant and the respondents because there is no dispute that the second respond^is the lawful owner of the suit premises House No. 26 second floor^f the flat^^^ted at Amani Street and SIkukuu, Ilala, Dar es salaam compr^^^^ ceftiicaj^of title No. 31498 as per the copy of the offl^ksearAdaffl%^'Wovember, 2017. He argued further that the a[j^^^^H^^n(^as

a mere a tenant in the suit premises and dispife^r^^/hd^^| applicant's husband passed away. He submitt^^ffther^^Mr^^pleadings and submissions, the applicant has irrevocabjy andjuggqi^^lf^dmitted to be indebted to the respondents. According tpJtf^^porSl^'s^^^l^, the allegations by the applicant that she purc^^^^^^^ praises from SHUCK FLATS LIMrTED are not true j^thl^^gp^^all^^to have been bought by the applicant is differSt from f^property in dispute. Thus, the applicant will not be entitled to^liefs sought in the plaint. Arguing on wRither courts interference is necessary, he argued that it is not necessary because the applicant will not suffer anything if the application will not be granted. He submitted that it is the second respondent who will suffer loss in case the application will be granted as she will be deprived of her rent and ownership of the suit premises. The learned counsel is of the view that the respondent will face greater hardship if the injunction is granted than the applicant. He argued that the applicant has refused to pay rent and vacating from the property. Therefore, if the applicant will continue staying in the house, the respondents' life will be tough. He prayed for dismissal of the application with costs. In his rejoinder submission, the applicants counS^ disputed the respondents' submission that the applicant has^mitted tc^^ind^ted to the

respondents and reiterated his submi^fon in c1 lef flfia I have considered submissions ma( eth parties^and the court record. This being an application for te| jpora mis court need to consider fulfillment of thmnree grant of temporary Injunction as articulated i®he faj c^%)n mjunctions, Otilio Versus Mbowe cited above.'^Bwill^i^^^rodu'ce the three conditions extensively as the same^^'S^eldn sfibij^Ss by the parties which also form part of court'sUcjordMirbrii^the three conditions are the existence of a triabl^^^w4pds§ibilit\ritthe plaintiff to be awarded the reliefs sought, necessity of l^m^^^nterventions to avoid irrepairable loss to the applicafl^^^bal^e of convienience, that is, whether the applicant will suffer more thanthe respondent if the injuction order will not be granted. In the case at hand, both the applicant and the respondents allege ownership over the disputed house and they have all produced documents regarding such ownership. The respondents argued that the documents attached to the applicant's pleadings are not genuine and investigation over their genuineness will be conducted. The document alleged to be fraudulently obtained were filed In court on 7^ May 2017 and nothing has been initiated on the said Investigation. This suggests that probably the documents are not forged and If that Is the case there Is the possibility that the applicant will be granted the

relief sought. On the second condition, It Is the respondents' submission that the applicant has been their tenant for 20 years. This means the applicant has been staying on the disputed premises for al|^hose 20'Vga.r^rn that regard, if the injunction will not be grante^Jhe applicant might be evicted from the house she believed to hersfifbrn the^ar 1998. In that regard the Intervention of this court Is neressary'to ensure status quo of the suit I premise Is maintained the rlghts^f the applicant and the respondent over the suit premise^^ideten^e^ This court is of the^^ider^ view tft^jgrantlng of the Injunction will not cause irreparable damages to thefti^pondents as they will only lose the . .. alleged rent which can be easily remedied If the respondents will be declared lawful owners of the suit premises. For tfi^l.reason this court do hereby grant an Injunction order against the responoentSjiestralning them from Interfering with the applicant's peaceful enjoyment of the suit premises for the period of six months from today. Costs to follow events Z.ID. MANGO

JUDGE ••U 05/11/2020