20140428 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM LAND CASE NO. 78 OF 2012 · LEVINA BAGAMBISA KABUNGA ..........................•......... APPLICANT ·V TANZANIA ELECTRIC SUPPLY COMPANY LIMITED .........................-. ........................................ RESPONDENT RULING Date oflast Order 26/2/2014 Date of Ruling 28/4/2014 A. Shangwa. J On 8 th June, 2012 the Applicant Levina Bagambisa Kabunga filed a civil suit against the Respondent Tanzania Electric supply Company Ltd. Her suit was registered as Land Case No. 78 of 2012. The Respondent wishes to demolish the Applicant's house on plot No. 216/ 1 Block A at Kimara Matangini area within Kinondoni Municipality 2 with Title No. 54 724 issued on 28 th November, 2003. The Respondent wishes to do so on grounds that it was built within the Electric Power transmission line. The Applicant denies the Respondent's claim that her house is built within the Electric Power transmission line. On the same date when the suit was filed, the Applicant · filed an application for a temporary injunction to restrain the· Respondent, her. agents and employees .. from demolishing the suit premises pending the determination ·of the main suit namely Land Case No. 78 of 2012. The Application . was ·argued by way of written submissions. Counsel on each side were of different views concerning this application .. In brief, counsel for the 3 Applicant Mr. Byamungu and Miss Bayona contended in their written submissions that if this application is not granted in favour of their client, there is a danger that she will be left homeless and without being paid compensation. Furthermore, they contended that there are triable issues ,in the suit between the parties an-d that if the injunct~on is refused, the Applicant will suffer irreparable loss and will suffer much inconvenience compared tb the Respondent as she has been living in the house under threat of demolition for several years. In opposition to · the Application, counsel for the Respondent Mr. · Siperrtba cited . the · case of Giella V ·· . Cassman Brown & Co Ltd. (1973) E.A. 358 at page 360 in which the . conditions for grating a temporary injunction· were laid down. In brief, these conditions are that there should exist a serious triable issue between the 4 parties. That the interim injunction sought is necessary in order to prevent some irreparable loss and that on the balance of convenience, the Applicant will suffer greater hardship and mischief if the injunction is not granted. After citing the above mentioned authority, counsel for the Respondent argued that there is no triable issue in the case between the parties because the Applicant has ··interfered with the Electric Power ,vay. leave that is within 30 meters of Kidatu - lVIorogoro Ubungo Mg ( 1) 220 kv T / L Power transmission.· line which was · commissioned 1n 1975. In addition to that counsel for the Respondent argued that the Applicant is not going to suffer any irreparable loss if her house is demolished because she knew the consequences of· interfering with the. Respondent's way 5 leave and that if the interim order sought by her is granted on the balance of convenience, it is the Respondent who is going to suffer greater hardship than her because as a result of her interference, the Respondent will have no room for servicing the power line. In my view, the conditions for granting a temporary. injunction laid down in the land mark case of Giella V. Cass man Brown & Co; Ltd (1973) EA 358 at P. 360 do exist in the case between the parties. First of all, there are · triable issues between them. The issues between them·are ., "'~-!' whether or not the Applicant's house is built within ·the Respondent's electric Power transmission line and if so ·whether it should be demolished with or without ·compensation. Secondly, if the :injunction is.not granted, the Applicant will suffer irreparable · loss and on. the balance· of convenience, ·she will suffer greater hardship · 6 than the Respondent in that her house in which she has been living for many years.· will be demolished without giving her alternative accommodation and most probably without compensation. For these reasons, l hereby grant this application J;rut I order that under the circumstances of this case each party should bear its own costs. ~ A.Shangwa. JUDGE 28/4/2014 Delivered in open Court this 28 th day of April, 2014 in the presence of Ms Bayona for the Applicant. A.Shangwa . . JUDGE 28/4/2014 ; ·:·. _:·:~'.