miriam jeremiah solomon vs john maroa daudi 4 others 2023 tzhclandd 16589 22 june 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. APPLICATION NO. 124 OF 2023 MIRIAM JEREMIAH SOLOMON................................................... APPLICANT VERSUS JOHN MAROA DAUDI............. ........................................... 1st RESPONDENT AZIM HUSSEIN DEWJI........................ 2nd RESPONDENT KIGAMBONI MUNICIPAL COUNCIL..........................................................3rdRESPONDEN COMMISSIONER FOR LANDS................................................................... 4thRESPONDENT ATTORNEY GENERAL............................................... 5th RESPONDENT RULING Date of last Order: 30/05/2023 Date of Ruling: 22/06/2023 A, MSAFIRI, J, The applicant has filed this application seeking for the so called "Mareva Injunction" as protection interlocutory order to the applicant and to restraint the respondents from dealing in any way with the suit property purported to be Plot No. 589 Block B Amani Gomvu area in Kigamboni Municipality. The application is made under Section 2(3) of the Judicature and Application of Laws Act Cap 358 R.E 2019 and Section 95 of the Civil Procedure Code Cap. 33 R.E. 2019 (Herein as the CPC). The application i was supported by the affidavit of the applicant Miriam Jeremiah Solomon. The respondents filed their counter affidavits in opposition of the application. The counter affidavit by the 1st respondent was sworn by Mr. Magusu Mugoka, advocate for the 1st respondent, the 3rd, 4th and 5th respondents also filed their joint counter affidavit which was sworn by Ms. Lucy L. Kimaryo, learned State Attorney, while the 2nd respondent also filed his counter affidavit affirmed by himself, Azim Hussein Dewji. The hearing of the application was done by way of written submissions. The applicant's advocate one Peter Majanjara was the one who drew and filed the submission in support of the application. He submitted that it is trite law that for Mareva injunction to be granted, three conditions must be met as propounded in the case of Atilio vs. Mbowe (1969) HCD No. 284. That, first there must be a serious question of law that would entitle the applicant to a relief, two; the court's interference is necessary to protect the applicant against irreparable injury and three, the balance of convenience where it has to be demonstrated that there will be greater hardship suffered by the applicant if the application is withheld. ■ 2 Mr. Majanjara submitted further that all these conditions have been met by the applicant. In the first instance, he said that the applicant has taken steps to sue the respondents by issuing 90 days' notice of intention to sue. He averred that there is a serious question of law which can be observed from paragraphs 2,3,4,5,8 and 12 of the applicant's affidavit which shows the claims of the applicant against the respondents. That, the claims have been denied by the respondents through their counter affidavits thus bringing up a point of contention and prima facie case. Counsel for the applicant submitted on second condition of irreparable injury that, the applicant stands to lose the disputed land which she is in possession of as a result of the actions of the 1st and 2nd respondents encroaching upon the disputed land. On the third condition on balance of convenience, the counsel argued that in paragraphs 8,9 and 10 of the affidavit, the applicant has clearly disclosed that the 1st and 2nd respondents have encroached her land and the 2nd respondent has been issued building permit in which he has already began installing boundary of poles and a fence. /cllr 3 It was the contention of the counsel for the applicant that the same has established the three conditions necessary for the application to be granted. He prayed that the same be granted in favour of the applicant. In reply, the 1st respondent's written submission objecting the application was drawn and filed by Mr. Magusu Mugoka, learned advocate. He averred that the applicant has failed to meet the three conditions set in the cited case of Atilio vs. Mbowe (supra). That is because the applicant has not proved ownership over the disputed land such as to warrant this Court to grant the orders sought. Mr. Mugoka submitted that on first condition, there is no serious question of law that would entitle the applicant to a relief. That, the applicant has no documents to support her ownership of the land in dispute taking into account that the 1st respondent owns the same land legally. On second condition, Mr. Mugoka said that, there is no injury to the applicant since she has no proof of ownership of the disputed land at all. On third condition, the counsel disputed the fact that the applicant will suffer greater hardship if the application is withheld. That, this is because the 1st respondent is not a trespasser in the disputed property 4 but the legal owner. He urged the Court to do justice by dismissing this application with costs. The 2nd respondent's submission was drawn and filed by Ms. Ashura Mansoor Salum, learned advocate. Before submitting on the merit of the case, the counsel raised a legal point on competency of this application before this Court that the statutory notice of intention to sue the Government has expired. That in the circumstances, this application does not fall within the ambit of "Mareva Injunction" and hence not competent before this Court. Ms. Salum referred this Court to annexure MS 6 which is the Notice of intention to sue and which forms part of the affidavit of the applicant. She maintained that the Notice has expired since 03/ 6/2023. She pointed that the grounds of issuing Mareva Injunction were not met. On their part, the 3rd, 4th and 5th respondents, represented by Ms. Kimaryo, submitted briefly that the applicant's notice of intention to sue has expired, as it was served on 03/03/2023 and since then up to now, 102 days has passed. Ms. Kimaryo argued that, since the orders sought by the applicant were to be granted pending the lapse of 90 days' Notice of intention to sue, then the said orders cannot be granted by this Court as the said 5 period has already lapsed. She prayed that the application has been overtaken by events and hence should be dismissed with costs. Having gone through the submission by all parties to this case, I am inclined to join hands with the submissions by the counsel for the 2nd respondent and the counsel for the 3rd, 4th and 5th respondents that this application is not tenable before this Court for the reasons that it has been overtaken by events as the 90 days' Notice of intention to sue has expired since 03rd June 2023. One of the conditions for the so called Mareva Injunction is that there should not be any pending suit before the Court as the aim of this is for the Court to issue interim order pending the institution of the main suit. Since the 90 days' Notice has expired then the applicant has nothing preventing her to institute the main case and seek for proper orders. In the circumstances, I find that this application is irrelevant and I strike it out accordingly. Each party to bear their own costs. 6