20130419 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (LAND DIVISION} AT DODOMA MISC. LAND CASE NO. 55 OF 2012 M/S MODERN MATTRESS MANUFACTURING LIMITED ......... APPLICANT Versus MAHER SINGH THAKER SINGH (UNDER POWER OF ATTORNEY OF TRISHANRAJ SINGH VIRDI .•....•. RESPONDENT 11/03/2013 & 19/04/2013 RULING HON. MADAM, SHANGALI, l. On 5/11/2012 I heard and granted an application filed under the certificate of Urgency seeking for ex-parte interim order for stay of execution of the decree issued by the Dodoma District Land and Housing Tribunal in Land Application No. 155 of 2011 2 pending the hearing and determination of the main application for the stay of execution inter-parties. In that ex-parte application the applicant M/S MODERN MATRESS MANUFACTURING LIMITED was represented by Mr. Steve Biko, learned advocate but in this main application the applicant has been represented by Mr. Mdeme, learned advocate while the respondent MR. MAHER SIGH THAKER SINGH was represented by Mr. Nyabiri, learned advocate. -The facts of_ this application are simple and clear. The· respondent had sued the applicant before Dodoma District Land and Housing Tribunal in Land Application No. 155 of 2011 seeking for an order of eviction against the applicant from the premises in dispute for failure to adhere to the terms of the Lease Agreement. The application was heard ex-parte before the trial Land Tribunal and ruled in favour of the respondent, the decree holder. That, when the applicant discovered about the presence of the ex- parte judgement against him, he moved swiftly and filed before the same District Land Tribunal a Miscellaneous land Application No. 278 of 2012 seeking to set aside the ex-pa rte judgement against him. The applicant also filed Misc. Land Application No. 279 of 2012 before the same District land Tribunal praying for the stay of execution of the ex-parte judgement pending the hearing and determination of the application to set aside the ex-parte 3 judgement. Despite the existence of the above said two pending matters, the District Land Tribunal decided to proceed with the eviction process. As a result the applicant decided to file a Land Case Revision No. 7 of 2012 before this court seeking for the immediate intervention of the court. He also filed this application for stay of execution preceded by ex-parte interim order. In the hearing of this application Mr. Mdeme submitted to the effect that the gist of this application is to give room to the court to hear the parties and determine the pending application and revision. Mr. Mdeme stated that there are several and serious irregularities including issues of jurisdiction occasioned by the District Land and Housing Tribunal in dealing with the case as articulated in the affidavit sworn by Mr. Steven Biko to support the Chamber Application. He further contended that the applications of this nature are guided by three main issues as stated in the case of Attilo vs Mbowe (1979) HCD, No. 284 and Ibrahim vs. Ngaiza (1971) HCD No. 249. Mr. Mdeme stated that the first is whether there is a serious issue to be determined by the court on the facts alleged, and whether there is a probability of the applicant to be entitled to relief; The second issue is whether the court's interference is necessary and thirdly is whether the applicant would suffer irreparable loss that is incapable of atonement in monetary damages. 4 Mr. Mdeme submitted that the most serious issue in this application is the denial of the right to be heard. The second serious issue is the fundamental issue of jurisdiction of the District · Land and Housing Tribunal under section 33 (2) (a) and (b) of the Land Disputes Court Act. The learned advocate stated that the dispute involved in this matter is over the industrial complex with a good number of employees who would be rendered jobless if the execution is carried out at this early stage. He further argued that if the execution is carried out the machines and chemicals at the industry will be destroyed or damaged and the applicant will suffer irreparable loss because the possibility of payment in monetary compensation is almost nil. On those reasons Mr. Mdeme humbly invited the interference of this court by way of issuing a stay of execution order in order to give room for the same court to hear and determine the pending matters. In response, Mr. Nyabiri learned advocate for the respondent opposed the application on the ground that he was not aware of any revision filed in this court by the applicant. He argued that the two cases cited by the applicant's counsel and the legal proposition therein are all irrelevant because the court's were dealing with injunctions while the present matter is an application for stay of execution. He admitted that the centre of the dispute is 5 the industrial complex but argued that the same belongs to the respondent who is entitled to his monthly rent and rights to enjoy the fruits of his decree. Mr. Nyabiri suggested that in case the court decided to grant the application, then the applicant should be ordered to deposit in court that amount of security equivalent to the rent due in order to safeguard the rights and interests of the respondent. He claimed that the lease agreement is expected to expire in 2013 and it appears that the applicant is intending to leave the industrial complex without paying any rent. In his rejoinder Mr. Mdeme submitted that there is a pending revision in court, Land Case Revision No. 7 of 2012 which was filed on 24/10/2012 and which was duly served to the applicant. Regarding to the difference between application for injunction and stay of execution, Mr. Mdeme contended that the effects of injunction and stay orders are the same because all reliefs are seeking for the intervention of the court while the basic matter is pending in court. He insisted that in most cases the reasons and the subsistences are the same regardless of the different names. On the issue of payment of security equivalent to the rent due, Mr. Mdeme argued that it is not possible for the court to determine the amount of security to be deposited at this stage because even the amount of rent claimed in the case is disputed. Mr. 6 Mdeme suggested that at the moment the court may order the · applicant to maintain the industrial complex as it is without removing or tempering with the installed machines. Having head the contentions issues between the parties and having considered the facts and circumstances pertaining to this application I am certain that the decision by this court in its ex- parte interim order was correct and ought to be extended to this main application. am convinced that there is compelling evidence and reasons to justify the intervention of the court by way of granting stay of execution order in order to give room to hear and determine the pending revision before this court. It appears that there is much to be determined by this court in the pending land case revision No. 7 of 2012 because the conduct of the cases before the District Land Tribunal was speedily and haphazardly engineered contrary to the normal judicial etiquette. Definitely 1 one would like to know as to why the District land Tribunal refused or reneglected to hear and determine Miscellaneous Land Application No. 278 of 2012 seeking to set aside the ex-parte judgement and Miscellaneous Land Application No. 277 of 2012 seeking for stay of execution all filed by the applicant and instead rushed for the execution of the ex-parte decree. 7 I agree with Mr. Mdeme' s submissions and I hold that the legal proposition submitted by him and the cited decisions in the cases of Attilio (supra) and Ibrahim (supra) are correct and applicable in this application. The issue of payment of security equivalent to the rent due is also baseless because even the amount of the alleged rent arrears is in dispute and there is no sufficient evidence to establish the alleged applicant's bad intentions. Nonetheless the respondent's fears may be accommodated by compelling the applicant to maintain the industrial complex as it is, without damaging, removing, destroying or tempering with the installed machine. At this juncture, I see no reason to labour much on this application because the eyes of justice require me to grant the application as prayed. The respondent/Decree Holder or his agents, employees or court broker are suspended and restrained from executing order of the District Land and housing Tribunal dated 2nd and 3rd October, 2012 of attaching the properties of the applicant/ Judgement-debtor and evicting the applicant/ Judgement-Debtor pending the hearing and 8 .- ' determination of the Land Case Revision No. 7 of 2012 pending in this court. At the same time the applicant is hereby ordered to maintain the industrial complex in dispute as it is without damaging, removing, destroying or tempering with the installed machines pending the hearing and determination of the said Land Case Revision. I reserve costs to be costs in the cause. It is so ordered. Ruling delivered to-date 19/04/2013 in the presence of Mr. Steven Biko, Learned advocate for the applicant and Mr. Mavunde (Advocate) holding brief for Mr. Nyabiri, learned advocate for the respondent. M.S. SHA JUD(;E 19/04/2013