MISC

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MISC. CIVIL APPLICATION NO. 19 OF 2023 (Originating from Civil Case No. 4 of 2023 at the High Court of Tanzania at Mtwara) MUSSA HAJI CHINGUNGWA--------------------------- 1st APPLICANT MOHAMED! MNAPELA--------------------—— ------ 2nd APPLICANT MOHAMEDIAMANIAMANI------------------------- — 3rd APPLICANT HAMISI ATHUMANI MAKANJILA------- 4th APPLICANT VERSUS MTWARA MIKINDANI MUNICIPAL COUNCIL —- 1st RESPONDENT THE ATTORNEY GENERAL-------- —------ ------- -- 2nd RESPONDENT RULING Date of last Order; 07.03.2024 Date of Ruling* 24.04.2024 DING'OHI, J.: Linder the Certificate of Urgency and at the instance of Mr. Idd Mussa Msawanga, the learned advocate, the applicants, preferred this application on representative capacities, for themselves and on behalf of other 274, under Order XXXVII Rules 1 and 2, Sections 68 (c), (e)and 95 ofthe Civil Procedure Code, [Cap. 33 R.E 2019] For the following orders: Page 1 of8 1. That, this Honourable court be pleased to issue an order for Injunction restraining the Respondents, their agents, workmen, assignees, or any other person working on that behalf from evicting the Applicants from the premise named as Sokobati/Magomeni WB" market situated at Magomeni WB" street, Mtwara Mikindani Municipal, herein Mtwara Region pending final and conclusive determination of the main suit now pending before this Honourable court. 2. Costs of the Application 3. Any other reliefs as the Honourable court deems properto grant. As mandatorily required by the law the chamber summons made of this application is supported by an affidavit of Idd Mussa Msawanga, the learned advocate who represented the applicants in this matter. The Respondents were represented by Mr. Masunga Kamihanda, the learned Senior State Attorney. The disposal of this application was, by consent, ordered to be by way of written submissions. In his submission in support of the application, Mr. Msawanga submitted that the Court is empowered to grant a temporary injunction, status quo, and declaration of the rights of the parties. He contended that the Applicants are Page 2 of 8 seeking for an order of status quo to stay and prevent respondents from evicting them from the disputed area. He elaborated further that the affidavit accompanying this application has established cumulatively all the ingredients necessary for granting an order for temporary injunction as listed in the case of Atilio vs. Mbowe (1969) HCD 284. He named them as; 1) There should be in existence of triable issue between the parties, 2) irreparable injury to the plaintiff, 3) That, on balance of convenience, the application be granted pending determination of the main suit. Counsel for the applicants prays for the temporary injunction on the strength of the supporting affidavit. He averred that the application is to be granted with costs. In the reply submissions, Mr. Masunga Kamihanda, the learned senior State Attorney, for the 1st and 2nd respondents, vehemently denied the applicants7 prayers. He submitted that Order XXXVII Rule 1 and 2 of the Civil Procedure Code, [Cap. 33 R.E 2019] is coached in a mandatory term that an order for temporary injunction shall not be made against the Government. To bolster his argument, he referred me to the case of Mwanza City Council vs Page 3 of 8: Alfred Wambura (Civil Appeal) [2022] TZHC 55 (27 January 2022) on page 15. He further submitted that this application was overtaken by the event as the applicants were evicted from the disputed area in 2022. The learned State Attorney was of the view that, where the application has been overtaken by the event, the Court has to dismiss that application. He referred me to the case of Shabir Ebrahim Bhaijee and Others vs. Selemani Rajab Misino and Another, Civil Application No. 40 of 2007, CAT-DSM on page 9. He contended that the principles for granting temporary injunction as professed in the case of Atilio (Supra) were not met by the applicants. He gave three reasons for his stance; One, the applicants were not the owners of the disputed area, they were just tenants and their contract had already expired in 2021. Thus, according to the learned state attorney, there is neither any triable issue between the parties as far as the ownership of the disputed premises is concerned nor the landlord and tenant relationship. Two, the issue of irreparable loss does not arise in this matter as the applicants under paragraphs 10, 11,12, and 13 admitted to be no longer at the disputed area since they were evicted in 2022, and three, on the balance Page 4 of 8 of convenience, as the applicants are not at the disputed area since 2022, they are trying to get back to the disputed area by using this application. Thus, the said balance of convenience is in favour of the respondents. It is Mr. Masunga's further submission that this application is without merits as the applicants are no longer seeking a temporary injunction but rather are seeking an order for the maintenance of the status quo. According to the learned state attorney, maintenance of the status quo cannot be isolated with a temporary injunction. He finally prayed for the dismissal of this application with costs. In a rejoinder, the advocate for the applicants reiterated what he submitted in chief. He added that the applicants will suffer in case this Court withholds maintenance of the status quo meaning that the applicants will not be allowed to do business and their premises will be allocated to other people. He stressed that they have invested a lot in the disputed area in compliance with the conditions of the lease agreement. He added that they have loans from the financial institutions which they depended on their business in the disputed area to repay. Having considered the submissions from the parties and read the contents of the affidavit and counter-affidavits thereto, my major task is to determine Page 5 of 8 whether this application is meritorious. It is trite law that the Court's power to grant an injunction is predicated upon the applicant meeting the three conditions set out in the celebrated case of Atilio (supra). I have carefully gone through the chamber summons, affidavit, and submissions by the Applicants advocate. I have also gone through the counter affidavit and reply submissions by the Respondents. I am of the settled view that this is not the matter which is to detain me longer. Based on that view, I will be very brief and straightforward. The law is now settled that no order for a temporary injunction shall be made against the Government. Order XXXVII Rule 1 and 2 of The Civil Procedure Code [Cap. 33 R.E 2019]. Order XXXVII Rule 1 fal and (b) of The Civil Procedure Code fCap, 33 R,E 20191 provides that; "7. Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger Of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution Of a decree; or (b) that die defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, Page 6 of 8 sale, loss In value, removal or disposition of the property as the court thinks fit, until the disposal of the suitor until further orders: Provided that, an order granting a temporary injunction shall not be made against the Government, but the court may in lieu thereof make an order declaratory of the rights of the parties. "[Emphases added] I am aware that, alternatively, Mr. Msawanga, for the Applicants, has prayed that instead of issuing a temporary injunction order this court may be pleased to make a declaratory order to the effect that the act of evicting the Applicants in the premises/ market area will prejudice their interest and constitutional rights of doing business. He contended that the right of parties in our scenario is that the 1st respondent may continue to collect tariff and duties as usual and the Applicants continue to do their business activities with compliance of paying tariff and duties to the 1st respondent on time, pending determination of the main suit As rightly submitted by the Advocate for the Respondent, the prayer for the maintenance of the status quo was not fronted by the Applicants in his application and since it is brought at this stage of making submissions of the application, the court will not be in a better position to consider the same. It may be considered in a proper case. Page 7 of 8 On the strength of the above observations, certainly, there will be no order for a temporary injunction against the Government. The advocate for the Applicants did not seem to have strongly disputed that stance. In the final result, therefore, this application should be dismissed as I hereby do. Under the circumstances of this matter, parties who may be depending on each other, are to shoulder their respective sides of the costs. Order accordingly. Dated at Mtwara this 24th April 2024. S.R. DING'OHI JUDGE 24.04.2024 COURT: Ruling delivered this 24th day of April 2024 in the presence of Mr. Masunga Kamihanda, the learned Senior State Attorney, and the Applicants who appeared in person. S.R. DING'OHI JUDGE 24.04.2024 Page 8 of 8