MUSTAFA S

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI MISCELLANEOUS LAND APPLICATION NO. 23519 OF 2024 MUSTAFA SALIM FUNGO……………………………….……..1ST APPLICANT GODSON ELISAFI KARIGO…………………………….……..2ND APPLICANT SELEMAN RAMADHAN IDUFA……………..………….……..3RD APPLICANT JUMA STAMBULI MMBAGA ………………..………….……..4TH APPLICANT SELINA YAKOBO……………………………..………….……...5TH APPLICANT RAMADHAN HASSAM MMBAGA …………..………………..6TH APPLICANT OMARY YUSUPH KINTU ………………………………………7TH APPLICANT HERMAN SEBASTIAN KIMBWEREZA…………..………..…8TH APPLICANT RAJABU IBRAHIM KILAGHAI…………………………………9TH APPLICANT VER SUS THE TANZANIA NATIONAL ROADS AGENCY (TANROADS)……………………………….……………………1ST RESPONDENT ATTORNEY GENERAL……….………………….…………….2ND RESPONDENT RULING 7th & 10th October,2024 A.P.KILIMI, J.: The nine applicants mentioned hereinabove, have brought this application under certificate of urgency against the abovenamed respondents under the provision of section 2(3) of the Judicature and Application of Laws Act, CAP 358 R.E 2019, Section 68(e) and section 95 of 1 the Civil Procedure Code, CAP 33 R.E 2019, praying the following orders that; EX-PARTE (a) That this Court be pleased to grant declaratory of the right of the parties that the Respondents, his workman and or agents to withhold rights of the Applicants for their properties /houses from being demolished pending determination of this Application inter parties. INTER PARTIES (a) That this Court be pleased to grant declaratory of the right of the parties that the Respondents, his workman and or agents to withhold rights of the Applicants for their properties /houses from being demolished the determination of this suit main suit interparties. (b) Costs to follow the event. (c) Any other relief the Hon. Court will deem fit and just to grant. The application was supported by affidavit of each applicant above, averring the reasons for their prayers depicted in the chamber summons to be granted e-parte. Since the same was filed under certificate of urgency, having consider the nature of their claim and time constraint which was apparent, I was inclined in the outset to hear them ex-parte, and then interparty to be heard later. 2 The brief facts gave rise to applicants rush to this court as discerned from their affidavits are that; the applicants are owners of a disputed land situated at Kisiwani area within Same District at Kilimanjaro region. On 31st July 2024 they were notified and ordered by the 1st Respondent to demolish their properties/structures within 30 days failure of which the 1st Respondent will demolish at their expenses. At the hearing of the application the applicants were represented by Mr. Isack Samson, learned advocate. The learned counsel submitted that the applicants believe that their houses were erected legally and are not on road reserve. He further submitted that according to the applicants the said road found them living at the said land and owning that land. He said that the first Respondent has communicated to the applicants that the properties will be demolished without further notice therefore the applicants are contending that if their houses will be demolished, they will suffer irreparable loss but if the Respondents will be stopped from doing so, they will not be prejudiced. Regarding the procedure of suing the defendants, the learned counsel submitted that they have complied with the legal requirement of giving a 90 days’ notice to the respondents. The learned counsel further 3 stated that the reasons for this application are that first, the area to be demolished is owned by the applicants, whereas each applicant has stated in their affidavit the boundaries of the lands. That the applicants have title to that land, for instant first Applicant one Mustapher Salim Fungo has a title and the same is annexed in his affidavit. The counsel further added that first respondent has established a new road which should follow the Applicants residents. He also maintained that earlier there was an old road , which did not touch the applicants’ land but recently the first respondent left the previous road and established another road which should pass on applicants’ lands and want to demolish their houses without giving them compensation. It was his further submission that in the year 2020 the first respondent brought valuer namely Ramadhan Salum, who passed on each house and assessed the compensation. But then again, this time first respondent came and ordered their houses be demolished. It was his submission that the applicants were querying as to why the valuation was done if the Respondent were not planning to pay compensation. The counsel then concluded that in the circumstance, applicants pray this court to grant temporarily declaratory order of their right to stay undisturbed on 4 their areas mentioned while waiting for hearing interparty, because if their residential houses are demolished, they will suffer irreparable loss. Having considered the prayers by the applicants, affidavit and submissions by their counsel. I have grasped that the applicants are praying for temporary injunction in form of Mareva injunction, thus this being an injunction I wish to be guided by cerebrated case in this land of Attilio vs Mbowe (1969) H. C. D. 284 wherein Georges CJ, observed that before granting the order of injunction the Court must be satisfied that: First; There is a serious question to be tried on the facts alleged, and the probability that the plaintiff will be entitled to the relief prayed. Second; The Applicant stands to suffer irreparable loss requiring the Courts intervention before the Applicants legal right is established; and third; That, on the balance, there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting of it. 5 On the first condition above, it was the learned counsel’s submission that their applicants’ properties/ residents were there before the said road and that they own their properties legally that is why some of them have titles. Also, he submitted that since the applicants legally own the land in dispute, they deserve to be compensated if the government wants to alienate them. I have considered that applicants claiming ownership over their land. As evidenced in their affidavit already they have been served with notice. This means that the respondents also claimed to have legal title on the said land. Thus, in my view the only way to resolve this is for them to be heard on merits whereby each side will procure evidence to support their claim, Since , there is already evidence that there is a dispute over the ownership of the said land .The Court will therefore have to determine whether the applicants have legal title over the suit land or whether the suit land is a road reserve. In that regard therefore, I am of considered opinion the first condition is fulfilled that there is a serious triable issue among the parties. 6 Although the respondent’s side has not been heard but going by the pleadings and the affidavits in support of the application, it is more likely than not that the applicants may suffer irreparable loss. In their affidavits and in particular paragraph 2 of each affidavit, the applicants are claiming to be owners of the suit land. In addition, in his submission supporting the application the learned counsel stated that the suit land is indigenous and that the applicants lived there since colonialism. In addition, in paragraph 9 of the affidavits, the applicants averred that both the old and new roads came after people had set out their development including residential houses and development in production of food and cash crops. All this points out what will befall them in the event the application is denied. Their houses will be demolished and they will be left homeless if they are not accordingly compensated. Considering all these facts, in terms of loss it is without any doubt that the applicants may suffer irreparable loss. The second principle is therefore also met. In respect to the second condition, each applicant have averred in his affidavit, at paragraph 6 that already they have been served with 30 days’ notice to demolish their structure in their land, and at paragraph 11 each has stated that the 1st respondent already has marked their structure ready 7 for the said demolishing exercise after the said notice. I have considered their claims, I am of the firm view that the applicants have tried to prove that there are demolishing exercise coming soon. At paragraph 9 of their affidavit each have demonstrated how the said land is useful for their daily life, house and cultivation food crops. I am inclined by the decision of the case of Kibo Match Group Limited vs H.S Impex Limited [2002] TLR 152, when the court observed that applicant has to show that unless immediate action is taken the applicant may suffer a quantified or unquantified irreparable damage and if the temporary injunction is withheld the final decision would be rendered nugatory. The applicants herein have applied this application temporary pending the hearing of the main case interparty. I have considered their reasons in their affidavits as alluded above, I think they have demonstrated the irreparable loss is likely to be suffered to them if this application is not granted. Therefore, I am settled they have met the second condition. As to the third condition, I have considered my findings on above two conditions, I have of considered view a balance of convenience which is likely to be caused to the applicant by refusing the injunction will be higher 8 than what is likely to be caused to the opposite party by granting it. Thus, the same is also proved. In upshot, since the applicants have been able to justify as to why their application should be granted ex-parte this Court finds no good reason to think otherwise. All the applicants deserve to be granted their prayer sought. For the foregoing, I thus proceed to grant temporary injunction and order that the respondents, its employees, workmen and agents be restrained from withholding rights of the applicants for their properties from being demolished or interfering with the applicants’ quite possession/occupation and enjoyment of their plots pending hearing of this matter inter parties. In the circumstances I order no costs to anybody. It is so ordered. X JUDGE Signed by: A. P. KILIMI 9 Court: Ruling delivered today on 10th day of October, 2024 in the presence of Mr. Isack Samsom learned advocate for applicants, also first, fourth, fifth and eighth applicants present. Sgd; A. P. KILIMI JUDGE 11/10/2024 10