novoneiwa tumaini mziray versus the commissioner for lands ministry of land housing and human settlement development 2 others 2023 tzhclandd 16618 30 june 2023

c IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.304 OF 2023 (Originating from Land Case No.78 of 2023) NOVONEIWA TUMAINI MZIRAY APPLICANT VERSUS THE COMMISSIONER FOR LANDS, MINISTRY OF LAND/ HOUSING AND HUMAN SETTLEMENT DEVELOPMENT RESPONDENT THE ATTORNEY GENERAL 2"" RESPONDENT MWEMA SALUM PUZI 3^ RESPONDENT RULING Date ofLast Order: 20.06.2023 Date ofRuling: 30.06.2023 T.N. MWENEGOHA,3 This Is an application for injuction, made under section 68(c)pf the pyjl Procedure Code, Cap 33 R.E 2019. The applicant has prayed among others, an interim order, restraining the respondents and any other person working under their instructions, from deveioping, committing waste and or alienating Plot No. 9 Block E, Tegeta Low Density Area, Dar es Salaam, pending the final determination of the main suit (Land Case No.78 of 2023). The application was supported by the affidavit of the applicant, Navoneiwa Tumaini Mziray. 1 • (• The same was heard by way of written submissions. Advocate Egid S.M. Mkoba appeared for the applicant. His arguments were guided by the case of Atilio versus Mbowe,(1969) HCD 284, where it was emphasized that for Injuction order to be given, the applicant must meet three conditions as follows. Firstly, there must be a primafacie case between the applicant and the respondents. That, the issue in need of the Court's attention is an act of trespass done by the respondents into the suit property as stated under paragraph 9 of the affidavit. They have already demolished part of the fencing wail and if they are not restrained, particularly the 3'^ respondent is likely to proceed further intrusion. And to avoid breach of peace, the Application is to be allowed. In reply, Frida Moiiei, learned State Attorney for the I®'and 2"'' respondent relied on the case of T.A Kaare versus General Manager Mara Cooperative Union (1984)TLR 17. The principles given in this case were borrowed in Atlilo versus Mbowe,(supra). She insisted that, the applicant has failed to prove that she Is within the conditions stated.in the two cases. The rules are settled that, for Injunction to be allowed,.ail three conditions must be met as stated in Christopher P Chaietversus Commercial Bank of Africa,,. Misc. Civil Application No. 635 of 2017 High Court of Tanzania,(unreported). Her arguments were supported by Advocate Mbuga Jonathan, for the 3"" respondpt. He insisted that, the conditions for Injunction were not met in .totality. Therefore, the remedy asked by the applicant cannot be granted. Having gone through the submissions of the parties through their.iearned counsels, affidavit and counter, affidavit for and against the Application, the question for determination is whether the Application .has, merits,ior not. 2 . • ' I ti l t •" 1 Both parties have relied their arguments in the case of Atilio versus Mbowe (supra) which was also quoted in T.A Kaare supra. In my opinion, as argued by both counsels for the respondents, I agree that the applicant has failed to satisfy this Court that, he has to be granted the relief sought. In his submissions, the counsel for the applicant just showed an existence of primafacie case, between the applicant and the respondents. He did not at ail argue on the likelihood of loss that may happen to the applicant if the respondents are not restrained from doing the actions complained of. Further, the applicant's counsel was duty bound to show if the loss if any, cannot be compensated by monetary loss, and lastly if on balance of inconvenience, the applicant is likely to suffer more harm than the respondents. All these facts are missing in the submissions by the applicant's counsel. Therefore, under such circumstances, this Application cannot be allowed. As settled, ail conditions must be met for the Court to properly exercise its discretion in favour of the applicant, see Christopher P Chafe versus Commercial Bank of Africa,(supra). In the event, I find the Application to be devoid of merits. Consequently, the same is dismissed. No order as to costs. OF O % o V T.N I4WENEG0HA, o 2: JUDGE, o S s; 30/06/2023 s * LAW