20080403 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 117 OF 2006 OIL COM (T) LTD & OTHERS .............................. PLAINTIFF . VERSUS TANZANIA NATIONAL ROAD } . AGENCY & 2 OTHERS ........................ DEFENDANT RULING RUGAZIA, J. The applicants had to rush to court for protection after the first respondent had served upon them· a 7 days' demolition notice. They had to file this application praying before this court to restrain the respondents from demolishing their landed properties and thereby causing them to suffer irreparable loss before determination of various and serious issues arising from the suit. Reference was made to .the celebrated · case of Atillio vs Mbowe (1964) HCD 284 where. three prerequisites for granting a temporary injunction were stated as: 1 i . The court must be satisfied that 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, The applicant must demonstrate that the court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established, It must be shown that there will be grater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting the injunction. Apart from this case, I was also referred to Sarkar's Law of Civil Procedure 8th Edition Vol.1 pp 1432 -1433 where the distinguished author was discussing the scope and application of Order XXXIX rule of the Code of the Civil Procedure Code, 1908 (India), which is in pari material with Order XXXVII rule 2 of our Civil Procedure Code. The learned author says; "To grant temporary injunction, which is discretionary, one must establish and this is sine qua non (1) A prim.a facie case and (2) the -balance of convenience and should be in his favour and (3) irreparable injury will ensue". 2 It was submitted that at the time of the grant of Titles to the applicants as per annextures to their affidavits and during all the time of construction as per building permits, the said road area now in dispute, was not a highway. In the alternative if any, the applicants averred that the reserved area was only 30 metres from the centre of the road contrary to respondent's claims of 35 metres. The applicants made reference to the relevant statutes setting Road Reserve areas which are the Highways Publication Order 1962, vide Government Notice 471/62 and Highways (Width of Highways), Rules 1966, under Government Notice No. 1/ 1967 according to which the road reserve area for Mandela road is 75ft and not 35 metres claimed by the respondents. In rebuttal, the respondents submitted that it is not true that the road reserve area is 30 metres and not 35 metres. However, the respondents went further · and questioned the applicants' locus standi in this suit. It was contended that the applicants' ownership of the suit premises is questionable. Having gone through the submissions and the documents annexed to the pleadings, I think this point cannot detain us longer. Firstly, to question the locus standi of the applicants was a point raised improperly because preliminary objections should never be 3 I raised in submissions. These can only be raised in pleadings and so, whoever raises them through submissions, should always expect such points to be disregarded. Likewise, this point cannot be given any consideration. From what the contending parties submitted, I entertain no doubt that there are issues which merit trial by the court. Most important is whether the applicants, as contended by the . respondents, have properties within the road reserve. Another issue to be looked into is the actual measurements of the road reserve area. On the injury likely to be suffered, the applicants contended that they have made massive investments amounting to billions of shillings and, also, prayed that due regard be taken of the industrial activities and machineries fixed. The respondents countered that the injury which will be caused to the public by holding the defendants' projects over the suit premises, is greater than the injury to the applicants who contributed to it. It is evident that the applicants have invested though I am not in a position to determine how heavily. However, when this investment is weighed against a national project to be undertaken by the government, by any yardstick,. it cannot be said that an individual is likely to suffer more. Put the other round, the interests of an 4 individual cannot outweigh those of the public. What this means, therefore, is that a national project cannot be made to stall at the expense of individual interests. As I understand it, irreparable injury is that which cannot be atoned by monetary compensation. The injury the applicants are likely to suffer cannot be categorized as such if the issue of compensation arises. In view of the foregoing, I have no reasons to find that the injury can be categorized as irrepable. By the same token, the reasons which have been given in the foregoing, appear to me to cover what is always referred to as the balance of convenience test. This is because, since the applicants can be compensated, the inconvenience to be suffered by the applicants from withholding the injunction cannot be greater than that to be suffered by the respondents from its grant. · . All said and told, I hesitate to allow the application and, in the upshot, dismiss it with costs. P.A 5 .I