omary mohamed wage administrator of estate of the late maenu kidato alias mnayenu kidato vs kitwana mwichande kidato administrator of estate of the late kidato mwichan

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 701 OF 2021 vrMARI MOHAMED WAGE (Administrator of the Estate of the late MNAENU KIDATO alias MNAYENU KIDATO.......... . APPLICANT VERSUS KITWANA M WINCHANDE KIDATO (Administrator of Estate of the late KIDATO MWINCHANDE KIDATO....................... RESPONDENT RULING Date of Last Order: 28/02/2022 Date of Ruling: 23/03/2022 A. MSAFIRI, J The applicant has brought this Application under a Certificate of Urgency, by way of chamber summons under Sections 68(e) and 95 of the Civil Procedure Code, Cap. 33 R.E 2019 and Section 2(1) and (3) of the JALA, Cap 358 R.E 2019. The chamber summons is supported by an affidavit of the applicant Omar Mohamed Wage, seeking for the following orders; 1. This Hon. Court be pleased to order that an ESCROW ACCOUNT be opened in the joint names of the applicant and respondent, to be used for deposit of rental proceeds arising from Plot No. 7 Block 6 Kariakoo, pending the determination of the main suit. 2. Costs of this application be provided for. i The hearing of this Application was viva voce and the applicant enjoyed the services of Samson Mbamba, with Godwin Musa, learned advocates. The respondent was represented by Mr. Chamba, with Hamza Jabir, learned advocates. Submitting in support of the Application, Mr. Mbamba adopted the affidavit and the reply to the counter affidavit to form part of his submissions. He said that it has been necessary for the applicant to file this Application because of the dispute in respect of propriety of administration and ownership of the suit premises. That the dispute is pending before this Court in the main case i.e. Land Case No. 213 of 2021. He submitted that the respondent to this Application is collecting rent on the suit premises while aware that there is a suit involving the dispute on the said subject matter. He argued that it is in the interest of justice that an interlocutory order be issued in order to preserve the subject matter of the pending suit, he added that the application is necessary to be made in order that the main suit should not be rendered nugatory. He stated that, there is a prima facie case and a genuine dispute for the Court to issue the sought order, and that if the order will be granted, Escrow Account will be opened in the names of both parties so, none of the parties will either be prejudiced or benefit. To support his submission, he relied on the case of Abdi Ally Saleh vs. Asac Care Unit Ltd and 2 others, Civil Revision No. 3 of 2021 (CAT) (unreported). In addition, Mr. Mussa also for the applicant stated that, among the claims of the applicant in the main suit is about the rental income of the suit 2 property amounting as stated at paragraph 5 of the affidavit. That, it is because of this amount which continue to accrue, and it is directed to be deposited to the account owned by the respondent that the applicant has to seek orders sought in the chamber application. He submitted further that, the application is made in good faith to protect the property which is the proceeds of rental charges, so that upon determination of the main suit, the rightful beneficiaries would be able to get their share of inheritance. He argued that, the application meets all the requirements set by the law in this kind of application. Responding to the applicant's submissions, Mr. Chamba, prayed to adopt the counter affidavit of the respondent to form part of his submissions. He submitted that this application has been brought under the provisions which does not warrant this Court to grant orders sought in the chamber summons. He referred the case of TANESCO vs. IPTL & 2 others (2000) TLR 324. He stated that, the applicability of section 68 (e) and 95 of the Civil Procedure Code, are intended for the applicant to preserve the subject matter of the main suit, and in the main suit, the subject matter is the ownership of the suit property and not the rental proceeds sought by the applicant. Mr. Chamba said that to order the rental proceeds to be collected jointly by the parties, this Court will be issuing a monetary judgment contrary to the spirit of the provisions of Section 68 (e) and 95 as it was elaborated in the case of TANESCO vs. IPTL & 2 others (supra). /1/ / / p. 3 That it could have been proper if the applicant had applied for injunction to suit property itself from being alienated as the property is the subject matter of the suit. On the issue of which of the party will be prejudiced if the sought order is granted, Mr. Chamba submitted that the affidavit does not support that claim. However, the respondent will be highly prejudiced because as the statutory owner, the respondent is required to pay statutory rent out of the suit property such as land rent. Also he has to maintain the property and that maintenance comes from rent. He prayed that this application should be dismissed in its entirety, with costs. The applicant made a rejoinder which I will also consider in the determination of the application. The major issue I am called upon to address, is whether the prayers sought by the applicant should be granted or refused. I feel I should start my deliberations on this application by associating myself with the findings of the learned brother Hon. Dr. Nangela, J, in the case of Herbert Eliezar Liwali vs. Bay View Properties Limited, Misc. Commercial Application No. 110 of 2021, High Court Division (Unreported) that; "an injunctive order, be it permanent or temporary injunction is an equitable remedy. It may be for a range of purposes from that of restraining certain actions from being taken, to presentation of interferences of some kind, to furnish preventive relief against irreparable injury or the maintenance of status quo" (emphasis added). . 4 In the case of Abdi Ally Salehe vs. Asac Care Unit Limited & 2 others,(supra), which was referred to this Court by the counsel for the applicant, the Court of Appeal reiterated the three principles of granting a temporary injunction as was set in the famous case of Attilio vs. Mbowe (1969) HCD 284. The principles briefly are; the existence of a prima facie case, imminent irreparable loss incapable of being atoned by way of damages and balance of convenience. It is clear, in my view, and from observation of pleadings, that the first principle which requires existence of a prima facie case to be tried by the court of law has been established. My reason for this observation is that there is pending in this Court a Land Case No. 213 of 2021. The major dispute in the said suit is the ownership of a land property which is described as Plot No. 7 Block 6 located at Kariakoo Dar es Salaam. The applicant is the administrator of the estate of the late Mnayenu Kidato and he is a plaintiff in the main suit. He claims in the main suit that the late Mnayenu Kidato is the lawful owner of the suit property. He seeks for the Court's declaration that the suit property is part of the estate of Mnayenu Kidato. He claims further that the transfer of the suit property in the names of the late Kidato Mwinchande Kidato was illegal, improper and unlawful. At the same time, the respondent is the administrator of the estate of the late Kidato Mwinchande Kidato and he is a defendant in the main suit. He claims that the said Kidato Mwinchande Kidato is the lawful owner of the suit property having bequeathed by the late Mnayenu Kidato by way of gift. In their submissions, the counsels for the parties have gone deeper into merits of the case. However, at this stage as it was observed in the case 5 of Asac Unit Care (supra), the Court's only duty is to see whether there is a prima facie case and not to prejudge the case of either party. Basing on that, I find that there is a bonafide contest between the parties and a serious question to be tried. So, the first principle has been met. On the second principle that there is imminent irreparable loss incapable of being atoned by way of damages, I should point out that the relief sought in this application is one kind of injunctive relief which aims at preserving the pre-dispute state until the trial and determination of the main suit or until a named day or further order(s). (Reference is made to the case of Asac Unit Care (supra). Also as observed in the case of Herbert Eliezar Liwali vs. Bay View Properties Ltd (supra), an injunctive order being an equitable remedy, may be granted for a variety of reasons including but not limited to prevention of interferences of some kind, to furnish preventive relief against irreparable injury or even need to maintain the status quo. In the present application, Mr. Mbamba for the applicant submitted that, it is in the interest of justice that an interlocutory order be issued in order to preserve the subject matter of the pending suit. That it is necessary that the sought order be granted in order that the main suit should not be rendered nugatory. That this application is made in good faith to protect the proceeds of rental charges so that upon determination of the main suit, the rightful beneficiaries would be able to get their share of inheritance. Mr. Chamba for the respondent vehemently argued that the subject matter of the main suit is the ownership of the property itself and not the rental proceeds. 6 I have considered very valuable and argumentative submissions from both parties. With respect, I agree with Mr. Chamba that the subject matter of the main suit is the ownership of the suit property. However, I believe that the suit property and rental proceeds are inseparable. The suit property as I have gathered from the pleadings, is a business property which generate rental proceedings. Hence, since there is a dispute over the ownership of the suit property, then there is a dispute as to how and who should collect the proceeds now the issue of ownership is set to be determined by a Court of law. The applicant is arguing that, the respondent has opened an account in his name and instructed the tenants to deposit rental payments therein. The respondent is claiming that he is the registered owner of the suit property and has never distributed or shared the rental proceeds with anyone. In the circumstances, I am forced to agree with the applicant that, for the interest of justice, it is convenient to protect the rental proceeds coming out of the suit property pending determination of the main suit so as the same is not misused. In this circumstances, since both parties are the administrators of the estates of the deceased who are both claimed to be owners of the suit property, then not granting the application might not prejudice either of parties, but the third party who are the beneficiaries of the estate and are not party to this application or to the main suit. On the balance of convenience, I once again associate myself with the decision in the case of Herbert Eliezar Liwali (supra), whereby the case of Africa Construction Company Ltd and Another vs. African 7 (T) Group Ltd and 2 others, Misc. Commercial Application No. 182 of 2020 (unreported) was quoted whereas this Court observed that; "the granting of the prayers sought in an application like the present one is also propelled by interest of justice and fairness....." From this, I have considered that the relief sought is an equitable relief, so for the interest of justice and fairness, I have weigh on the arguments in the pleadings and submissions by the parties and I am of the view that the balance of inconvenience lies on the applicant and the beneficiaries of the estate of the late Mnayenu Kidato if this application will not be granted. It is from the totality of the above analysis that I find this application to have merit. In view of this finding, this court hereby orders as follows; 1. The Application is hereby granted. 2. The applicant and respondent to jointly and within a month from the date of this Ruling, open an ESCROW ACCOUNT to be used for deposit of rental proceeds arising from Plot No. 7 Block 6, Kariakoo, Dar es Salaam pending the determination of the main suit which is Land Case No. 213 of 2021 before this Court. 3. The costs of this Application to be borne by each party. It is so ordered. Dated at Dar es Salaam this 23rd March, 2022. 8