20150324 TZHC Dodoma

• IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DODOMA MISC. LAND CASE APPLICATION NO. 12.OF 2015 OMARY SHABANI S. NYAMBA (AS THE ADMINISTRATOR OF THE ESTATE OF THE LATE IDDI MOHA DECEASED)..................APPLICANT VERSUS THE REGISTERED TRUSTEES OF THE DAR ES SALAAM YEMENI COMMUNITY FOR CHARITY &CULTURE (DYCCC) ............................. 1st RESPONDENT BAHAJ CONSTRUCTION WORKS LIMITED .................... 2nd RESPONDENT RULING last Order 10/03/2015 Ruling 24/03/2015 A. MOHAMED, J. This application was filed under a Certificate of Urgency and supported by the affidavit of Omary Shaban Nyambu praying for injunctive orders... against .th . 1st. Respondents, the Registered Trustees of the Dar as Salaam Yemeni Community for Charity and Culture ( hereinafter " fhë D'{CCC")and the 2nd Respondent who is a building contractor. 1 The Applicant is the administrator of the estate of the late lddi Moha and appeared in person whilst the respondents were represented by Mr. Nyabiri, learned advocate. Briefly the applicant contends that he is the lawful owner of Plot No. 21 Block 16 Mjimpya in Dodoma Municipality (hereinafter "plot 21"). He prays to this Court for injunctive orders to restrain the Respondents from entering or demolishing a house on the suit land which he claims will cause irreparable loss to the beneficiaries of the deceased pending hearing of his appeal before this court. In support of his application, the applicant has attached annextures to his affidavit including letters of administration of the estate of the late Iddi Moha, GN. No. 206 of 5/3/2010 detailing the deceased's assets and liabilities and properly tax receipts in respect of Plot 21 to the Dodoma Municipal Council. He has not attached., thereto any document such as a letter of offer of a right of occupancy or a certificate of occupancy. Mr. Nyabiri , Learned advocate for the RéspOndénts objected to the grant of injunctive orders against his clients by submitting that the application has no basis at all. 2 He argued that issuance of temporary injunctions is guided by principles in Order XXXVIII R. 1 (a) of the Civil Procedure Code Cap 33 RE 2002 of the laws which are against the applicant's prayer. In support of his submissions he cited the case of Attilio V. Mbowe (1969) HCD at p. 284 by stressing that the Court has to take into consideration three principles before issuance of injunctive orders. He quoted Nelson's Law on Injunctions, 4th Edition at page 2 which reads:- "The aim of an injunction is to preserve and protect the suit property ........The power to grant injunctions should be cautiously exercised and that upon clear and satisfactory grounds." He further submitted that the. applicq nt cannot suffer irreparable loss as he has no clear legal rights on Plot No. 26 Block 16 Mjimpya (hereinafter "Plot No 26"). He stated that the applicant's claim is in respect of Plot No. 21 Block 16 Mjimpya. The learned counsel further contended that Plot No. 21 Block 16 Mjimpya is nonexistent. This is according to the report of 3 an official Search over the alleged Plot No. 21 Block 16 Mjimpya dated 20/2/2015 and signed by the Assistant Registrar of Titles from the Ministry of Housing and Human Settlements Development which confirms there is no record of Plot No. 21 Block 16 Mjimpya in Dodoma Municipality. He therefore contended that if this court grants an injunction against the development of Plot No. 26 Block 16 Mjimpya, the respondents will suffer irreparable loss. He further submitted that the respondents entered Plot No. 26 Block 16 Mjimpya and not Plot 21 Block 1 6 Mjimpya which are two distinct plots. The Respondents attached a letter from the National Supreme Council of Tanzania Muslims dated 3/3/2000 requesting the Capital Development Authority to transfer ownership of Plot 26 to the 1st respondent1 a Sketch map showing details of Plot No. 26 Block 16 and a Ground Lease Agreement from the Capital Development Authority. Lastly he submitted that Order. XXXVII Rule 1 (a) and 2(a) of the CPC under which the application is grounded covers issuance of an injunction to a property in dispute. He submitted that Plot No. 26 Block 16 Mjimpya is not a property in dispute. 4 In rejoinder, the applicant submitted that there was a contest between the parties to wit the pending Appeal No. 4 of 2015 scheduled for mention on 31/3/2015. He further submitted that if the injunction will not be granted, the heirs of the late Iddi Moha will be denied of their only abode fearing the house on the disputed plot might be demolished. Countering the respondent's claim that the applicant had no clear claim against the respondents, the applicant submitted that the annextures to his affidavit, particularly the capital tax receipts do prove that Plot 21 Block. 16 is in existence and a house stands thereon. He concluded by praying this Court to grant his prayer for injunctive orders against the respondents. Having heard both parties, I will consider the applicant's prayer for injunctive orders bearing in mind the following conditions precedent for issuance of such orders:- Whether there is a bona tide contest between the parties. On which side, in the event of the plaintiff's success will be the balance of inconvenience be if the injunction does not issue 5 3. Whether there is an occasion to protect either of the parties from injury known as irreparable loss before his right can be established if the prayer is not granted As regards the first condition, I do agree that there seems to be a contest between the parties over a piece of land. Both parties either stake a claim over the same piece of land with different references or over two differing pieces of land. At this juncture I cannot dwell on this issue as it will be heard and determined in the main suit. In regard to the condition that on a balance of convenience, which party would be inconvenienced should the injunctive order issue, I find that it is in favour of the respondents as the ]st respondent has incurred costs in engaging the 2nd respondent who is a civil contractor to develop the suit land. He is developing the suit land by building and enhancing its value. Restraining the 1st and 2 nd respondents from developing the suit land will cause delays and thereby occasion both damage in terms of costs and other inconveniences. On the question whethe1 the applicants will Suffer irreparable loss if the court declines to grant the injunctive orders sought, I find the answer to be in the negative. In the case of T. A Kaare V. G. M MCU (1984) TIR at p. 24, it was held that:- " ... irre parable injury is not meant that there must be no physical possibility of repairing the injury but merely that the injury would be material i.e. one that could not be remedied by damages" I find this principle applies equally in this case. Even if the applicant is evicted or his property demolished, he has a remedy in claiming for monetary compensation from the respondents in the said pending land case. In fact the applicant will be better compensated by the enhanced value of the land. In the final analysis I agree with Mr. Nyabiri the respondents' learned advocate's submission that this Court cannot grant an injunction against the respondents as the applicant's prayer is for an injunction against the respondents in respect of Plot No. 21 Block 16Mjimpya-whereasthe ]st responden.t owns Plot 26 Block 16 Mji mpya which is not in dispute. From the foregoing , I find that the application has no merit and hereby dismiss it with costs. 7