petro robert myavilla vs abed joseph mwakibeti and 4 others 2020 tzhc 3606 30 september 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA MISC. LAND APPLICATION NO. 54 OF 2020 (Originating from Land Case No. 05 of2020, High Court of Tanzania at Mbeya) PETRO ROBERT MYAVILWA (As administrator of the late Robert Petro Myavilwa.............................................. APPLICANT VERSUS ABEL JOSEPH MWALIBETI................................................................. 1stRESPONDENT ERICA R. MYAVILWA.......................................................................... 2Nt>RESPONDENT ZERA MYAVILWA................................................................................3rdRESPONDENT RAHIM A.MCHALIKWAO.................................................................... 4thRESPONDENT FAGIO AUCTIONER CO. LTD.............................................................. 5thRESPONDENT RULING Date of last order: 03/08/2020 Date of Ruling: 30/09/2020 NDUNGURU, J. The applicant has brought this application under Order XXXVII, Rule 1 (a), 2 (1) of the Civil Procedure Code, Cap 33 Revised Edition 2002. The applicant in his application prays for the following orders: (a) That this honourable court may be pleased to grant temporary injunction order to the respondents, relatives agent and or workman restraining to the property which is in danger of being Page 1 of 5 wasted, damaged or alienated by the respondents pending the hearing of the main suit on merit. (b) Costs of this application be granted. (c) Any other relief (s) this honourable court deems fit to grant. This application is supported by the affidavit duly deponed by the applicant. Upon service the respondents resisted the application by filing affidavit in reply. When the application was before me for hearing on 03/08/2020 the applicant enjoyed the service of Mr. Jacob Minja advocate while the respondents were represented by Mr. Chapa learned advocate. In his submission for the application, Mr. Minja was of the contention that the 4th respondent be restrained from demolishing the present and reconstruct the new building. He told the court that if the application will not be granted the applicant will suffer irreparable loss. Mr. Chapa for the respondents was of the submission that for the application of this nature to be considered the applicant must show that if the same is not granted he will suffer irreparable loss. He cited the case of Atilio vs. Mbowe (1969) HCD 284. He went further submitting that the house in dispute was sold way back on 07/06/2017 almost three years ago while the application for Page 2 of 5 temporary order is sought 2020, the counsel argued that it is a miscarriage of justice and it intends to prohibit the 4th respondent from enjoying the land which he lawfully purchased. The counsel went on submitting that the applicant has never stated in his affidavit how he will suffer irreparable loss. He argued that it is the 4th respondent who will suffer the loss due to the fact that he has shops and store in the same building. That the 4th respondent has never built a new building but he just constructed the wall to prevent water from entering the shops and store due to the heavy rain during previous season. Mr. Chapa went on saying, the applicant's appointment as an administrator was revoked. Thus he has no ground to stand and convince the court that he will suffer irreparable loss rather it is the 4th respondent and his tenants who will suffer loss. He prayed the application be dismissed. In his rejoinder, Mr. Minja reiterated his submission in chief and added that the applicant is still an administrator of their father's estate. The house subject of this application is the one the applicant is living thus the one to suffer loss. Page 3 of 5 Having heard from both parties I must state that the 4th respondent is an innocent purchaser. As a matter of law the innocent purchaser's rights must be recognized and protected. I thus hold that the 4th respondent being innocent purchaser shall continue to use and enjoy the land promise, but I further restrain him or his agent relative to demolish the structure, make extension or rehabilitate to the extent of making it loose its nature, neither to dispose it in any way, till finalization of the matter, Land Case No. 05 of 2020 which is pending in court. The application is granted to that extent. It is so ordered. D. B. NDUNGURU JUDGE 21/09/2020 Page 4 of 5 Date: 30/09/2020 Coram: D. B. Ndunguru, J Applicant: Present For the Applicant: Absent 1st Respondent: 2nd Respondent: Present 3rd Respondent: Present 4th Respondent: Present 5th Respondent: For the Respondents: Mr. Alfred Chapa - Advocate B/C: M. Mihayo Mr. Alfred Chapa - Advocate: The case is for ruling, we are ready. Applicant: I am ready for ruling. Court: Ruling delivered in the presence of the applicant in person, Mr. Chapa advocate for the respondents and 4th respondent. JUDGE 30/09/2020 Page 5 of 5