rehema ally mdoe vs theodest byarubaga ruganisa 2019 tzhclandd 56 23 september 2019

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SLAAM MISC LAND APPLICATION NO. 345 OF 2018 (Original from Land Case No. 288/2017) REHEMA ALLY M DOE............................. ................... APPLICANT VERSUS THEODEST BYARUGABA RUGANISA....... ................RESPONDENT RULING Date o f Last Order: 23/09/2019 Date o f Ruling: 27/09/2019 MALLABA, J According to the Chamber Summons, the applicant herein, Rehema Ally Mdoe, applies for: One, temporary or interim injunction, to restrain the respondent, their agents and servants, from trespassing on the property in dispute, located at a land measuring 40 meters length and 24 meters width at Kibaga-Tabata, Kinyerezi on a street known as Muhanga Secondary School Page 1 of 7 within Ilala District in Dar es Salaam City and Region; or interfering in any manner with the said property in dispute, pending full determination of this application interpartes or the main suit. Two, for maintenance of the status quo which existed before the respondent decided to bring the tenants in, and be maintained or alternatively, an order for all revenue collected from tenants renting the property in dispute, be deposited in a specific special account recommended by this court, until full determination of the main suit. Three, extension of the temporary/interim injunction pending determination of the main suit. Four, permanent injunction restraining the respondents, their agents and servants, from interfering and trespassing on the property in dispute without lawful cause. Five, compensation for any loss of income, loss of business, damaging reputation and any kind of loss suffered by the applicant after illegal acts of the respondent to trespass and prevent the applicant to enjoy lawful occupancy obtained. Hearing of the application proceeded by way of written submissions and the submissions went in accordance with the schedule given by this court. Page 2 of 7 The Chamber Summons to move this court, cited the enabling provisions as being Order XXXVII Rule 1 (a) of the Civil Procedure Code (Cap 33 RE 2002). The provision cited empowers this court to issue orders of temporary or interim injunction. Because the enabling provision supports only the application for temporary or interim injunction, that is the only application which this court will deal with. In addition, the 2nd application is supposed to be only part of an application for temporary injunction. Also, orders of maintenance of status quo only apply to stay the position as obtainable on the date and time of issuance of the order, not before, as it has been applied for in this matter. The 3rdapplication, which is for extension of the temporary injunction, would apply only where there is already in existence, an order of temporary injunction and such order needs to be extended. The application is inapplicable in the circumstances of the present matter, where there is no order for temporary injunction already in place. The 4th application is for permanent injunction, which may not be issued in the interim. Such order may only be issued as a remedy in a substantive suit or application, as the case may be. The same applies to the 5th application. An order for compensation may only be issued at the end of a substantive suit or application if a party deserves such remedy. Page 3 of 7 As already indicated, this court may only deal with the 1st application, the application for temporary or interim injunction and that is the only application this court will deal with. The law governing grant of orders for temporary injunction is Order XXXVII Rule 1 of the Civil Procedure Code. As already indicated, this is the provision which was cited by the applicants in their Chamber Summons. Apart from the statutory provisions, principles regarding grant of temporary injunction were also exemplified in a number of court decisions. Some of the decisions include the case of Attilio V. Mbowe (1969) HCD 284, which was also cited by the respondents. Other cases include Giella V. Cassaman Brown & Co. Ltd [1973] EA 358 and American Cyanamid Co. V. Ethicon Ltd [1975] AC 396. This court will consider those authorities in the evaluation and analysis of the application. The statutory requirements in Order XXXVII Rule 1 of the Civil Procedure Code include the following: There should exist a main suit or substantive application. In the present matter, the affidavit in support of the application Page 4 of 7 mentions in paragraph 2 that, there exists Civil Land Case No. 288 of 2017. Thus, the first requirement exists in this matter. The second requirement is that, there should be property in dispute in the main suit or substantive application, as the case may be, which is in danger of, among others, of suffering loss of value by any party to the suit. In the present matter, the main suit is for trespass on property. Although the applicant claims that there is property is in danger of suffering loss of value, this court does not see any. Thus, the 2nd requirement in the views of this court, does not exist. In the circumstances, this matter fails on the second requirement. Even if all the requirements under Order XXXVII Rule 1 (a) of the Civil Procedure Code had been met, the provisions provide that, the court may, by order, grant temporary injunction to restrain such act or make such other order, for purposes of staying and preventing, among others, the loss in value in regard to the property as the court thinks fit. In other words, these court's powers are discretionary. To guide the use of such discretion, court decisions in Atilio Vs. Mbowe (supra), Giella Vs. Cassaman Brown & Co. Ltd (supra) and American Cyanamid Co. V. Ethicom Ltd (supra), lay down principles to be applied. The principles include: First, there must Page 5 of 7 be serious triable issues between the parties with a probability that it may be decided in the applicant's favour. Secondly, the circumstances should be such that, if the court does not issue the order, the applicant would suffer irreparable loss if he subsequently succeeds in the action. Thirdly, on a balance of convenience, the applicant stands to suffer more if the injunction is refused, than what the respondent would suffer if granted. In the present matter, this court will go through the principles stated above, to see whether the three conditions have been met or fulfilled. On the first principle, there is, in the view of this court, serious triable issues between the parties in the main suit. This is because, the applicants are claiming to have ownership of the house in dispute. Without going into detail for fear of prejudging the matter, on the face of it, there is a probability that the suit could be decided in the applicant's favour. In the circumstances, this court finds the first condition as having been met or established. Coming to the second condition or element, this court has not been shown any irreparable loss which the applicant will suffer, which may not be compensated for in monetary terms at the conclusion of the suit, if the Page 6 of 7 applicant emerges a winner. It has also not been shown that, there is property in danger of being wasted, damaged or alienated or of suffering loss of value by reason of its continued use by the respondents. This condition or element has not been established. As regards the third condition or element, because the subject matter of the suit may not be destroyed, there is no harm that will be caused to the properties. In view of the fact that not all the conditions or elements for the court's use of its discretion as provided for in different court decisions has not been met or established in the applicant's favour, this court uses its discretion to refuse to grant the order of temporary or interim injunction sought by the applicant No order as to costs. It is ordered accordingly. 27/09/2019 Page 7 of 7