20120711 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 91 OF 2012 ROYAL COURT HOTEL LIMITED ............................ APPLICANT VERSUS THE EXECUTIVE DIRECTOR, KINONDONI MUNICIPAL COUNSIL. ................ 1s1 RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT COUNCIL. ............................ 2ND RESPONDENT PERMANENT SECRETARY, MINISTRY OF NATURAL RESOURCES & TOURISM .................. 3RD RESPONDENT ATTORNEY GENERAL. ................................... 41H RES PON DENT MAJEMBE AUCTION MART LTD . ................ ..... 5 1H RESPONDENT RULING B.R. MUTUNGI, J. This ruling is subject to a prayer mode by Mr. living counsel of the Applicant Royal Court Hotel Ltd seeking for interim injunctive orders. 1 .. . . - •.- -~ :....:· .,.(.. >. -· .~ ~... :· . ·'!.•"~~ ..... :·· ---~'! .'"!,-~ - ··_ ' .,,·, . I•' . -►, l,l. :+ Mr. living learned counsel in support of his prayer has submitted that it has been necessary to seek for the said prayer as his client (applicant) will suffer irreparable loss in the event the intended demolition to be carried out by the respondents is effected. He ·clarified further that · the respondents are intending to demolition the landed properties of the applicant which are his legal properties. The applicant has in his possession legal titles which were allocated to him by allocating authorities. The applicant's counsel highlighted to the court that the applicant has invested heavily on his plots to be precise, he has carried out developments which include a school and a hotel. In the event that these are demolished would mean that, he will be permanently· deprived of the said developments and will consequently stand to suffer irreparable losses. The applicant's counsel hos gone further to under sore the fact that the applicant's application hos been brought under the provisions of section 2(1) of the judicature and Application of laws. Act Cap 358 and section 95 of the Civil 2 ··- :_;..- · · · ~ · ~ ~ - - · · : •• J•·...,,.-;_..:··.· ... ··., .,. •".. • • • - .. • •• ·'!: • • ~ ;:~ : . ~ ·' ~~ ;., • • I • Procedure Act, Cop 33 (RE: 2002). The provisions according to the applicant's counsel ore proper in that· there is no requirement of filing a plaint in order the some to be appended. This is so as the first respondent is required by law to be served with a 30 day's notice before a suit can be instituted against them. The legal requirement as for as the fourth respondent is concerned who is also the legal advisor of the second respondent is a ninety days notice which is to be served before one can proceed to sue the fourth respondent. In the prevailing scenario, Mr. Living submitted that as the matter is of utmost urgency due to the ongoing "demolition operation" this is why they have relied on the above provisions. . The learned counsel further prayed that due to the eminent danger involved as his client stands to loose a lot then the court is asked to invoke its inherent powers vested in it by virtue of section 95 of the civil procedure code 1966 (RE: 2002). From the foregoing the learned counsel strongly pleaded that the court should be pleased to grant the 3 interim order sought pending the hearing of the filed application inter-parties. lri support of what he has averred he . has cited the case of Tanzania sugar producers association (Vrs) The Ministry of Finance and the Hon. Attorney General Misc. Civil Case No. 25 of 2003, High Court Commercial Division. As the respondents were served through on a very short notice who are the executive Director, Kinondoni Municipal Council (1 st Respondent) National Environment Management C6uncil (2 nd respondent) Permanent Secretary, Ministry of Natural resources and. Tourism (3 rd Respondent, Attorney General (4 th Respondent) and ·Majembe Auction Mart Ltd (5 th Respondent) two of them Managed to appear and responded to the submission 1n regards to the interim order that was being sought. Mr. John Mnyele representing the 2nd Respondent 1n response has submitted that what actually is before the court is wrongly filed as it is filed on a wrong provision of law which does not concern them. The law that is to have been preffered as against them 1s the Environmental 4 . ~ ;_ . ~. ... ., ',r~ ,., ,, .. ....... ,. '-t" ,~ ••, ,., .. ... "Y r• .,:, .·•·., ~,.., • ':· - Management Act No. 20/2004 whereby the 2nd Respondent as a co-operate entity can sue and can be sued. This is not the situation in this application. It follows therefore that an interim order cannot be issued on a suit which is wrongly instituted before the court. On the other hand Miss Makandoo learned state attorney who was present representing the third and fourth respondents responded that, the application itself is incompetent before the court as it is not accompanied with a plaint. It follows· therefore that a court cannot entertain this prayer as the application itself is incompetent before it. I will first deal with the issue on the law that has been cited and relied upon in this application. Indeed Generally speaking an injunction cannot issue where there is no pending main suit. This is why I find the applicant has done away with order XXXVII Rule (2) of Civil Procedure Code (RE: 2002) and instead have cited section 2 of the Judicature and Application of Laws Act Cap 359. In my settled view this is a proper provision in the circumstances to be found in this case. The first, second and fourth respondents have a pre- 5 ./ condition of being served with a notice in order for one to institute a case against them. The "demolition operation" is already in place and so the thirty days notice and ninety days notice before instituting on action is so long a time · such that if this action by the Government complained of is going to cause loss or injury to any individual who feels aggrieved, would hove long been committed with disastrous consequences to a citizen and which may be irreparable or not monetary wise compensable. The foregoing was what was found by Kolegeyo, J. as he then was in the case of Tanzania Sugar Producers Association {supra) where he also cited the case of Nicholas Nere Lekule Vrs. The Independent {T) Ltd and the Attorney General {Misc. Cause No. 117 of 1996 and Misc. Civil Cause No. 42 of 1998 Tanganyika Games Fishing and Photographic Ltd Vrs. The Director of Wildlife, The Attorney General and Muanauta and company {T) Ltd. I hove also considered that even if the cited provisions were not available to the individual who feels threatened 6 -. . ... ·.• . . ·...... , ....·. :. ... ·• ... ·.· ···~:~.:.~--. .:'"·.:-_.~:/~~ .-. _<~~._ ... '. ·: .'' .· .. , ,· :;, .'_,f : . :,.f• .,. . ' ,l • :t•i \ by the Government's acts, then the court con proceed to invoke its inherent powers under section 95 of the Civil Procedure Code 1966 (RE: 2002) to issue on interim order. what is paramount in my settled view is to see that the ends of justice are met. In the matter before me, the applicant has submitted that he has developed the disputed area extensively on a sincere belief that it was his legal property as he has legal documents to the said effect. In my considered opinion it follows then that for any stretch of imagination if the interim order is not granted then there could be disastrous consequences which need the intervention of this court. I hove gone further and considered the submissions of the two other learned lawyers for the second, third and fourth respondents, these could well be argued during the determination of the application itself as what is being sought at th~ moment is an interim order in relation to the already ongoing demolition exercise. In conclusion I proceed to grant the prayer of the interim order sought pending the hearing and 7 .. ·. ' .. ,_· determination of the application filed to the effect that the respondents ore prohibited from demolishing the properties of the Applicant. I make no orders as to costs. B.R. MUTUNGI JUDGE 11/7/2012 Read this day of 11 /7/2012 in presence of Mr. Living learned counsel for Applicant and Miss Mokondo for 3rd and 4th Respondents and John Mnyele for 2nd _Respondent and holding brief for pt Respondent. B.R. MUTUNGI JUDGE 11/7/2012 8 ,r