20010803 TZHC Arusha

\ IN THE HIGH COURT OF TANZJJ'-i"IA MISC .. CIVIL APPLICATION NO.o 7_ OF 20qJ_ (Originating from Civil Case No. 1 of 2001) • ii.RUSH11 DULUTI LTD. • o o 0 0 0 •oo: · ooo 11 0 O • O 0 APPLICANT ... : .· .THE HON • COMMISSIONER FOR LAND . 1st RESPONDENT r .. •. 0 0 0 0 II & fftJM.AN SETTLEMENTS DEVELOPMENT 000 0 0 0 THE HON. ATIDHN11'Y G~N:8~.AL • • 0' 0 0 o-- 000 000 eoo • I> 0 2nd RESPONDENT ·R. U L I N G MSOFFE 2 J. ..•' .... ._ .. . ,··· .. .:~Jt~_J_s_·.<:w~npl;on .ground ·that -on o/ about tbe 7th day of March, _;. \ .. ndent informing him that its ~itl~.,J!_Q.5835 in respect of the pro- per.t.ies. 6n FarmNo.98/2/1 had -~~en ...revoked on 16/12/99 by command of the President. The revocation was . .published . . ., . in the Official '. ,• ~ . I· Gazette. The said' revocation is the . s~bject of.::c·ontention in this -~- . . :.... . : . ..... ·~ . :- I 'j ::... ·. Court's Civil Case·Noal1/2001 which is ~till·pendingo In the mean- 1 •· 1 : : time, th~ .. · applic,ant Company has filed . _th:_~s . application seeking , . this Court's- 0.rdie!i•· 'that 11 the responder:ts by ~hemsel ves·, their ·\' agents, ·subordinates etc a be ·ordered _to mafntain and or restore··· or caus·e► •to be restored the status~ obta- ined· on the 24th day··of Jantiary·9• 2001 in .respect of_Farm number 98/2/1 pending deterrp;j.11$.·t:ieri .:·or' ·High Court···Misc .. .. . . .. ····· : •· Qivil C0s~·

Nool/200~ or for .. th.~. nex_t..six- months 9 whichever ..: .:·- ...... COIDeS . first 1.1o • . ·., . ) > • ,! ;~ . . ---- .... .. a..vi affidavit of .•. . __, --~ ··- : ·'=:: ,=c • • : •• .. __ . .As usual the application is supported byLone Abbas Moledina? the Mrso Mary So Lyimo learned Principal State Attorney has filed a . Goun:.:;er ~i.ffidavi t on .heha.lf. o.f . the . . respondents.!' -~: In the Counter ·:·· ·: ,- .· A.t'fidavi:t, .:u,nde;r., pa,r_ap;rc.,J.)h 2 ,tJJ.e:·:(~O.,i'1 ti}ere ~s an averm~i.lt which ·-·· - ~- "·: - • ·• . . . . . ., ➔-....... ••• •• • ··- • ~-~- - ~ ••• --·· ---~ • • • • • • • •• • • • • ' ' can be properly ter:ned as a preliminary objection that the appli- cation is incompetent for ~;an't·•of '",JU.ri'sdlctiono In her written submission filed and dated 19/6/2001 Mrs o Lyimo has urg~<l tJJ.at the . . .i,..., .-.......... - ~ . ~• ..''.temporary_ injunction 11 s~mgh_t her,ein. is incompetent ' : • •• ·' , ~!_;· . . •. ·, . in that in ·,, '. • I : _: ,l • · , , . '. ' ~ ', I ~ .• •: , , nctive orders ce.n issue ·against, the. G_overnmerub.t .· . .. Prudence demands that I deal first with .. the so called pre- .;- ::-,;._.... .-:.. ... ·--: _ .... , . . . -.· ... liminary point of objection. Learned Counsel-i.e. Mr., Maro and .. -. : ' ~ ' Mrs., Lyimo have addressed me at length on the pointo i 1hey will excuse me if I will not be as detailed as

they have be2no I agree with Mro Maro that it appears Iv'lrso Lyirno has not attempted to inter- . -~ .. ' ..; .. pret §~Jl and that if she had done so she would have probably arri- ved at a different conclusion~··.· >The i~terpretation given in the was) = a ce.se cited to me by Mr., Maro ...- not only exposes the arnbi- gui ty in the §_ec~_~o~ but goes o;.1. further to show that the §_ecti2E ,,. ~- ~ ,. has a restrictive applicationo Indeed~ this is where I acree with coooooo/3 , ..• 3 Mr. Maro that if o~e .. were to apply· the Section in the instant matter there is .a danger that in the process the Court might end up makirm; an Order declaring the applicant's rights., In the instant matter, all that is sou5ht for is maintenance of the status quo and not a declaration.. Henc.e · S .. 11 would not readily apply in a matter of this nature •. On the merits• of·. the applicationo' ··'As earlier stated, all that. ' . . . is _sought. herein .. is maintenance of statw~'.,qu'o_ pending determination of -Civil Ot?-se Nao :~/2001 or·· for the next six months• whichever comes first.. I have gone through the respective affidavits and the plea- dings in the Civil Case_o It ).s. cle~ therefrom that the revocation is stroni;;ly conte~_ted., Ii;i the. circumstances 9 .it makes sense to" me that . it will be... fai:t . the.:t t:lJ.e status' quo be maintained ae ·prayedo . . .. ~ _ In arriving

at this decis_io~,,.T,-~mi ·mindfu:1 'oi:- the fact that an Order ·for .: .. ' . ~ .. . : a tempor3.ry injunction is m_eant to :p~eserve the status quo·-o_: In the ' . . instant case, the applica~t Company is in occupation of the farIP .,:·· be--- .. ,: fore the revocationo · Since the revocation is•. contested as aforesaid, it is only fair and logical, at this stage, that the said status quo be maintainedo Needless ~o $3Y or repeat, a look at the pleadings. in the suit will show that there-i-s a·serious question to be tried thereon on the revocation in question., For example, the Court will have to look ·Jp:to_') . amon~ other things, whether the applicant was in •• o .o o o o a/4 4 breach of ref'.)'Ul&tion §(?2 and (b) of T..::1-ie Land Ret~lations 1 1968 .. I have also addressed my mind on the balance of convenience. The undisputed fact is that th.e applicant has been in occupation of the land for .about l'+ years and has made some improvements on the land. In my view, if the Order is not granted he stands to.lose quite a great deal because, c;oing by the pleadings, the respondents in ,_are lik~ly to come i:r:✓-.an expansion programme of Ten[;eru Townshipo On the other hand, the respondents do not stand to suffer because the e~pansion programme could always wait, or in the meantime some other land could be allo.cated for'the: projecto I notice that in their respective

submissions, Mrs. Lyimo and Mr .. Maro have addressed me at· length on a number of other matters .. : . . . \ .. which may be of relevance to both the application and the suit. While I commend them for being thOrough, I hold the view that it will be safer that·some of those matters be canvassed at the appro~ priate•time during trial of the suito For instance,matters relating to the Notice dated 2/5/97 9 whether the ~,pplicant attempted to grow some coffee after the revocation etc, are such that they could be raised at the trial where the relevant evidence could be adduced and tested accordingly by way of cross-examination etco c, ooooooo/5 • 5 The a-9plication is allowed. with costs .. J., Ho MSOFFE 3/8/2001 Ruling delivered in Chambers this 3rd day of ./lugust., .2001 in the presence o~ Mr~ Materu for Respondent and holding brief for Mr., Maro for .i1.pplicant .. DISTRICT REGISTRii.R iillUSI-Li. 3/8/2001 JHM/jn ··'.,. -~-.--:~~