salum ishaka an administrator of the estate of the late selemani isihaka selemani others vs nassoro juma fataki an administrator of the estate of the late shekha nasso

IN THE HIGH COURT OF TANZANIA TABORA SUB-REGISTRY MISCELLANEOUS LAND CASE APPLICATION NO. 44 OF 2023 (Arising from Land Appeal No. 31 of2023 before High Court of Tanzania, Tabora District sub-registry) SALUM ISIHAKA SULEIMAN (Administrator of the Estate of the Late Selemani Isihaka Selemani)-------- ------------ 1st APPLICANT KESSY SHARIF............................................. 2nd APPLICANT KHADIJA SALUM @ MAMA SELEMANI........... 3rd APPLICANT VERSUS NASS ORO JUMA FATARI (Administrator of the estate of the late Shekha Nassoro Khalfani) —————— RESPONDENT RULING 07/11/2023 & 30/11/2023 MANGO, J; The applicants preferred this application under the provisions of Order XXXVII rule 1(a), rule 2(1), rule (8) (a), Section 68(c) and (e) and Section 95 of the Civil Procedure Code Cap 33 R.E 2022 praying the Court to issue an order of temporary injunction restraining the Respondent from entering the suit premises, evicting the Applicants and their dependants or demolishing the house situated at Plot No. 338 and 339 Block “F” Gongoni Area, Tabora Municipality until hearing and determination of the Land Appeal No. 31 of 2023. i Before hearing of the application, the respondent lodged a notice of preliminary objection on point of law to wit; i) That, the application at hand is not maintainable and misconceived in the eyes of the law. During hearing of the preliminary objection, the applicants were represented by advocate Kanani Chombala while the respondent was represented by advocate Hassani Kilingo. Mr Kilingo contended that, the law upon which the applicant moved this Court concerned the issuance of restraint order pending determination of a suit while the instant application originates from a pending appeal. According to him, the Applicant had the option to file an application for stay of execution before the Land Tribunal, not this application. He added further that, the applicants have already filed an application for stay of execution before the Land Tribunal which is Application No. 47 of 2023 filed on 07/10/2023. The alleged application for stay of execution originates from Execution Proceeding No. 40 of 2023. It is Mr Kilingo’s contention that, the applicant has filed this instant application praying similar prayers to that of Application No. 47/2023 of the District Land and Housing Tribunal. Referring this Court to the case of Hyasinta Elias Malisa vs The Ministry of Land, Housing & Human Settlements Development &> Others, Civil Application No. 614/17 of 2021(2023] TZCA 17752(11 October 2023) Mr Kilingo stated that, restraint orders pending appeal cannot be legally entertained. He 2 prayed this Court to take the same stance and dismiss the application. In reply, Mr Chombala strongly denied the existence of Application No. 47/2023 which the respondent alleged was filed by applicants before the District Land and Housing Tribunal praying stay of execution. To reinforce his denial, Mr Chombala referred this Court to the 1st applicant’s sworn affidavit by saying that it never mentioned the alleged application No. 47/2023. Making reference to the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] 1 EA 696 Mr Chombala submitted that, a Preliminary objection must be based on pure point of law but in the application at hand, the respondent’s advocate has made a submission based on factual issues which were never pleaded by the applicants. Submitting on a question whether one can file an application for injunction after the appeal has been filed, Mr Chomballa stated that, since the records of the trial Court are moved to the appellate Court on appeal, the appellate Court has powers to grant temporary injunction under Section 68(c) & (e), section 95 and Order XXXVII rule (1) paragraph (a) and Rule 2(1) of the Civil Procedure Code. Based on that reason, Mr Chombala prayed this Court to overrule the Preliminary Objection with costs. In a short rejoinder, Mr Kilingo reiterated that the Preliminary Objection is on legal issue that, the law through which the applicants preferred their application, does not empower this appellate Court to grant injunctive orders. Having carefully considered the parties submissions and after going through the chamber summons, affidavit in support of 3 the application and counter affidavit in resistance thereof the issue for determination is whether the Preliminary objection has merit. As observed in the chamber summons the enabling provisions are Order XXXVII rule 1(a), rule 2(1), rule (8) (a), Section 68(c) and (e) and Section 95 of the Civil Procedure Code Cap 33 R.E 2022 which provides Order XXXVII rule 1 (a) Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree; or rule 2(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right Rule 8(a) The court may, on the application of any party to a suit, and on such terms as it thinks fit— 4 (a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. As rightly submitted by Mr Kilingo the above-quoted provisions do not provide for the issuance of restraint orders on a pending appeal rather they apply to pending suits. The Court of Appeal of Tanzania came across a similar event in the case of Hyasinta Elias(supra) and it observed that applications for injunctive relief are more appropriately suited for the court exercising original jurisdiction. In this application, it is crystal clear that the applicant's application cannot be realised at the appeal stage based on the cited enabling provisions. As to the concern by Mr Chombala that the preliminary objection by the respondent is not founded on the pure point of law, I find the concern to have no basis since the issue raise is purely a legal issue. Moreover, Mr Chombala argued that since the records of the Tribunal are in this Court for an appeal this Court has powers to grant a temporary injunction under section 68 of the Civil 5 Procedure Code. From that argument, I find it appropriate to remind the learned advocate that this is not an appeal, it is an application for a temporary injunction, this Court cannot act on facts which are in another case file even if it is proved that the same is in the Court’s registry. In the circumstance, I find the arguments by Mr Chomballa to be incompatible to the situation at hand, therefore, I sustain the preliminary objection and the application is hereby struck out with cost. / 1 / Z.D. MANGO JUDGE 30/11/2023 Date: 30/11/2023 Coram: Hon. N. W. Mwakatobe, DR Appellant: 1st 2nd " Kanani Chombala, Advocate ord —J Respondent: Agness Simba, Advocate B/C: Mwanaenzi Chuma, RMA Court: Ruling is delivered in chamber this 30th day of November, 2023 in presence of applicants and their Advocate Mr. Kanani Chombala and Ms. Agness Simba, Advocate for respondent. N. W. MWAKATOBE DEPUTY REGISTRAR 30/11/2023