samwel apollo odiero vs temeke municipal council 2018 tzhclandd 83 13 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC LAND APPLICATION NO 87 OF 2018 SAMWEL APOLLO ODIERO.................................... APPLICANT

VERSUS TEMEKE MUNICIPAL COUNCIL.............................. RESPONDENT

RULING 8/3/2018 & 13/4/2018 MZUNA, J.: Samwel Apollo Odiero has filed this application for an order of temporary injunction against Temeke Municipal Council, the respondent. The application has been brought under certificate of urgency and is preferred under section 68(c) (e), 95 Order XXXVII Rule 1 (a) and 2(1) of the CPC, Cap, 33 RE 2002. During hearing of this application, the applicant was represented by Mr. Onesmo Mpinzile advocate while the respondent was represented by Mr. Christopher Nyunza, the Solicitor. The issue for determination is whether the application meets the conditions for granting of temporary injunction? Arguing in support of the application, Mr. Onesmo Mpinzile, adopted the affidavit of Samwel Odiero. Taken in its totality, the applicant prays for issuance of temporary injunction as there is a pending suit which may be defeated if the temporary injunction is not granted. Further that the balance of convience also favours the applicant than the respondent if the same is not granted. He referred this court to the case of Atilio vs. Mbowe (1969) HCD 284 which laid down three principles to be followed before issuing temporary injunction. That, the applicant will sufer irreperable loss if the temporary injuction is not granted, more so that there is the process of damaging the suit property and therefore may injur the applicant. That, since the main suit is on

ownership of the suit property, then it would be prudent if the temporary injunction is issued to ascertain who is a lawful owner. He further made reference to the case of General Tyre EA Ltd vs HSBC Bank PLC [2006] TLR 60, 61 (H/C). That, the court should balance the danger of granting and or not granting the temporary injunction. Further that at one time there was an application for temporary injunction which was not heard as it was struck out due to the preliminary objection. He prayed for this application to be granted as prayed for the ends of justice. In reply thereto, Mr. Nyunza, the Solicitor submitted that the application which essentially is to stop the respondent from continued demolition of the premise contravenes Order XXXVII Rule 1(b) of the CPC. He strongly objected for the same to be granted because the respondent is a Local Government and by virtue of Order XXXVII Rule 1(b) of the CPC and Art 6, 151 and 145 of the Constitution of the United Republic of Tanzania, defines the Government to include the Local Government. That, even for the issue of maintenance of status quo ante based on the cited case of Atilio vs. Mbowe (supra), there must be a prima facie case showing a probability of success. However, there is no mention whether there is a prima facie case. Responding to the allegation that he will suffer injury or loss, he submitted that the disputed land has

no house any longer. That, it is a parking area for buses and small cars. At times as a garage for repairing cars. That, the cars are moving objects which can be removed. So the loss can be reparable. He prayed for the court not to grant the prayer otherwise, if the same is allowed, then the area should be deserted and neither of the parties should be there. He amplified his point by citing the case of Sultan Bin Ally Bin Hilal El Esri vs. Mohamed Hilal and two Others, Misc. Commercial cause No. 64/2014, H/C Tanzania (unreported). He is of the view that there should be no any activity to continue at the suit premise. That the disputed land is potential for the National economy and the Investment process has stopped. If the injunction will be issued, it will cause the respondent to suffer more and therefore it should not be granted. In his quick rejoinder submission, Mr. Mpinzile, the learned counsel further submitted that the cited provisions under the constitution does not oust the Jurisdiction of the court as stated under Article 107 of the said Constitution. Even the Government must submit itself to the jurisdiction of the court. To cement his point, he said that Order XXVII of the CPC gives discretionary powers to the court not to grant injunction against the Government, however section 2(3) of the Judicature and Application of Laws Act, empowers the court to grant such an

order. A discretionary power. That the existence of a prima facie case is deduced from the fact that there is a filed suit whereby the applicant/plaintiff says owns the suit property legally and stands a chance of success. It touches on the issue of land which he says is very crucial. That the allegation that there are only cars is not true as there are pictures showing the demolition of the building. Half of it has the cars which have been disposed of. He is of the view that the danger cannot be compensated irreparably. He further doubted that if there is nothing at the suit premise, why has he objected it? As for the cited case of Sultan Bin Ali Bin Hilal El Esri (supra) it dealt with a defiance of the temporary injunction by the 3rd respondent. Above all this court is not bound by that case by the principle of precedent. Lastly, he said that the respondent has not shown the suffering he will incur if the temporary injunction is granted. He prayed for the court to grant same as prayed for otherwise the suit will be rendered nugatory. I have keenly followed the submissions advanced for and against this application. The question to ask is, can temporary injunction be issued based on the above facts? Order XXXV11 Rule 1 (a) and 2 (1) of the Civil Procedure Code, to which this application relates, gives incidences upon which temporary injunction may issue. It includes (among

others) that, there is the existence of the suit. That there must be proof by affidavit 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...". In essence, the order for temporary injunction which is being sought, is meant to "restrain the defendant from committing a breach of contract or other injury of any kind..." 5 According to the filed affidavit in paragraphs 5, 7, 8 and 10, there is demolition of the brick wall fence and part of his go-down. That there is likelihood of continuing to do further demolition if the court does not intervene. The allegation that no temporary injunction can issue against the Government is subject to its limitation and cannot apply wholesale otherwise the powers vested to this court under Article 107 A of the United Republic of Tanzania Constitution 1977, Cap 2, RE 2002 (as amended) would be rendered meaningless. That is why the provision has introduced incidences where declaratory right may be awarded in alternative. There was also brought to my attention the cited case of General Tyre EA Ltd (supra) which dealt with a situation where the applicant wanted the court to restrain the respondent, a Banking institution from realising and enforcing its

contractual rights and security upon breach of the terms of the agreement. The court found at page 69, citing with approval various case laws that should the applicant find there was breach of the relevant agreement /contract the remedy was to seek for damages. In the present case as indeed Mr. Onesmo Mpinzile, the learned counsel has rightly submitted, there is a pending suit and the rights of the parties 6 centers essentially on ownership of land and issue of demolition. It has some distinctive features to the above cited case of General Tyre EA Ltd (supra). I am aware that sometimes an order for temporary injunction cannot be issued if recorse can be by way of compensation for damages. The argument that the disputed plot is a parking area or that has no house did not feature in the counter affidavit. It is a long established principle of the law that parties are bound by their pleadings. The respondent is precluded to submit on something new and not covered in the counter affidavit. What was submitted by the respondent in the counter affidavit is that there was compensation paid as stated in paragraph 6 of the counter affidavit. It is my considered view, that is something to be resolved in the main suit, otherwise the court cannot ignore such impending danger. The conditions for granting temporary injunction were laid down in the case of Atilio vs. Mbowe (supra). As well

submitted, there is a land dispute which presuposes the existence of prima facie case and therefore a triable issue, the first pre requisite condition. Above all, to avoid further damages the application must be granted. Lastly, on the balance of convenience, the applicant is likely to suffer more than the respondent as there is a possibility of continued breach if the order is not granted. I should say, though in passing that the cited case of Sultan Bin Ally Bin Hilal El Esri vs. Mohamed Hilal and Two others (supra) cited by the Solicitor for the respondent, dealt with an incident where there was a defiance of the court order leading to court sanction. With due respect, it is inapplicable to the raised argument that the plot should be deserted by both parties. In any case, each case is decided based on its peculiar facts. For the above stated reasons, I proceed to grant the order for temporary injunction for six months. I make no order for costs. M. f? M 7IIM A 13/ 04/2018 Coram - Hon. J. C. Tiganga DR For Applicant: Mr. Elia Mpinga advocate For Respondent: Mr. Elia Mpinga advocate for Mr. Onesmo Mpinzile advocate C/C: Caroline Aloyce ORDER: Ruling delivered in open chambers in the presence of the parties as to per coram. J. C

DEPUTY REGISTRAR 13/ 04/2018 9