shakiru mohamed vs jamira juma 2018 tzhc 2698 30 august 2018

IN THE HIGH COURT OF TANZANIA

AT BUKOBA LAND CASE REVISION NO12 OF 2017 (Arising from District L and Housing Tribunal Land Application No. 14 of 2017) SHAKIRU MOHAMED....................... APPLICANT

VERSUS JAMIRA JUMA................................RESPONDENT

RULING 30/8/2018 & 30/8/2018 M LACH A, J. At the District Land and Housing Tribunal for Bukoba at Bukoba, the Applicant Shakiru Mohamed was sued by the Respondent Jamira Juma, the administratrix of the estate of the late Ghalib Juma in Application No. 14 of 2017 for vacant possession from the land the subject matter of the suit. The suit land is described as land located at Kyatema area, Kemondo Ward, Bukoba Rural District estimated atTshs. 9,000,000/=. It's size could not be shown. Following the filling of the application, an injunction was issued against the respondent which is the subject of this revision. The parties were invited to address the court and dully complied. The applicant appeared in person while the respondent had the services of Ms. Theresia and Anjelo advocates. The applicant being a layman could not speak much. He simply complained that the injunction was issued before hearing. He added that he has stayed in the land for many years and it is his. He requested the court to go through the revision and give justice. i It was the submission of Mr. Anjelo that the aim of the chairman was to maintain status quo and it was good. Counsel proceeded to say that the applicant needed the order to be vacated something which was rejected by the chairman. He supported the position of the chairman. He requested the court to return the record to the lower court so that the

case can be heard on merits. Ms. Theresia told the court that it is not true that the injunction was issued before the filing of the application. She said that the application was filed on 17.2.2017 and the ruling was made on 22.2.2017. I have perused the record closely. The record of the application of 10.02.2017 read thus; "Before R.E. Assey - Chairman Date: 10.2.2017 B/C: Rena th a Members: Parties: Applicant - Absent Respondent - Absent Order: Mention on 28.03.2017. The respondents to be served and attend, the tribunal issue an interim injunction order to the effects that the respondent and agents are hereby prevented from entering, interfering, disposing, construction, building or doing any act whatsoever on the suit premises, prejudicial to the interest of the applicant till this matter is heard interpreter. It is so ordered. 2 Signed. R.E. Assey Chairman 22.02.2017" I have noted several problems with the order. One, the composition of the tribunal was not yet established. The tribunal is composed of the chairman plus two assessors (see section 23 (2) of the Land Disputes Court Act).The chairman in this case sat alone without assessors. Two, the order was given without the opinion of assessors which is mandatory under section 23(2) (supra). Three, the applicant was absent. If the applicant was absent, who moved the chairman to issue the order? This is surprising and

appears as an abuse of powers. Four, the order was issued ex parte without any proper base. It was important, in my view, to establish the base for proceeding ex parte because the applicant had a right to be present in the proceedings. Five, the principles of issuing injunctions were never followed. We don't issue injunctions at will. There are laid down principles. If I may remind the chairman, these are the principles; 1. Whether there is a main suit with serious triable issues on the facts prayed for; 2. Whether the court's interference is necessary in order to protect the applicantfrom the kind of injury which may be irreparable before his legal right is established; and 3. Whether on the balance of convenience there will be greater hardship and mischief suffered by the Plaintifffrom withholding of the injunction than would be suffered by the defendantfrom granting it. 3 (See Atilio V. Mbowe [1969] HCD 268, American Cynamid Co. V. Ethicon Ltd [1975] A.C. 396 (HC), Tanzania Cigarrets Co Ltd V. Mastermind Tobacco (T) Ltd, Commercial Case No. 11 of 2005). Further to that, it was shocking on my side to see the way the order was issued and what followed after the issue of the order. The record show that the order was issued ex parte in the main application on 10.02.2017. It was later cut and pasted in the Chamber Application which was filled a week later, i.e. on 17.02.2017. The

hand written of the application and the coram of the order are clear on this. Without seeing the problems of his order, and assuming to be correct in law and principle, the chairman moved to the suit premises and gave some directives to the court broker as if he had already determined the rights of the parties. As if that was not enough, he directed the District Police Commander (OCD) to arrest the applicant who later subjected to some harassment as a criminal. If the chairman will proceed to behave like this or if any of his colleagues will proceed to behave like this, we cannot avoid complaints from the public. Let the chairman be reminded of his oath of office, the duty to act according to the law and fear of God. That said, it is obvious that the injunction was issued illegally and cannot be left to stand. I exercise the Revision power of this court contained under Section 43 (1) of the Land Disputes courts Act to revise and vacate the order of the chairman. I order so. I direct the record to be remitted to the lower court and the case be heard inter parte by another chairman other than Mr. R.E. Assey. I further direct the case to be given preference in 4 hearing and be finalized within three (3) months from today. I make no order as to costs. C) L.M. Mlacha Judge 30/8/2018 Court: Ruling delivered in the presence of the parties and Ms.Teresia who represented the respondent. Right of Appeal Explained. L.M. Mlacha 'A Judge ,; A'.,--..:- 30/8/2018 5