Silanga Kimola and Another v Bariadi Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA MISC. CIVIL APPLICATION NO. 8030 OF 2024 (Arising from Land Case No. 20240130000001764) 1. SILANGA KIMOLA KAZI ……………………….…………… APPLICANTS 2. SENI SILANGA KIMOLA VERSUS 1. BARIADI TOWN COUNCIL …………………….………..RESPONDENTS 2. ATTORNEY GENERAL RULING Date of Last Order 09.09.2024 Date of Ruling: 20.09.2024 MWAKAHESYA, J.: This is an application for temporary declaratory orders made under section 95 and Order XXXVII rule 1(a) and (b) of the Civil Procedure Code (the CPC) in which the applicants are seeking to restraint the respondents, their servants, workmen, employees, and agents from entering and doing any activities on a piece of land measuring six acres (the suit land), located at Bundilya street-Majahida, Isanga Ward within Bariadi Town Council in Simiyu Region. The application is supported by a joint affidavit of the 1 applicants. The respondents, resisting the application, have filed an affidavit affirmed by Mr. Mussa Idd Mpogole, Senior State Attorney. The brief background leading to this application is as follows: The applicants are alleging to be the owners of the suit land, having obtained it from the father of the first applicant, it is further alleged that the said piece of land, since the year 1976 until 2016, was used by an entity known as the African Inland Church Pastoret of Majahida as a temporary airport. However, to the applicants’ surprise the first respondent has begun construction of a school, Imalilo Medium School, without consent having been obtained from them. In an attempt to reclaim the land, the applicants have filed a suit before this court and during its pendency they are seeking to restrain the respondents from the use of the land. At the hearing of the application, the applicants were represented by Mr. Geofrey Tuli, learned advocate, while the respondents were represented by Ms. Amina Mkuya, learned State Attorney. Mr. Tuli adopted the affidavit in support of the application and sought leave of the court for the same to form part of his submission. He then 2 went on to submit that, it is the law that, before issuing a temporary injunction, the following must be satisfied: First, there must be a serious question to be tried on the facts alleged and the probability that the plaintiff will be entitled to the reliefs claimed; Second, the applicant stands to suffer irreparable loss requiring the courts intervention before the applicant’s legal right is established; Third, that on the balance there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting of it. It was the learned advocate’s submission that, these conditions were set out in the classical case of Atilio v. Mbowe (1969) H.C.D. 284. Regarding the first criterion he submitted that, there is a pending Land Case No. 1764 of 2024 which is before this Court, where the applicants have sued the respondents for trespassing on the disputed land and from paragraph 2 to 11 of the joint affidavit of the applicants the cause of action and how it arose is explained. The same also explains on how the applicants obtained the disputed land. He concluded that, from the abovementioned paragraph there is a serious question to be tried. 3 Regarding the second criterion, the learned advocate submitted that, paragraphs 12 and 15 of the applicants’ joint affidavit have elaborated on how the applicants will get loss if the application is not granted. On the last criterion, Mr. Tuli submitted that the 12th and 16th paragraphs of the joint affidavit of the applicants, elaborate on how the applicants will suffer more than the respondent, because the applicants have been in use of the disputed land. The learned advocate concluded that the applicants have fulfilled all three criteria and the application should be granted with costs. In response, Ms. Mkuya also sought leave for the affidavit affirmed by Mr. Mussa Idd Mpogole, Senior State Attorney to form part of the respondents’ submission. She went on to submit that, the applicants have failed to fulfil the conditions set out in Order XXXVII rule 1(a) and (b) of the CPC, but also conditions set in Atilio v. Mbowe (supra) and Starcom Consumer Healthcare Ltd. and Another v. Diamond Trust Bank (DTB) and 3 others, Misc. Land Application No. 08 of 2023, HC- Morogoro (unreported) 4 where additional conditions such as public interest and/or public policy were spelt out. With regard to the first condition which is the existence of primafacie case, the learned State Attorney submitted that, the applicants have failed to meet the same because the 1st respondent has been in occupation and use of the land in dispute since 1970 and the same was reserved for public use. With regard to the second condition, irreparable loss, Ms. Mkuya submitted that, at paragraph 15 of the joint affidavit of the applicants they have deponed that they will suffer irreparable loss, however they have not specifically shown how they will suffer the loss. At paragraph 12 of the same affidavit, the applicants have stated that the disputed land has been used for cultivation and earning of income. She was of the view that the applicants have not been able to show how much they were earning and how they will suffer in light of Starcom’s case (supra). Furthermore, the applicants have not been able to show that the loss they claim that they will get cannot be atoned by damages. She submitted that, the second condition has not been met as well. 5 On the third condition, which is balance of convenience, Ms. Mkuya submitted that the applicants have not been able to satisfy the court that if this application is not granted it could be detrimental to them. She reiterated that, the applicants have not been able to show how they will suffer loss if the application is denied. The learned State Attorney added that, the disputed land is public land which is used for public use and there is a construction of a public school going on. Therefore, if the application is granted the surrounding villagers/community will lack access to education. Therefore, she was of the view that, the applicants have not been able to meet this criterion as well. On the last condition, which is public interest/public policy, the learned State Attorney submitted that the court should not be used as a vehicle to injure the society/community. The disputed land is public land which is reserved for public school, and if the application is allowed the surrounding community will be denied access to education. She wound up her reply by stating that the conditions for granting temporary orders being cumulative and the applicants having failed to meet them the application should be dismissed with costs. 6 In a brief rejoinder, Mr. Tuli reiterated his submission in chief with regards to the first, second and third criteria. And on the issue that the land in use is public land, he was of the view that it was premature to decide the same and it will amount to preempting the main suit. On the issue of public interest, he submitted that the same cannot be used to harm citizens who own their land. He reiterated his prayer to have the application granted. Having gone through to the rival submissions by the learned counsels for the opposing parties I shall now proceed to deal with the application on merit. As stated previously, this application has been brought under section 95 and Order XXXVII rule 1(a) and (b) of the CPC. Section 95 provides that: “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” While Order XXXVII rule 1(a) and (b) provides that: 7 “1. 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 (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders: Provided that, an order granting a temporary injunction shall not be made against the Government, but the court may in lieu thereof make an order declaratory of the rights of the parties.” While it might seem, that the proviso to Order XXXVII rule 1 forbids the issuing of temporary injunctions against the Government, this court on numerous occasions has ruled otherwise (see: Tanzania Sugar Producers Association v. The Ministry of Finance of the United Republic of Tanzania and The Attorney General, Misc. Civil Case No. 25 of 2003 (unreported) and National Housing Corporation and Another v. BISH Tanzania Ltd, Misc. Land Application No. 228 of 2023 8 (unreported)). Therefore, I shall proceed to determine this application like any other application for temporary injunctive reliefs. As submitted by the learned counsel for the applicant and echoed by the learned State Attorney for the respondents, the conditions underlying the grant of temporary injunction were laid out in the case of Atilio v. Mbowe (supra), although courts have added other conditions as it can be garnered in Starcom’s case (supra). As for the first condition, that there must be a serious question to be tried on the facts alleged and a probability that the plaintiff will be entitled to the relief prayed, or conveniently termed as establishment of a prima facie case, it is not in dispute that there are two sides contesting for the suit land. On the one part are the applicants, while on the second part is the first respondent. Both sides are claiming ownership and need of use of the suit land. Without going to the merits of the main suit, I am of the view that there is a serious question to be tried and there is also a possibility that the applicants may be declared the lawful owners of the suit land. Thus, the first condition for the grant of temporary injunction has been met. The second condition is that, the court’s interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before 9 his legal right is established. While counsel for the applicants has relied on paragraphs 12 and 15 of the applicants’ joint affidavit to prove that the applicants will suffer loss if a temporary injunction is not granted, the learned State Attorney for the respondents countered his submission twofold: First; that the applicants have not shown how they will suffer loss; and Second; they have not shown how the loss they will suffer cannot be atoned by damages. Paragraph 12 of the joint affidavit of the applicants reads: “That, the 1st Respondent wants to misappropriate and take away the Applicants’ land without due process that would require to be taken potentially, the said instance which was done by the 1st Respondent has caused chaos and uncomfortability to the Applicants in enjoying their sole piece of land which uses for cultivation and earning of income.” Paragraph 15 reads: “That, if injunctory order will not be issued by this Honorable Court the Applicants will yet still suffering (sic) irreparable loss.” It has been well established that, what is meant by irreparable loss is a kind of loss that cannot be compensated monetarily. In Atilio v. Mbowe (supra), the court had this to say: 10 “…the court must be satisfied that the damage which the plaintiff will suffer will be such that mere money compensation will not be adequate…” At paragraph 12 of their joint affidavit, the applicants have intimated that the suit land is used for cultivation and earning of income. A crop yield can be adequately surmised and quantified in monetary terms. Likewise, though the applicants have failed to specify the amount of income that they stand to lose, the same, since it is in monetary terms, can be adequately measured and compensated by way of damages if judgment is entered against the respondents. The mere mention that the applicants will suffer irreparable loss, in the 12th paragraph of their joint affidavit, does not suffice to prove that indeed they will suffer irreparable loss. Those are mere words without a speck of proof. I am, therefore, convinced by the submission of Ms. Mkuya, learned State Attorney, that the second condition has not been met. Considering that the conditions for the grant of temporary injunction must be met cumulatively, and the applicants having failed to meet the second condition, proving that they will suffer irreparable loss, dealing with the remaining conditions is rather academic. 11 In the upshot, the application is devoid of merit and is accordingly denied with costs. It is so ordered. N.L. MWAKAHESYA JUDGE 20/09/2024 12