RULING SITUMAI MWAKYOSA final

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISCELLANEOUS CIVIL CAUSE NO. 346 OF 2025 CASE REFERENCE NO. 202501061000000346 SITUMAI ENOCK MWAKOSYA ................................................... APPLICANT

VERSUS TANZANIA COMMERCIAL BANK ........................................ 1ST RESPONDENT RIKU MANAGEMENT SOLUTION ........................................2ND RESPONDENT IPYANA NELSON MWAIPUNGU .........................................3RD RESPONDENT JUMA WAZIRI MATENGULE ...............................................4TH RESPONDENT THE ATTORNEY GENERAL...................................................5TH RESPONDENT

RULING 11th & 19th February 2025 NONGWA, J. The applicant has moved this court for the orders for maintenance of status quo ante in respect of the applicant's matrimonial home located at Ikulu-Ipinda within Kyela district to be maintained as it was before 03/01/2025 pending the expiry of 90 days’ statutory notice of intention to sue the respondents. That the 1st, 2nd, 3rd and 5th respondents be stopped from interfering with the affairs of the applicant by continuing to forcefully evict her together with her children pending the expiry of 90 days statutory notice of intention to sue the respondents. 1 It is made under section 2(3) of the Judicature and Application of Laws Act [Cap 358 R: E 2019] and Section 95 of the Civil Procedure Code [Cap 33 R: E 2019]. The application is supported by an affidavit of the applicant and opposed by the respondents through their counter affidavits. It is alleged that the applicant is married to the fourth respondent thus, wife and husband and suit premises is the matrimonial home. On undisclosed dates, her husband obtained loan from the first respondent and mortgaged the suit premises as security. That on 19th December 2024 received some documents for his husband, which she later discovered it was notice from the second respondent to sell their matrimonial home. She made inquiries with local government but it was until on 3rd January 2025 when

received notice of eviction to be done on 4th January 2025. It is further alleged that the lending of money and mortgaging the matrimonial home was done in secret and to her exclusion. That as the first is the public company has been served with ninety days’ notice of intention to be sued. As the second respondent has threatened to evict her in the house has filed this application seeking the aforementioned orders. 2 On 14th January 2025, the applicant’s counsel prayed and was granted leave to amend application documents. Upon being served with the new documents, the first and fifth respondents raised preliminary objection that; The Applicant made some amendments in the amended application contrary to the order of the High Court and thus is improper and un- procedural. When the application came up for hearing both parties agreed with the court that in order to expedite these proceedings, the court deal with both matters consecutively. That is should the preliminary objection succeed, the application will be dismissed. However, if the said preliminary objection is dismissed, then the main application will be determined on its merits. The second respondent filed submission on merits of the application. Submission for the applicant is drawn and filed by Mr. Ezekia Mwampaka, learned counsel, whereas that of the objector, the first and fifth respondent by Mr. Joseph Tibaijuka,

learned State Attorney. That of second respondent by Steward Ngwale, also learned counsel. Submitting on preliminary objection, Mr. Tibaijuka submitted that on 14th January 2025, the applicant’s counsel prayed and was granted 3 order to amend application by joining a buyer and to add a word “ante” in the chamber summons. However, the amendment went beyond court order and introduced new paragraph 15 and 16 in the supplement affidavit. He referred to order VI rule 17 of the Civil Procedure Code, the case of Tanzania Harbour Authority vs Mohamed R. Mohamed [2002] TLR 76 and Isdory Joseph Mwepongwe & 5 Others vs Ahamed Mohamed Soud (Administrator of the Deceased Estate of Omari Salum Soud) & 6 Others, Land Case No. 167 of 2021 [2022] TZHCLandD 12451 (25 October 2022; TanzLII) on the position that amendment which goes beyond court order and without seeking leave of the court cannot be entertained. He contended that once pleading has been filed can only be amended by leave of the court which will set the parameters within which alteration or amendment has to be made. As to what was the value of such pleadings, relying on the case of Salum Adballah Chande t/a Rahm Toilars vs The Loans and Advance Realization Trust & 2 Others, Civil Appeal No. 49 of 1997(Unreported) prayed to struck out the supplement affidavit. In rebuttal Mr. Mwampaka stated that the court allowed him to affect such

amendment and file supplement affidavit. Counsel referred 4 to the definition of supplement as discussed in the case of Director of Public Prosecution vs Masunga Muhamali and Another, Misc. Criminal Application No. 2 of 2020 [2020] TZHC 2362 (21 August 2020; TanzLII). He further referred to the meaning of affidavit as per the case of Charles Christopher Humphrey & Others vs Kinondoni Municipal Council, Civil Application No. 456/17 of 2021 [2024] TZCA 277 (18 April 2024; TanzLII) and argued that affidavit cannot be amended but when there are new facts is cured by filing the supplement affidavit. Connecting to the case at hand, Mr. Mwampaka stated that filing of the supplement affidavit was consented by all parties and filed with leave of the court. Relying on the case of Charles Christopher Humphrey & Others (supra) he contended the same was with leave of the court and prayed objection to be overruled. In rejoinder Mr. Tibaijuka maintained that paragraph 15 and 16 of the supplement affidavit is added without leave of the court. From rival submissions there is no dispute that on 14th January 2025 the court granted order to add name of the buyer to the proceedings and in the chamber summons the word “ante” after the phrase status quo and the filing of supplement documents of the 5 application. Counsels are at variance on whether the applicant was allowed to introduce new facts in

the supplement affidavit. Under Order XLII rule 2 of the CPC, it is mandatory that every formal application to the Court must be supported by an affidavit of the applicant or some other person or persons having knowledge of the facts. As a result, parties are allowed to amend their pleading at any time and in case of affidavit, as rightly submitted by Mr. Mwampaka by filing supplement affidavit when new facts are discovered. In the same parity, a party seeking to have the pleadings amended has to specify the nature of amendment sought in order to enable the court to exercise its discretion judiciously to allow or decline the amendments sought. If allowed, the order allowing the amendment must state the nature and extent which must be complied with in amending ones pleading. At hand, the dispute is on interpretation of the order which granted the applicant to file supplement affidavit, while Mr. Tibaijuka is content that it did not authorise to introduce new facts by adding new paragraphs, Mr. Mwampaka has a view that there was no limitation on the order. To appreciate what the order provided I take liberty to reproduce partly what transpired; 6 ‘Mr. Ezekiel Mwampaka adv: Madam judge, before we proceed, I pray to amend the application and also file supplementary affidavit in respect of the buyer one Mwaipungu whom the names have just come to our knowledge. Also I pray to add

the word ante after status quo on 1st paragraph and on second to mention the buyer of the property. That is all. Mr. Tibaijuka SA: I have no objection Order: Prayer granted, application be amended as prayed. Amended application be filed before 15/1/2025 Counter affidavit be filed on or before 17/1/2025 Hearing 27/1/2025.’ The above demonstrates that Mr. Mwampaka prayed to add name of the buyer one Mwaipungu and file supplement affidavit on that respect and also add the word “ante” after status quo. There is nowhere he prayed to the court to add the facts that the applicant has been removed in the house as found under paragraph 15 and 16 of the supplement affidavit and complained by Mr. Tibaijuka. Thus, I agree with Mr. Tibaijuka that the order to file supplement affidavit did not include to add new facts which was not disclosed to the court to make informed decision whether to allow or not. Thus paragraph 15 and 16 of the supplement affidavit which introduces facts 7 that the applicant has been evicted in the house and is living under tree was inserted without leave of the court. Even assuming Mr. Mwampaka is right though not, the purpose and information to be included in the supplement affidavit was well discussed in the case of Charles Christopher Humphrey & Others (supra) and the court stated; Notably, a supplementary affidavit is similar to a regular affidavit, but it is

made to support or supplement an existing valid affidavit not otherwise. It is intended to add more details by providing additional information or evidence to support a case in a legal matter. For example, if a person who has filed an affidavit and later discovers new facts or evidence, he may file a supplementary affidavit to include new information. This can be helpful in supplementing the case or defending a motion. The supplementary affidavit therefore must provide good and sufficient reason as to why the information was not presented earlier.’ In the founding affidavit at paragraph 14 the applicant has disclosed that on 3/1/2025 collected the letter that eviction would be done by the second respondent on 4/1/2025. In the supplement affidavit per the contested paragraph 15 and 16 evictions was done on 4/1/2025. This application was filed on 5/1/2025 meaning at the time of filing this 8 application the applicant had knowledge of her eviction in the house but opted not to disclose this vital information in initial affidavit. Discussing similar position in the case of Charles Christopher Humphrey & Others (supra) declining to grant prayer to file the supplement affidavit the court stated; ‘Considering the nature of the information which is sought to be provided in the supplementary affidavit, we are of the considered view that, it is not a new matter as it was within

the knowledge of the deponent. Thus, the failure of the deponent to state his relationship with the trading business name of Humphrey Building Materials is not a new information to be provided in the supplementary affidavit. On the contrary, it is a fact which was in the deponent's knowledge when he deposed the initial affidavit. Therefore, failure to include that crucial information renders the affidavit incurably defective as it cannot support the application even if the notice of motion is amended to include the last name (Kombe) of the deponent which is missing.’ Given the above, I find merits in the objection and sustain it, I thus struck out the supplement affidavit, so are the counter affidavits on supplement affidavit which were filed by the respondents. On merits of the application Mr. Mwampaka has submitted that the applicant is the wife of the fourth respondent and the suit premise is the 9 matrimonial property which was mortgaged to the first respondent without her consent. He referred to court to section 114(1) of the Law of Marriage Act [Cap 29 R: E 2019] and cited the case of Access Bank Tanzania Limited vs Sophia Salum Seif (The administratix of the estates of the late Fatuma Salum @ Fatuma Salum Seif) & 3 Others, Land Appeal Case No. 3363 of 2024 [2024] TZHCLandD 506 (25 July 2024; TanzLII) on requirement of spouse consent in disposal of the matrimonial

home. Further that the third respondent have been evicted in the house in dispute, this counsel submitted has occasion irreparable loss as the applicant and her children are sleeping outside in the tent during this heavy rain season. Further submission is that the third respondent is cutting and destroying cocoa trees which is the only source of income of the applicant. In support of the argument cited the case of Atilio vs Mbowe (1969) HCD 284. In rebuttal, Mr. Tibaijuka submitted that the first and fifth respondents have not been served with ninety days as alleged and was not attached to the applicant. Further that the applicant has failed to establish conditions for grant of the orders sought. Regarding submission that the applicant has been evicted in the house, it was 10 stated are statements from the bar not reflected in the affidavit. He supported the argument with the case of Fatuma Hamisi Sultani vs TCB Bank Plc & 4 Others, Land Application No. 277 of 2022 [2022] TZHCLandD 858 (31 August 2022; TanzLII) and Rashidi Abiki Nguwa vs Ramadhan Hassan Kuteya & Another, Civil Application No. 431 of 2021 [2021] TZCA 616 (21 October 2021; TanzLII) On his party, Mr. Ngwale admitted the second respondent to have evicted the applicant and fourth respondent after he was given instruction by the first respondent. He contended cases cited by the applicant was inapplicable. In

rejoinder Mr. Mwampaka stated the applicant is the wife of the fourth respondent and sought guidance under section 160 of the Law of Marriage Act that not all marriage is proved by marriage certificate. On argument that ninety days’ notice, it was stated the same was served and not disputed. Content that supplement affidavit was filed with leave of the court, he submitted eviction of the applicant has been proved. I have considered the application documents and rival submissions. Central in all submission is that the applicant has been evicted in the houses. This is one of the rare cases in which application for interim order is sought in absence of the main suit which is always the case. 11 The powers of the court to entertain such kind of matter is embodied under section 2(3) of the Judicature and Application of Laws Act [Cap.358 R: E2019] which enjoins the court to apply the common law, doctrine of equity and statutes of general application in force in England if the matter is not covered in the existing legislations. This is cemented by the holding in case of Tanzania Electric Supply Company (TANESCO) vs Independent Power Tanzania Limited (IPTL) and 2 Others [2000] TLR 324, the court held that; ‘The Civil Procedure Code cannot be said to be exhaustive. It is legitimate, therefore, to apply, under section 2(2) of the Judicature and Application of Laws Ordinance, relevant

rules of Common Law and statutes of general application in force in England on the twenty-second day of July, 1920, where the Code is silent. So the High Court has jurisdiction in a proper case to grant an "interim injunction order" pending institution of a suit or in circumstances not covered by Order XXXVII of the Code.’ This application is for maintenance of status quo ante but in absence of the main suit. From the above cited law, this court has jurisdiction over the matter. In his submission, Mr. Tibaijuka has submitted that no such notice has been issued and served to the first and fifth respondent. In rejoinder 12 Mr. Mwampaka submitted that they served the respondents on 6th January 2025 and it is acknowledged by the respondents. I have perused the application document filed online as required by the Judicature and Application of Laws Act (electronic filing) rules, G.N 148 of 2018 and confirmed that ninety days’ notice or proof of service to the first and fifth respondents was not attached to the affidavit nor proof of service of notice, however, that was not an issue in the joint counter affidavit sworn by Erick Mwaigomole on behalf of the first and fifth respondents. Issuing and serving ninety days’ notice is found under paragraph 17 of the affidavit and admitted under paragraph 15 of the joint counter affidavit by the first and fifth respondent. In that accord,

I reject the argument by Mr. Tibaijuka on competence of the application. Another argument raised is interest of the applicant in the suit house, Mr. Tibaijuka has submitted that the applicant has not produced marriage certificate with the fourth respondent. In reply, Mr. Mwampaka maintained that they were married since 1993 and during rejoinder resorted to issue of presumption of marriage. The issue of marriage between the applicant and fourth respondent will not detain me much as this court is not sitting in matrimonial proceedings or main suit on rights of the parties. 13 Back to the application, the applicant seeks an order for maintenance of status quo ante. The phrase ‘status quo ante’ according to black Law Dictionary, 8th Edition at page 1448 means ‘the situation that existed before something else occurred’. The applicant has submitted that the applicant has been evicted in the suit premise. Mr. Tibaijuka submitted that are statement from the bar. After discarding the supplement affidavit from the record for the reasons stated, in the founding affidavit, there is not statement regarding eviction of the applicant in the suit premise. Thus, I agree with Mr. Tibaijuka that those are statement from the bar. Time without number, the court has emphasized that submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They

are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence. See Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another, Civil Appeal No. 82 of 2017 [2018] TZCA 297 (14 December 2018; TanzLII). 14 Absence of statements in the affidavit regarding eviction of the applicant in the house, implies that the order to maintain status quo ante cannot be maintained and granted for want of supporting evidence. From the above discussion, the application is dismissed. Owing circumstance of the matter I order no costs. V.M. NONGWA

JUDGE 19/2/2025 Dated and delivered at Mbeya this 19th February 2025 in presence of Mr. Ezekia Mwampaka learned advocate for the applicant, Mr. Joseph Tibaijuka and Mary Peter State Attorneys for first and fifth respondents, Mr. Steward Ngwale for the second respondent. V.M. NONGWA

JUDGE 15