20140402 TZCA Dar es Salaam

,, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., MASSATI, J.A.,-And-MUSSA, J.A.) CIVIL APPLICATION NO. 235 OF 2014 - - - - - - - - - - - - - - - - - ------·------ SOPHIA AMIRI MRISHO (As Administra_tri~ c,f the estate of the late Amiri MrishoJ.. ~_.__._.. _...._._.. APPLICANT VERSUS NEW SUDAN BUILDING MATERIALS COOPERATIVE SOCIETY LTD ...................................................... RESPONDENT (Applicatiol"! for Revision.from the decisioo__oftbe_.Hi_gh_Court of Tanzania ·· · · · · at Dar es Salaam) (Bongole, J.) dated the 12th day of December, 2014 in Misc. Civil Application No. 285A of 2014 RULING OF THE COURT 16th & 30 th April, 2015 KILEO, J.A.: The application before us preferred under section 4 (3) of the Appellate Jurisdiction Act, Cap 141 R. E. 2002 as well as rule 65 (1), (2) and (3) of the Court of Appeal Rules, 2009 is for revision against the decision of the High Court of Tanzania at Dar es Salaam dated 12th December, 2014. The Notice of Motion which is supported by the affidavit of the applicant, Sophia Amiri -----Mnsho contains a sole ground to the effect that ''in deciding an application 1 . -~------- for injunction the jucfge-went a wrong way in quash/(Jg_?}nd setting_ as(cje th_e decision of the District Land and Housing TfifJunal of Temeke in Misc. Land . I I - -- - - - --------- Application No.105 of2014 dated--Z'd June 2014 which was not a subjeGt in- - t/Je same matter oefore 777m. :''_ _ ___ _ The respondentfileEf--an-af-fidavit in reply which was sworn -t0-by--:J0sef:)h : ' Marwa. -------=ithelmef-facts gIvmg nse to tffisapplicafion show that on znd June · -- --- 2014, the applicant who is the administratrix of the estate of the late ~mifi_____________ _ Mrisho secured an eviction order from the District Land and Housing Tribunal of Temeke vide application No. 105 of 2014 against the respondents. The Respondents filed Civil case No. 121 of 2014 seeking to challenge the said eviction from a yard situate on plot no. 108 Mandela Road. At the same time they filed Misc. Civil Application no. 285A of 2014 (the subject of these revision proceedings) in which they asked the Court 'to issue an order restraining the respondents, their workers, independent contractors, agents, assigns and whosoever working for or with them or under their instructions from evicting the applicant from the suit premises or interfering in anyhow with the lease agreement over the said premises ...... pending hearing of the suit.' The learned trial High Court judge dismissed the application citing Order XXI rule 24 for being incompetent on the ground that an eviction order 2 . - __ ..-·--- - ·-- -- , - -----· ---·· ··---- .. ·---·-· . -- ··-· -- - --~· -- - ---- -~ is-to- b-echallenge_d _gy_ way__g_f_ 9n a12_~llcation of stay- of execution ~md not by ______ _ way ofan· application for injunction. The :learned judge·aia-not end there. ~ He went further and stated- that the-eviGtien order was ineffectual as there .. was a subsisting vallcl zrrcile.ase agreemenLwb1.cn expired on 3at'1;.Uly, 2UTZI:. --- --- : Effectiveness of the eviction -0rEler-was- ,not part of the prayers on the- - ' ' application that was before him. ---Mr.--samson Moamba, learnea advocate representea-tne applicant at ' ' · the hearing of the application. Earlier on he had filed a written submission in support of the application. He asked the Court to adopt the same and had nothing more to add. The respondent was represented by Mr. Edward Chua holding brief for Mr. Amiri Mshana who was reported sick. Mr. Mshana had also filed a written submission in opposition to the application. Mr. Chua asked the Court to adopt the written submission and had nothing to add thereto. Mr. Mbamba, to start with submitted that the High Court lacked jurisdiction to deal with the matter as it was purely a land matter which are justiciable in land courts pursuant to section 167 of the Land Act, 1999. The learned counsel argued further that the learned judge having found that the application for injunction had no merit; he ought not to go a wrong way to disturb the eviction order of the District Land and Housing Tribunal. Citing 3 ,· -· --------- = = - - - =·~ ~"·-- - = - - - - --- •-- -· ----- ··-·- .. ~ -- - - - - - - - - -- -· -- 1 . Jb~-~ase--ofAbdi Ally SaJeh -~~-A~~~-<:~r.!?_Ul)_it Limited & 2 O~h~r~--=------ ---- Civil Revision no. 3 ofZ0TTfunrepo~ted) Mr. Mbamba submittedtnarrrraking a finEling on the eviction order the learned judge exceeded his mandate wli1cnJ1ad to do only w1th7:ne granting or notrne granting of the_ restraint --order--asked for in terms of Order X-XXH -rule-{2-)- sub rule (1) of the Civil Procedure Code. Witn regard to tne issue of Junsd1ct1on, Mr.lv'lsnan,fv,.iasqu1cl<""1o palm --- out that the Land Division of the High Court was abolished vide section 19 of Written laws Miscellaneous Amendments Act, No. 2 of 2010 and as such the High Court generally has powers to deal with land matters. As for the eviction order which the learned judge ruled to be ineffectual, the learned counsel argued that the High Court did not act ultra vires its powers in deciding on the eviction order as it interfered with the lease agreements. Mr. Mshana submitted further that the eviction order together with the lease agreement were central to the dispute before the court. The learned counsel wound up his submission by imploring the Court, on the basis of Article 107 (1) (e) of the Constitution of the United Republic of Tanzania, as amended to disregard technicalities and met out substantive justice. On the issue of lack of jurisdiction by the High Court raised by Mr. Mbamba in his written submission, the answer to this as elaborated in Mr. 4 ' ----- -·----------- ----- -- --·· -~-- - -· . - · · - - - - --- -- -- Mshana's written submission lies in ---sections 17·and ---·- ·- ·- - - - - - - -of - - -19 --the Written Laws Miscellaneous Amendments ·Act, no:-2 of 2010 which amended both the Lana ' I Act, 1999 and the ~and Disputes Courts Act, 2002-. 'High Gellrt Land Division' was substituted for 'Hign Court.' The matter in tneRTgn Courtwas f1lea long after the--Written Laws Misc~llaneous Amendment-s--Aet; No-; 2 of 2010 had come into effect. It would appear, with due respect to Mr. Mbamba that he was ot511v1ous of tne amendments to ffie two pieces of legislation with Yegard ____ _ to the exister,ce of the Land Division of the High Court. The two provisions _____ which amended section 167 of the Land Act and section 2 of the Land Disputes Courts Act respectively, state as follows: 17. The principal Act is amended in section 167 by deleting paragraph (b) of subsection (1) and substituting for it the following new paragraph: "(b) the High Court". 19. The principal Act is amended by deleting the- (a) definition of the term "High Court (Land Division)"' and substituting for it the following definition: "High Court" means the High Court of Tanzania established by Article 108 of the Constitution of the United Republic" (b) term "High Court (Land Division)"' wherever it appears in In view of the above amendments we see nothing wrong with the filing - of the matter in issue in the High Court. 5 - -·- · · · - -- - ---- ---. --- -- --- --·· - - -------···-- = - - . - - - -- ------ ---- - -- -- -----··· ---- . . ComJogJ_Q the-substantive ground on ~IJ~ J.Jotice of Motion, that_ "in the -- - -- course of deciding the application for injuncI7on the judge went a wrong way ' I in quashing and setting aside the decision of the District Land and Housing 7nbunalorTemeke 1n Misc.. Land Appflcahon no 1 fJ575f2VT2/aatecJ?7d-][ffle -- 2014 which was-not-~-st1bject before him"we agree with Mr-;--Mbarnba that indeed the learned judge dealt with a matter that was not before him thus exceeding n,s powers. I ne rel,ertnat were sought before tne Court in-the-· · · ·-------- Misc. Civil AppHcation no. 285 of 2014 w_er_e_:_ _ _ _ _ __ (a) That the court issue an order restraining the respondents, their workers, independent contractors, agents and whomsoever working for or with them or under their instruction from evicting the applicant from the suit premise or interfering anyhow with the lease agreement over the said premises at Temeke District Plot no. 108 Mandela Road, Dar es Salaam pending the hearing and determination of the suit (b) Maintenance of status quo ante till determination of the suit (c) After hearing the parties the learned judge found the application to be incompetent. At page 71 of the record of revision the judge stated: 6 ----· ---------- . --------- .. --·-- --- ------ ----- .- - - - - - ------ --- ---- -- ----- -. 11 Thc1t bee_n__{~ifl s_ajf/ q[JQ __cj9ne/ I find the application incompetent __ --wlficfi deserves a striking out order as I hereby ao." After he had struck out the application he went on and made the - following statement: "Equally, the eviction-orderdated zid June/ 2014 was ineffectual as - there was subsisting valid Z7d lease agreement which expired on J(!h ---7uly2VT~. f-urtner✓ theyd7ease ·agreement whtc/1 ts purportectlcfoe _______ _______ in existence is declared null and void and hence, a prima facie cannot _______ _ emanate from a nullity." The matter before the learned judge was for the issue of a temporary injunction. In Abdi Ally Saleh vs Asac Care Unit Limited & 2 Others (supra) the Court made it clear that at the stage of hearing an application for temporary injunction the court cannot prejudge the case of either party. Nor can it record a finding on the main controversy involved in the suit neither can genuineness of a document be gone into at that stage. The matter before the Court in that case involved an application for temporary injunction which had been filed under Order XXXVII Rule 1 (a) of the Civil Procedure Code. The principles of granting a temporary injunction under Order XXXVII (1) (a) were re-stated in Abdi Ally Saleh case (supra) as: 7 -- -- - ------ -- --- --- ----- ----- __ - -· -· -- --· -- ---·- ,_ . -· . - ·--··--- ---- -· - ··-- - ----- - --- - (i) The :~:1 9i_ntiff must show--a prim a facie case with-f?rqbab!~i!=Y_ of____________ ,. _ success -- --~----- The applicant will suffer-- ir-reparable loss if injunction is not granted, such loss bemg incapable of berng __c_ompensated oy an award of dama9es; -and if- in dou~t; (iii) The balance of convenience in favour of the party who will - suffer greater rnconvenrence rn tne event7:ne rnJunctron 1s -or -----~ is not granted. The same principles apply in ·applications for temporary injunctions under Order XXXVII Rule 2 sub rule 2. Sarkar on Code of Civil Procedure 10th ed. at page 2057 commenting on Order XXXIX Rule 2 (1) of the Indian Civil Procedure Code which is similar to our Order XXXVII rule 2 ( 1) stated: "To grant interlocutory injunction which is discretionary one must establish and this is sine qua non {l} a prima facie case and (2) the balance of convenience should be in his favour and (3) irreparable injury will issue. " The learned trial judge framed two issues whith we do not think were in line with the above principles. At page 67 and 68 of the record he made the following statement: 8 . ------- - ------- , -·---- - - - - - - - - - ' I ,. _ ____,_'~t the outset let me point out_ that Jh~i!I2QlicatiQ[1 and the submissions from the learned counsels raises two issues of considerable iiffportance I whieh requires determination by this court-.- Broadly speaking the two .... issues will reflect on whether to grant or not to grantt!Je reliefs sought. · - 1f1e·issues are as follows: 1. Whether the eviction order and the notice issued against the app7icant wasfrom the 1st respondent. __'h_e_ther the lease agreements referred by_ the .?!.2Pl!cant are valt_d_ _ __ ______2_._Wi so as to create the land lord tenant relationship. F/ We think the framing of the above issues in the application for a temporary injunction was a misdirection. Both issues were issues that could best be tackled in the main suit (Civil case No.121 of 2014) where the respondent was claiming for a declaration that it was a lawful tenant in the suit premises and was not liable for eviction from the same. The learned trial judge ought to have been guided by the principles laid down in the Abdi Ally Saleh case (supra). Having given the matter due consideration, we are satisfied that the learned judge exceeded his mandate in dealing with the issue of eviction and the validity of the 3rd lease agreement which were not matters that were before him at the stage of hearing the application for a restraint order under 9 . -------- ,. ' .QrdgrXXXYII- rule 2 fl) of the Civil Pr6cedu~e _c;qge. _We find that t:tieTearned judge laboured under a misdirettio~ -n,lhe way he addressed h-imself in -- ·-·----- hearing the application for temporary injunction to the extent of nullifying - - - -- the eviction order issued 6y theLJ1stnct Land anorfousing Tri1Jrrna1-an-di:h-e 3rd lease-agreement-which were not ~atters that featt:JFed-for-Gonsideration in the chamber summons for temporary injunction. ' ' ' ~~~ ' The matter has-given us-a-lotortnoughl'. especially ast1Ywh-at extent ~--- ,---- we should revise the~------- proceedings - - - --· pertaining to the application ·------·- -- in the - High ------------------ - -~. Court. We have come to the settled mind that for the purposes of better meeting the ends of justice we should quash and set aside all the proceedings starting from 30/9/2014 when the hearing of the application for the restraint order commenced. In the end result we find that there is merit in the application for revision. We accordingly quash and set aside all proceedings of the High Court from 30/9/2014 and the Ruling dated 12/12/2014 which had the effect of nullifying the eviction order issued by the District Land and Housing Tribunal and the 3rd lease agreement in as long as they were not matters that featured in the Chamber Summons that was before the learned judge for determination. The record of the High is to be remitted to the High for it to hear the application afresh before another judge. Both the judge and 10 ' --·--------- - - - - - - - - - - - ·----·· ·- ·.\t~--~ '-:·•,h.,' .- -confine themselves within the ptinciples-1.maerlying the issuance pf ------- temporary injunc;:tions uRGfei:-Qr-der XXXVII. ne Applicaflon 1s m tb_e event allowe_a_ with coststo the applit}ll1ts. DATED at DAR-ES--SAl;AAM this 2 nd day of April, 2014~----------- , E. A. KILEO - - -- -----------usTICE-oF~-PPE:A S. A. MASSATI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. &fila_""--- P. W. Bampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11 - ---------- -- .. - . --. ---· - _____ ___ -- --------· - .....,. ___ , .....