19990122 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 49 OF 1998. SOSPETNDALAHWA ................APPLICANT

VERSUS NATHANIEL & 5 OTHERS ............ RESPONDENT RUT. I NG KALEGEYA._J. The Appellant, Sospter M. Ndalahwa. is the plai.ntiff before the K.isutu Resident. Magistrates' Court while the Respondents. Nathaniel. Chamlomo. Patric. chaml.omo. Yona Chamiomo. Saiilo Chamlomo. Cyrian Simon and T4alidi Salehe are defendants. The Aooel.iant sued for a declaration that a. oi.ece of land lvi.no between the land he occ.ui.es and that occnoied by resoondents is a public road and therefore should not he blocked by the latter. Pending the hearina of that suit the Appellant applied for issuance of a "temporary injunction to restrain the respondents, their agents ancl\or any body claimino under them from blocking. and\or interfering with the Dublic road which separates the plots of the applicant and the respondents at p.iot.s No. 452\1.. 453\1 Block C Sitakishari area : Dar es Sal.aa.m". The said application was dismissed hence an appeal by Appellant to this court. Mr. Kalo].o. learned Counsel reprsent,ed the appel.... ant. in this court wl-rrl.e Respondent-. s st.00d on their own. The Appel].ant's complaints are that the learned trial. Magistrate erred in law in dismissing the Appellants' application without directing himself to the law on injuction. and also in refusing to order maintenance of status auo pending determination 1 of the suit. During hearing, Mr. Kalolo reiterated this,

adding that the court considered neither 0. 37 CPC nor principles of law as pronounced under case law (referred toAtilie Mbowe (1969) MCD No. 284; (MC) Alex Omari Mwaro v Shirika la Uchumi na Maendeleo, Civil Application No. 55 of 1993 - Arusha Registry, unreported and Principles of injunction by Richard Clobber, pages 33 and 34). The Respondents, in. respOnse, disputed interfering with anybody's rights but maintained that the area they occupy is unsurveyed as the referred to survey was revoked. In dismissing the application the trial court appreciated the existence and magnitude of the controversy. In very certain terms, among others, it found, "At this stage we are not sure who is correct. We are not sure that the survey was cancelled. We are not sure whether the Right of occupancy was cancelled. Now from the look of things I find it unsafe to grant temporary injunction as the history of the premises is essentially a squatter area. Therefore.. I dismiss hot.h chamber summons with costs". From the above finding the trial court should have proceeded to grant the prayers by the applicant. Guiding principles for grantin.g of' a temporary injunction, were clearly stated in the famous case on this matter of Attilin v Mhowe (1969) MCD No. 284 as follows - "Tt is aenerally agreed that. there are three conditions which must he satisfied before such an injiict.ion can he issued..

namely (I) there must he a serious question to he tried on the facts alleged and a probability that the plaintiff will he entitled to the relief prayed, (ii.) that the courts' interference is necessary to protect. the plaintiff from the kind of injury which may he irreparable before his legal right is established and (iii) that on the balance there will he greater hardship and mischief suffered by the plaintiff from the withholdin.g of the injuction than will he suffered by the defendant from granting it". 2 In the case eat hand thereisa realcontroversy whether.:the area is suriveye4 :and if so whether the Survey is .in. existence or was revoked;'whether• the is a public road.Not only that, for,, there 'is.yet another contention, that is.. whether the Rspondents have or are blocking even the existing access'road which enables Appellant extand ingress into his premises. As regards conditions (ii) and (iii), facts show that indeed the Resoondents, though disputing the same, are blocking the way and are threatening to carry out contruction on the said disputed land under a disguise that it is a squarter area. Evidence on this kind of situation is provided by the Respondents themselves, for, in Ann. D5 to their written statement of defence, the City commission personnel who visited the scene of controversy, amon.g others reported as under, "Pia ilidhihirika njia ya asili

in.ayotumika k.uelekea katika nyumha ambazo ni pamoja na ya ndugu Ndalahwa imewekwa magogo kutoruhusu gari kuweza kupita tena, jambo arnhalo ili.ashiria Ndugu Ndalahwa kupeleka malalamiko". Also, in their counter-affidavit filed agai.nst the Plaintiff's affidavits which accompanied the chamber summons they stated, U .....since survey and plan was withdrawn there is no site plan and therefore that erecting on their local land and not hinded with Township building rules" (being laymen language inelegancy should he ignored). Thus there is ample evidence that notwithstanding the existence of the controversy the Respondents are acting as if it has already been decided in their favour, and not only that but even going into extremes like blocking the common access, to other quarters! Even under squartter occupancy right of easement 3 , C.) is unqualified, and noone.c•an.block or closea commonly used access road or path unless analternàtiVe is provided. Allowing this would indeed unleas.h :unremedable consequences for it amounts to throwing Appellantout ofhis premises, for, héánriót be expected to drop therein from the skies. Again,from their own affidavits the RespOndents have declared their intention to carry out construction.s whose consequences are the same as blocking the access road with logs or planting "michonaoma" thereonas alleged. All this point to the obvious that the

Appellant will suffer more if injuction is refused than the Respondents would if granted. I am satisfied that had the trial court properly directd itself on the legal principles concerned; and analysed the factual situation at hand it would not have dismissed the appi.i.cat ion. For the clea.r reasons discussed above the appeal succeeds. The trial court's finding is reversed: temporary injunction against the Respondents is granted with costs. For the avoidance of bias from both parties trial of the case to proceed before another Magistrate. (rd. B. Kalegeya)

JUDGE 4