MISC

rTHE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC.LAND APPLICATION NO. 12731 OF 2024 CASE REFERENCE NO. 202405301000012731 (Arising from Land Case No. 11282 of 2024) TANZANIA POSTS CORPORATION.............................. 1st APPLICANT ATTORNEY GENERAL..................................................... 2nd APPLICANT VERSUS BIBUDOBE COMPANY LIMITED...................... ........ 1st RESPONDENT ALFA ESTATE LIMITED............................................... 2nd RESPONDENT RULING 12/12/2024&22/01/2025 GWAE, J This is an application for temporary injunction made under Order XXXVIII Rule 1&. and Section 68 (e) and Section 95 of the Civil Procedure Code, Cap 33, Revised Edition, 2019. The applicants herein are seeking the following orders:- i a. That, an injunction order restraining the respondents or their agents or workmen, successor or any other working under their instruction from interfering with the property under worship of the Application by way of trespassing or disposing the land in any way, for Plot No. 73 situated at Guinea Road, Oysterbay, Kinondoni, Dar es salaam City with Certificate of Titles No. 186035/10 (suit property) respectively pending the determination of the main suit. b. Costs of this application be borne by the respondents c. Any other Orders (s) the court may deem fit to grant. The application was supported by a joint affidavit sworn by Erick Maximilian, the Principal Officer of the 1st applicant. The affidavit is to effect that the first applicant is the owner of the suit land, which she is leasing to interested persons namely; Elivis Peter Kilango vide lease agreement from 1st January 2024 to 2026 and Hon. Hama M. Masauni vide Lease Agreement dated 21st August 2023. It is also stated that the respondents would have trespassed into the suit property if the security officers (police officers) did not prevent them from trespassing. On the other hand, the first respondent herein sturdily opposed the application through her counter affidavit sworn by one Dismas Raphael Malimi. Essentially, the first respondent's contention is to the effect that, the 2 suit property is her property (Plot No. 73 and 47 No. 47 situated at Guinea and Mkadini area respectively, which she purchased it through court order and that the applicants' act of filing the main case and this application is an abuse of court process since their former case (Land Case No. 346 of 2014) was withdrawn without leave to refile. In his reply to the 1st respondent's counter affidavit, the first applicant stated that, she is the owner of both plots aforementioned with certificate of titles No. 186035/10 and Plot No. 186037/30. He further stated that, the alleged attachment and sale, if any, were maliciously and dubiously done by the first respondent's shareholders. Admittedly, the applicants stated that, the respondents stopped to trespass that is why they found not need of proceeding with the former land case. The hearing of the application proceeded orally. Mr. Gervas Ayoub Sanga, learned state attorney and Mr. Mutakyamirwa Philemon, learned advocate appeared for both applicants and first respondent respectively. Nonetheless, the second respondent neither filed her counter affidavit to oppose the application nor did she enter appearance despite the fact that, she was served 3 Mr. Ayoub argued for the application by stating that, there are legal conditions for grant of an application for temporary injunction notably; existence of a prima facie case, irreparable loss and balance of convenience, have been met. He buttressed his submission by citing the case of Atilio vs. Mboya (1969) HCD. 284) approved in Sobai Asanja Limited vs. I & M Bank (T) Limited and two others, Misc. Civil Application 468 of 2023 unreported-HC) It is was his submission that, if this application is refused the main case will be rendered nugatory and that, the applicants are not sure if the respondents will be in a position to compensate the applicant and since the applicants are in occupation as pleaded and admitted by the first respondent through her counter affidavit, the balance of convenience should be determined in their favour. In his reply submission, Mr. Mutakyamirwa stated that, there is no proof as to the sale since there is no proof to that effect and that affidavits of the tenants alleged in current occupation. Thus, according to the first respondent's advocate the pleaded facts remain unsubstantiated or mere assumptions, or speculations, gestures, which cannot be relied by the Court. He urged this court to make refer to the case of David Joseph vs. Afscan 4 Group Tanzania Limited, Civil Appeal No. 200 of 2016 at page 13 (unreported-CAT) and also Breweries Limited vs. Kibo and another (1999) EA 341. Mr. Mutakyamirwa further argued that, since the applicants are mentioning other persons who are not parties to this case, it was therefore apposite to have affidavits of such other persons. In Sabena Techniques Dar Limited vs. Marco J. Luhunzu, Civil Application 451/18/2020 (unreported), where the Court of Appeal at page 11 of its decision, stated that an affidavit which mentions another is hearsay unless such other person swears an affidavit. It was further the submission in opposition of the application by the counsel for the first respondent that, the principles enunciated in Mbowe's case (supra) have not been established by the applicants to justify the court to grant the sought reliefs. Rejoining to the submission by Mr. Mutakyamirwa, the learned state attorney reiterated his submission in chief and added that, there is no speculations found in their affidavit as what is pleaded is from former case (Land Application No. 686 of 2023) that was before this court. He urged this Court to take judicial notice. He added that, there was no need to have affidavits of the persons named as they have been introduced as tenants. 5 Hence, it is not information given by the tenants rather the issue which is based on lease agreements. He therefore stated though the case of Kibo (supra) is good precedent but not applicable to matter under consideration. He thus prayed this application be granted. Having outlined the parties' affidavits for and against the application oral submissions by the parties' advocates, I am of the view, that, the main issue is whether the conditions for grant of injunctive order pending hearing and determination of the main case filed before the court (Land Case No. 11283) have been met. An injunction order is a court order requiring a person or his agent to do or cease doing a specific action, which is undesirable to the applicant. There are three (3) types of injunctions, these are; permanent injunctions, temporary restraining orders and preliminary injunctions. In our present case, I am asked to issue an order granting temporary injunction pending hearing and determination of the applicants' main case. Both advocates referred me to the most famous case of Atilio vs. Mbowe (1969) HCD 284, which established three principles governing an application for temporary injunction; these are; 6 1. Demonstration of the existence of a prima facie case, 2. The likelihood of suffering an irreparable loss and 3. That the balance of convenience should tilt in the applicant's favour. See also a judicial decision in Tanzania Breweries Ltd. vs. Kibo Breweries Ltd and another (1999) EA 341) Regarding the first condition set herein, after examining the parties' oral submissions, affidavits and facts pleaded in the plaint and the first respondent's written statement of defence, I am of the view that, at least there is triable issue between the parties, on whether the defendants are bonafide purchasers of the suit properties in the Public Auction conducted on 16th September 2014. I am firmly holding such stance because of the attachments to the plaint, right of occupancy and lease agreements as well as attachments to WSD. More so, at this juncture, it suffices to partially ascertain if there is a prima facie case, the duty which I have discharged by determining the matter in favour of the Applicants. Coming to the second principle on the irreparable loss. The words "irreparable" loss denote that, anticipated loss, if left to occur, which will be irreversible or irremediable or irretrievable or irrecoverable or irrevocable, irredeemable or irreplaceable loss. This statutory duty of the Court is to 7 protect the one who may suffer irremediable loss if an injunction is not granted in the book of Sohoni's Law of Injunction, Second Edition, 2003, at page 93, it was stated that:- "As the injunction is granted during the pendency of the suit, the court will interfere to protect the plaintiff from injuries which are irreparable. The expression "irreparable injury" means that, it must be material on which cannot be adequately compensated for in damages. The injury need not be actual but may be apprehended." Facing the similar situation, this this Court (Kalegeya, J as he then was) stated in Suryakant D. Ramji Savings and Finance Limited and others (2002) TLR at page 122 that; .. the existence of more sufferings by the plaintiff if the injunction is refused than would be the case with the defendants ifgranted, between the two, the plaintiff stands to lose more if this injunction is refused." Joining hands with the holding of his Lordship Kalegeya JA (rtd), I am thus to examine if the applicants will suffer more irreparable loss in the event the injunctive order sought is rejected. The first applicant is the Public Corporation owned by the Government of the United Republic of Tanzania. 8 I have considered the fact that, the first applicant has entered into lease agreements and the fact that, there are tenants that are currently dwelling in the disputed houses, the first applicant, in my considered opinion, is likely to suffer more irreparable loss as pleaded at paragraph 5 of the applicants' affidavit and paragraph 8 of the counter affidavit where the first respondent does not dispute such fact. Similarly, I am of the firm view that, the applicants are in position to compensate the respondents in case, the main case is not determined in their favour as opposed to the respondents who have even not appeared to defend the case (second respondent). As to the third element on the balance of convenience, considering the fact that, the first applicant's tenants are currently in occupation and that certificate of title is still bearing the name of the first applicant, I therefore find that, it is more convenient if this application is granted than if it is refused. In the eventuality, I find the applicants have successfully met the conditions for granting an order for temporary injunction as laid down in the case of Atilio vs. Mbowe (Supra). Therefore, the respondents herein and any other person acting on their behalf are restrained from trespassing the 9 suit plots (Plot No. 73 situated at Guinea Road and Plot No. 47 situated at Mkadinini Road Oysterbay area in Dar es salaam City) pending hearing and determination of the applicants' main case in Land Case No. 11282 of 2024. Costs of this application shall abide the outcome of the main case It is so ordered DATED at DAR ES SALAAM this 22nd day of January 2025. JUDGE io