the registered board of trustees of direct aid society versus charity matarimo 4 others 2023 tzhclandd 17082 26 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.474 OF 2023 THE REGISTERED BOARD OF TRUSTEES OF DIRECT AID SOCIETY APPLICANT VERSUS CHARITY MATARIMO RESPONDENT ANTHONY MRISHO NGAI 2^^^ RESPONDENT KINONDONI MUNICIPAL COUNCIL 3*^ RESPONDENT COMMISSIONER FOR LANDS 4^" RESPONDENT ATTORNEY GENERAL. 5™ RESPONDENT RULING Date ofLast Order: 07.10.2023 Date ofRuling:26.10.2023 T. N. MWENEGOHA^J. This Application was preferred under Section 2(3) of the Judicature and Application of Laws Act, Cap 358, R. E. 2019 and Sections 68(e)and 95 of the Civil Procedure Code,Cap 33 R. E. 2019. The applicant is seeking for Temporary Injunction, to restrain the respondents and any other persons working on their behalf, from evicting the applicant, developing, occupying, disposing and/or demolishing the suit property, Plot No. 388, Block C, Tegeta Area, Kinondoni, within District in Dar es Salaam Region pending the expiry of 90 days' notice of intention to sue the government. The Application was supported by the affidavit of Mr. Mbwana Ahmed Urari, a member of the applicant's board of Trustees. The same was heard through written submissions and exparte against the 1®*^ respondent. Advocate Juma Nassoro, appeared for the applicant, while the- 2"^^ respondent was represented by Advocate Eric Mark Shayo. Mr. Francis Rogers, Principal State Attorney, appeared for the 3^^ to 5^^ respondents. Submitting in support of the Application Mr. Juma Nassoro, relied on the case of Atilio vs. Mbowe (1969) HCD 284, in which the three conditions precedent to the grant of Temporary Injunction were outlined as highlighted below:- The first condition is the existence of a serious question to be tried by the Court of Law. He insisted that, there is a dispute of ownership of the suit land, between the applicant and the respondent. This dispute constitutes an arguabie case, or a primafacie case, to be tried by this Court, as the applicant has been in occupation of the land in question for over 12 years without any disturbance. To him, the respondents are trespassers and that is the centre of their intended case. Secondly is that the applicant has developed the land in dispute, by fencing it and constructing permanent structures, occupied by different persons. Further, that, the applicant is in possession of a Letter of Offer over that particular land. If the actions of the respondent are not stopped, the applicant above named will suffer irreparable loss. Her property will be taken from her. Hence, the Court's interference is necessary to protect her interests over the suit land. Thirdly, on the balance of convenience, It was argued by counsel for applicant that, the applicant stands to suffer greater hardships If at the Application is denied, than the respondents. In case the same Is allowed. In reply Mr. Shayo,for the 2"^ respondent, maintained that, the applicant has failed to establish and meet the laid principles for the court to grant Temporary Injunction, as enshrined In the Atilio versus Mbowe, (supra). That, the submissions in chief by the applicant's counsel in this matter are frivolous and Ill-founded. There Is nothing suggesting that, the land In question Is going to be demolished. The applicant did not even attach the notice of demolition If any, served to her. She just attached a notice of intention to sue the government, which has already expired since on the 26^ September, 2023. That, If the applicant had any Intention of filling a suit, she could have done so by now. She did not do so, because, there Is no harm or inconveniences whatsoever, that has occurred or Is likely to occur to her. On the other hand, Mr. Francis Rogers, for the 3"^ to 5^^ respondents, joined hand with the counsel for the 2"^ respondent. He insisted that, this Court should not act on bare words or statements from the bar when considering to allow or deny the Application at hand. Allowing this Application on the basis of the submissions by the applicant's counsel, means paralyzing all efforts of resolving the conflict associated with the allocation of the land In question. I have considered the submissions of both parties through their respective counsels. Also, I have gone through the affidavit and counter affidavits as adopted by the parties through their submissions. The Issue of determination is whether the Application has merits or not. As I went through the documents given to Court, it became evident that the current Application is in the nature of Mareva Injunction. The applicant needs to restrain the respondents and any person working under their instructions, from doing what they intend to do over the property described above, pending the expiry of 90 days' Statutory Notice of intention to sue the government, see Mareva Companies Naviera SA versus International Bulkcarriers SA,(1980)1 All ER 213. That is to say, for this Application to be granted, there must be a pending 90 days' Notice of intention to sue the government. In the Application at hand, I have the Notice, appended as annexure "C", served and received by the government on the 2T^ June, 2023. Unfortunately, as claimed by the Mr. Shayo, counsel for the 2"*^ respondent, the Notice in question has already expired on the 26^^ September, 2023. Therefore, this Application has already been overtaken by event, since the date of the expiry of the Notice. This means that, the applicant has a green light to lodge her intended suit and apply for Injunction accordingly, as the Notice has matured. For this reason, the current Application cannot stand as it lacks merit. In the end, the Application is dismissed with no order as to costs. It is ordered. N rOHA JUDGE N 'A\ H fM 26/10/2023 s, V« VA V