Hyasinta Elias Malisa vs The Ministry of Land, Housing & Human Settlements Development & Othersusong (Civil Application No. 614/17 of 2021) [2023] TZCA 17752 (11 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NPIKA, J.A., KITUSI. 3.A., And MASHAKA. 3.A.1 ! CIVIL APPLICATION NO. 614/17 OF 2021 HYASINTA ELIAS MALISA (As Administratrix of the Estate of the Late Dr. ELIAS MALISA)...............................APPLICANT VERSUS THE MINISTRY OF LANDS, HOUSING AND HUMAN SETTLEMENTS DEVELOPMENT.............................. . FIRST RESPONDENT THE COMMISSIONER FOR LANDS ..... . .......... ........ SECOND RESPONDENT THE ATTORNEY GENERAL............................... . ......... THIRD RESPONDENT (Application from the Ruling and Order of the High Court of Tanzania, Land Division at Dar es Salaam) (Opiyo, 3.) dated the 6th day of July, 2021 in Land Case No. 129 of 2019 RULING OF THE COURT 28s h March & 11th October, 2023 MASHAKA. J.A.: The applicant, Hyasinta Elias Malisa acting as the administratrix of the estate of the late Dr. Elias Malisa, seeks in terms of rule 4 (2) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (henceforth the Rules) a temporary injunction restraining the Ministry of Lands, Housing and Human Settlements Development and the Commissioner for Lands, the first and second respondents respectively, from: "executing their intention to grant rights o f occupancy over or from tampering in any l

manner whatsoever with P lo ts Nos. P85, P93, P 9 6 and P100, Ununio, Kinondoni, Dar es Salaam pending the determ ination o f the intended appeal between the parties." In support of the motion, the applicant swore an affidavit. Conversely, Ms. Hellen Philip Njau, a Principal Officer of the first and second respondents, lodged an affidavit in reply opposing the application. The Attorney General, impleaded as the third respondent in compliance with the law, did not file any affidavit in reply. Briefly, the essence of this matter is that the applicant instituted Land Case No. 129 of 2019 in the High Court of Tanzania, Land Division (henceforth the High Court) against the respondents claiming ownership of landed property now described as Plots Nos. P85, P93, P96 and P100 situate at Ununio, Kinondoni, Dar es Salaam. The respondents raised a preliminary objection to the effect that the claim, lodged in 2019, was time-barred on the ground that while the applicant claimed to have acquired title to that property in 1981 the said property was since 1988 allocated to and occupied by Goodfreid Kajana Makaya. The High Court (Opiyo, J.) sustained the objection and dismissed the claim vide a ruling delivered on 6th July, 2021. 2

Desirous of challenging the dismissal before this Court, the applicant duly lodged a notice of appeal on 27th July, 2021. Pending the hearing and determination of the intended appeal, the applicant now seeks an order of temporary injunction to restrain the first and second respondents from dealing with or disposing of the property in dispute. At our prompting at the hearing of this matter, learned counsel for the parties addressed us on whether the matter was proper and tenable. For the applicant, Mr. Norbert Mlwale, learned counsel, advanced three key points. First, that since there is no specific provision in the Rules catering for an application of this nature, the matter was rightly anchored on rule 4 (2) (a) and (b) of the Rules, which apply when dealing with any matter for which no provision is made by the Rules or any other written law as well as for the purpose of better meeting the ends of justice. In support of this submission, he cited Stephen Mafimbo Madwary v. Udugu Hamidu Mgeni & Another, Civil Application No. 71 of 2011 (unreported). Secondly, he contended that the impugned order of dismissal of the applicant's suit was non executable, rendering an application for stay of execution which would 3

otherwise have been an option, implausible. Thirdly, the learned counsel argued that, even if stay application were feasible, the applicant could not seek such an order because the respondents had not moved to execute the High Court's order. He further contended that in terms of rule 11 (4) of the Rules an application for a stay order cannot be lodged until the execution process has started whereupon it must be filed within fourteen days thereafter. Mr. Gerald Njoka, learned Senior State Attorney, who teamed up with Mr. Urso Luoga, learned State Attorney, to represent the respondents, strongly opposed the application. He urged the Court to find the matter misconceived because the applicant should have sought a stay of execution in compliance with the law. He sought to distinguish Stephen Mafimbo Madwary (supra) on the ground that, besides the said matter having involved an order of injunction pending hearing and determination of an application for revision, the Court ultimately declined to issue the order sought but it, instead, issued an order of stay of execution of the High Court's decision. To do so, the Court took inspiration from the letter and spirit of rule 11 of the Rules. 4

To begin with, we agree with Mr. Mlwale that, as we held in Stephen Mafimbo Madwary (supra), the enabling provisions cited for this matter apply fittingly when dealing with any matter for which no specific provision is made by the Rules or any other written law as well as for the purpose of better meeting the ends of justice. These provisions constitute what can be referred to as the inherent powers of the Court. Certainly, the Rules do not provide for a particular provision for granting the order sought by the applicant. However, while it was suggested in National Housing Corporation v. Hamisi Luswaga & 3 Others, Civil Application No. 82 of 2008 (unreported) that the Court could apply such powers to injunct a party from executing a decree of a subordinate court or inferior tribunal, in the circumstances of this matter we are guided by Gazelle Tracker Limited v. Tanzania Petroleum Development Corporation, Civil Application No. 15 of 2006 (unreported) for its holding that applications for injunctive reliefs are more appropriately suited for the court exercising original jurisdiction. In that case, the applicant sought an order of temporary injunction to restrain the respondent from carrying out an intended 5

eviction of the applicant from the suit property. A single judge of the Court dismissed the application on the following reasoning: "It is common knowledge that the C ivil Procedure Code, 1966 does not apply in this Court. In view o f the fact that no provision is made in the Court Rules,; 1979\ for injunctive reliefs, I am persuaded by Mr. KHindu's subm ission that a p p lica tio n s fo r in ju n c tiv e re lie fs su ch a s th is, are m ore a p p ro p ria te ly s u ite d fo r th e co u rt e x e rcisin g o rig in a l ju ris d ic tio n a n d n o t th e C o u rt o f A ppeal. The logic is not far to seek. As provided for under Rule 1, Order 37 o f the C ivii Procedure Code, 1966, temporary injunction may be granted where in any suit, the property in dispute in a suit is in danger o f being wasted, damaged or alienated by any party to the su it It is therefore dear that in ju n ctiv e re lie fs are, a cco rd in g to th e la w a s s e t o u t above, g e n e ra lly in vo ke d a t th e sta g e w here th e tr ia l o f a s u it is in p ro g re ss o r p e n d in g ." [Emphasis added] We recall that Mr. Mlwale argued that the applicant could not seek stay of execution because no execution process has been initiated by 6

the first and second respondents and that the impugned order of the High Court is non-executable. That may be so but by seeking injunction the applicant is in effect seeking through the back door to prevent the first and second respondents from enjoying the fruits of the order in their favour. In National Housing Corporation v. Peter Kassidi & 4 Others, Civil Application No. 243 of 2016 (unreported), we excerpted a passage from the learned authors V.S. Sohoni and S.V. Sohoni in Sohoni's Law of Injunctions, 4th Edition, Premier Publishing Company, Allahabad, India 2013, at page 738, to hammer home the imperative to protect a party in whose favour a decree or order has been passed. To illustrate the point, we extract a portion of that quotation: "'But it appears from the perusal o f the decision in S u rin d e r S in g h v. L a i S h e o ra j [A IR 1 9 7 5 M P 8 5 ], th a t sin ce a p a rty in w hose fa v o u r a d ecre e o r o rd e r h as been p a sse d h o id s h is p rim a fa cie title to th e p ro p e rty o r th e rig h t w hich w as th e su b je ct-m a tte r o f th e decree o r o rd er, very stro n g evid en ce w o u ld be n e ce ssa ry to re b u t th e 7

p re su m p tio n o f p rim a fa cie tit/e in fa v o u r o f th e decree-ho/der. ''[Emphasis added] The learned authors went on to extract the following holding from the case of Surinder Singh v. Lai Sheoraj (supra): "D ecree-ho/der sh o u ld n o t o rd in a rily be re stra in e d from e n jo yin g th e fru its o f th e d ecree o b ta in e d b y him a fte r a su cce ssfu l litig a tio n . M erely because a party chooses to file a su it challenging the decree or order on certain grounds, would not suffice to destroy the presum ption in his favour and a very heavy burden would He on the applicant to produce strong and cogent prim a facie evidence to satisfy the Court that the grounds on which the decree or order is challenged are fairly strong and that there is a reasonable possibility o f the success o f such suit. ''[Emphasis added] Bearing in mind the position the Court took in Gazelle Tracker Limited (supra), we find this application plainly misconceived. That apart, the application has presented no extraordinary circumstances to move the Court to intervene to prevent the first and second respondents 8

from enjoying the fruits of the order made in their favour by the High Court following their successful litigation. In the final analysis, we dismiss the application with costs. DATED at DAR ES SALAAM this 7th day of October, 2023. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L, MASHAKA JUSTICE OF APPEAL Judgment delivered this 11th day of October, 2023 in the presence of the Mr. Urso Luoga, learned State Attorney for the Respondents, also holding brief of Mr. Norbert Mlwale, learned counsel for the Appellant, is hereby certified as a true copy of the original. i R. W. CHAUNGU ^ /£ /J DEPUTY REGISTRAR ' y COURT OF APPEAL 9