Mtatiro v Shelter Construction Limited and Another (Civil Case No. 195 of 1996) [1999] TZHC 521 (28 December 1999)

206 TANZANIA LAW REPORTS[2001jT.L.R. A Counter-claim as it is requires defence which should be traversed and denied specifically, however in this case the appellant on cross- examination by the respondents advocate admitted to being in debited to the tunc of “ four million three hundred and thirty seven thousand, B two hundred and thirty nine shillings TZS. 4 379 239 which includes the amount loaned with the corresponding interest that generates within the period of the loan. In his words, the appellant before the Magistrate Court said “ On the question of me being owed TZS. 4 c 3/9 239 I am not disputing it ” . Therefore this ground also fails. Lastly as all the grounds argued have failed judgement is hereby entered against appellants and the appeal hereby dismissed D --------------------------------------------------- AFRED MTATIRO v. SHELTER CONSTRUCTION LIMITED, THE REGISTRAR OF TITLES AND TAALIB E MBOWE t/a AMIN AND COMPANY HIGH COURT OF TANZANIA AT DARES SALAAM F (Kalegeya, J.) CIVIL CASE No. 195 OF 1996 G Civil Practice and Procedure - Status Quo — Order to maintain status quo - Whether the order has more force in terms of duration than would a normal temporary injunction - Order XXXVII, rule 3 of the Civil Procedure Act 1966. H The applicant/plaintiff appeared before this court praying for an order committing the third respondent/defendant to prison for contempt of court. The contempt is alleged to have arisen because of the respondent/defendant ’ s violation of the Orders of this j court dated 16 August 1996 and 23 May 1997 which ordered that the status quo be

AFREDMTATIRO v. SHELTER CONSTRUCTION LIMITED, THE REGISTRAR OF Ti l LES AND TAALIB MBOWE t/a AMIN AND COMPANY 207 maintained in respect of the property on plot number 8 Block 47 Kijitonyama, in A Kinondoni District. The application for committal was filed on 13 October 1998. Held: (i) Under Order XXXVII, rule 3 of the Civil Procedure Act 1966 as amended by G.N. 508 of 1991, a temporary injunction lasts for 6 months unless renewed, which T> period however should not exceed 12 months in aggregate. (ii) The Order given on 21 May 1997 and which was not renewed lapsed six months later i.e. 21 November 1997, and therefore, there is no breach which has been established entitling this court to condemn the respondent for contempt of court. Application dismissed Statutory provision referred to: (1) Civil Procedure Act 1966, Order XXXVII, rule 3 Mr Magesa, for Applicant/Plaintiff Mr Ukongwa, for third Respondent/Defendant RULING e (Dated 28 December 1999) Kalegeya, J.: The applicant/plaintiff is before this court praying f for an order committing third respondent/defendant to prison for contempt of court. What is the background to this? On 23 July 1996 the applicant filed a chamber summons with the following prayers: G

1. That this Honourable court be pleased to issue a temporary injunction restraining: (a) The first respondent from transferring property on plot number H 8 Block 17, Kijitonyama, Title Number 186289/5 to the third respondent, pending the determination of this suit. (b) The second respondent from registering the aforesaid transfer pending the determination of this suit. I

208 TANZANIA LAW REPORTS[2001JT.L.R. A 2. Costs of this application be paid to the applicant. When the application came up for hearing on 16 August 1996 Mr Ukongwa for third defendant applied for adjournment because he had just been instructed. What transpired thereafter can best be put B by reproducing the proceedings as under; “ Magesa: That being the case, let status quo be maintained pending hearing of this application. C Ukongwa: I have no objection Order: The respondents to file their counter affidavit not later than by 23 August 1996. Reply (if any) by 30 August 1996. Hearing on 12 September 1996. D Meanwhile the status quo to be maintained. Sgd by KAJI, JUDGE E 16 August 1996 ” After numerous adjournments, on 21 May 1997, the following transpired. Again I will quote at length the proceedings because they form the basis of the controversy at hand. “ Ukongwa: I am not aware that one of my clients is breaching the Order of this court. I will look for him and stop him from doing so. Since by virtue of the order for the status quo to be maintained G has settled the application for a temporary injunction thereby making my Preliminary Objection impotent I pray for time to file my Written Statement of Defence within 2 weeks. Magesa: Since my learned brother has undertaken to stop his client H from breaching the order for the status quo to be maintained the date for hearing the main suit can be left undisturbed. I have no objection for my learned brother to file his Written Statement of Defence provided I am allowed to reply if necessary. 1

AFRED MTATIRO v. SHELTER CONSTRUCTION LIMITED, THE REGISTRAR OF TITLES AND TAALIB MBOWE La AMIN AND COMPANY 209 Order: The order for the status quo to be maintained is still in force. A Mr Ukongwa to see to it that Order is not breached by his client as he has undertaken on the Bar. The defendants to file their Written Statement of Defence within 14 days from today. The plaintiff ’ s reply (i) (if any) to be filed before 4 b July 1997. Hearing on 4 July 1997 as already fixed. The second defendant has already been served on 7 April 97 as can be seen on the notice. Sgd by KAJI, C JUDGE 21 May 1997 ” Having passed through the hands of two different judges, in November D 1998, this matter was re-assigned to me. By then however, the plaintiff had filed a chamber application leading to the present ruling. He filed a chamber summons on 13 October 1998, praying for orders: That the third respondent be summoned to show cause why he should E not be committed as a civil prisoner for violating the orders of this court dated 16 August 1996, and 23 May 1997 which ordered that the status quo be maintained. F In support thereof is the plaintiff ’ s affidavit. Again, for clarity, I will reproduce the relevant paragraphs. 12. That at the time I lodged the caveat to restrain any transfer as per paragraph 10 hereinabove, the only development on the suit land was a small house used by the first respondent as office premises. 13. That later in 1996, when I lodged the main suit in this matter, I also applied for a temporary order of injunction to restrain the defendants from effecting any transfer from the first defendant to the third h respondent or carrying on any development on the suit land. 14. That on 16 August 1996, this Honourable court ordered that the status quo be maintained, pending the hearing the application for I

210 TANZAN [A LAW REPORTS [2001]T.L.R. A temporary injunction. A copy of the said order is annexed hereto and marked “ E ” . It forms part of this affidavit. 15. That notwithstanding, the Order to maintain status quo as per paragraph 14 hereinabove, the third defendant commenced and continued with g construction of a multi-storey structure on the suit land. This led me to apply for another order of injunction to restrain the third respondent from effecting any development on the suit land until finalisation of this matter. The application was granted on 23 May 1997. C 16. That notwithstanding, the existence of the two orders the third defendant has persistently continued with the construction on the suit land in violation of the said orders and at the moment, the construction has reached the level of two floors. D 17. That by failing to observe the orders of this court and by continuing with the development he has embarked on the suit land, the third defendant is acting in contempt of this Honourable court. E On the other hand, the third defendant filed a counter affidavit stating that although there is no injunction restraining him from carrying on with construction, he had decided to abide by the order of maintaining a status quo until the plaintiff encouraged him to proceed with finishing F touches as they embarked upon discussions for settlement out of court which attempts however proved fruitless. Parties effected their arguments by way of written submissions. The applicant/plaintiff adopting what is contained in his affidavit insisted that the third defendant ’ s counsel having undertaken to maintain it, the status quo was to last till finalisation of the case; that: “ status quo is as good as injunction order ” and disputed having given g any encouragement to third defendant. The respondent/third defendant also adopted the counter affidavit adding that the application is misconceived because the order dated 16 August 1996 was issued pending the hearing of the chamber application I for temporary injunction, which application has not been heard; that

AFRED MTATIRO v. SHELTER CONSTRUCTION LIMITED, THE REGISTRAR OF TITLES AND TAALIB MBOWE uaAMIN AND COMPANY the order issued in May is akin to a temporary injunction and that as A 6 months having elapsed without renewal it is now stale; that there is no order dated 23 May 1997 which restrained respondent from effecting developments on the plots and that before the suit was filed, the main construction had already been made save finishing b touches which were made with applicant ’ s approval. Now to the merits. I have quoted the proceedings and the affidavit at length for clarity of my findings which are as follows: c First, I will start by saying that the defendant/respondent rightly argued that the applicant should not have referred, in his application, to the Order given on 16 August 1996. Indeed, the proceedings clearly show that that order was made pending the hearing of the chamber application for temporary injunction. The defendant ’ s counsel being D not ready to proceed and having prayed for more time to prepare himself the applicant ’ s counsel successfully applied for an order to have a status quo maintained. Obviously, he was referring to maintaining the status quo till such a time, as shall be fixed by the court, and E when Ukongwa would have been ready to have the application heard. This order got extinguished on 21 May 1999. Although on this day the court ordered the status quo to go on, in actual fact it was giving a new order. The relevant order therefore is that of 21 May 1999. f Secondly, although both parties refer to an order dated 23 May 1997, they are both wrong. They are not supported by the record. The order they are referring to was made on 21 May 1997 while the next date appearing on record is 3 July 1997 when Kaji, J. who was G handling the matter recorded that he was returning the case file to the Judge in-charge for re-assignment as he was moving on transfer. Thirdly, the applicant ’ s affidavit particularly paragraph 13 last seven words; 15 last sentence, contains lies. According to the court record, after 21 May 1997 there is no other order regarding any of the party ’ s status quo. Where did he get an order dated 23 May 1997? Further to that the applicant has never prayed for an order restraining respondents from going on with construction or developments on 1

212 TANZANIA LAW REPORTS[2001]T.L.R. A the disputed land. The prayers in his chamber summons filed on 23 July 1996 already quoted are very clear. Fourthly, although in his chamber summons for an application for temporary injunction the applicant had made prayers limited to B just transferring the property on plot 8, Block 47, Kijitonyama, when the respondent undertook to maintain the status quo which was duly recorded as a court order, the court having believed that it was an honest undertaking any other activity which could change the existing c state of affairs between the parties but related to the disputed property become entangled. On those premises, any construction or development thereon would constitute contempt for court, clear and simple, as it negates the order. D The question however is, whether that order of maintaining the status quo has more force in terms of duration than would a normal temporary injunction. Under Order XXXVII, rule 3 Criminal Procedure Code as amended by G.N. 508 of 1991 a temporary injunction lasts E for 6 months unless renewed which period however should not exceed 12 months in aggregate. The purpose behind the introduction of this new condition was to curb the otherwise prevalent shrewdness of parties who upon securing a temporary injunction, never bother to F prosecute their cases if not creating a whole lot of excuses to make sure that the matter is not finalized or takes unduly a long time. This would be so, in most cases, because they would have already secured what they want or they would be aware that the scales of G justice lean against them. Now, if temporary injunction is explicitly given a limited life span, can an order for maintaining a status quo, which order is generally wider in ambit, have unlimited duration? In my considered view the answer is in the negative. The conditions H provided under Order XXXVII, rule 3 Criminal Procedure Code should rule as well on such order. I thus agree with the respondent that the order given on 21 May 1997 and which was not renewed lapsed six months later, i.e. 21 November 1997, hence of no effect thereafter. I

JOSEPH MNIGA v. ABASS FADHILABASS AND HASSAN KHATIB PANDU And yet still, even if it was still in force, on the facts of this a matter and the uncertainty and unreliability of the applicant ’ s affidavit, which, as I have already indicated, contains some lies, I am not convinced that the respondent breached the Order. His explanation that by the time the Order was given the main construction had already been b made, and that the finishing touches were made with applicant ’ s approval stand unchallenged. He who alleges must prove. The applicant should have convinced us as to when the alleged violation took place. The Order was given on 21 May 1997. The present application was filed c on 13 October 1998. The affidavit alleges that respondent has constructed a two storey building after the order. If that is the case where was the applicant? Could he simply keep silent if indeed respondent was effecting such developments at the alleged speed? What then activated him when he subsequently decided to file the said application? I am not convinced by the applicant ’ s allegations as they are not supported either by direct or even circumstantial evidence. There is no breach which has been established entitling this court to condemn the respondent for Contempt of court. The application is dismissed with costs E JOSEPH MNIGA v. ABASS FADHIL ABASS AND f HASSAN KHATIB PANDU HIGH COURT OF ZANZIBAR ATVUGA g (Garba Tumaka, DC. J.) CIVIL APPEAL No. 34 OF 1999 H (From the Judgment and Decree of the Regional Magistrate ’ s Court at Vuga, dated July 1999, in Civil Case No. 18 of 1999) Civil Practice and Procedure - Appeal - Limitation of time to appeal - Computation of time - Time spent to obtain a copy of the decree or order