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IN THEHIGH COURTOF TANZANIA

(LAND DIVISION)

AT MOSHI

LAND CASE NO 2 OF 2010

FIONA ({T) LIMITED .APPLlCANT/PLAI NTIFF

VERSUS

-o-KYEERIRURAL CO-OPERATIVE SOCIETY LTD 1Sf RESPONDENT/DEFENDANT",: .,.;,ui';., ,...:: , -." , " .~"~ '- . -.' '-' -'" -~'" ",'

SHARI RURAL CO-OPERATIVE SOCIETY LTD 2NDRESPONDENT/DEFENDANT

USWAA/MAMBA RUR. CO-OP. SOCIETY LTD 3RDRESPONDENT/DEFENDANT

RULING

S.E.MUGASHA, J

In the year 1999, the applicant/plaintiff and respondents/defendants

entered into a lease agreement with respondents for three terms of

, " .twenty years each on land measuring 933.1 acres in Silverdale and.:-"''''':?~'''C'''~-~' , " ',"', ", " , '" -'-"~ .' , '- . --.' -',' c ..-, "" , , "-' '..," ,- -.,,', ','"

Mbono Farms.

Qn 5th February, 2010, the respondents vide Mr. Maruma learned

, Counsel, issued to the applicant a notice for termination of lease

agreement. The notice was precipitated by the alleged breach of

the lease agreement. In the notice, the respondents demanded

inter alia, repossession of the leased land with cooperation of the

applicant or else, forcible eviction within one month from the date of

notice.""",;,;'i><""".c~'- , ", -.,,'. ""

I ~~.!...v:~i~.iS..~h~t. m~~.~ th~ ap?I.~c?nt to come t~ this court seek for- -'- -~'"V 0 followingorders namely:

,. Thishonourable court be pleased to issue temporary orders ofinjunction pending the hearing and final disposal of the landsuit filed into this honourable court.

2. Costs of this application.

3. Any other relief the court deems fit to grant.

--=-The application is supported by the affidavit of Elia Kimaro, the

Principal Officer of the applicant/plaintiff. The applicant was

",:,",~;,,;~,!*";',,:Jepresented. by..Mr. Kibatalo. .Iearned Counsel.and the respondent5-. >"- -.,,;,','

were represented by Mr.Maruma learned Counsel.

During the hearing of the application, Mr Maruma counsel for the

respondents raised preliminary objections on the following points:

(1) That, the supplementary affidavit is not properly before thecourt due to lack of prior requisite leave of court;

That, in absence of a resolution of the Board of DirectorsFiona Company authorising Mr. Kimaro to instituteproceedings in court, the application is not competent

(2)

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- ' , '. "'On 25th March, 2010, the applicant filed a supplementary affidavitdeponed by Elia Kimaro. The affidavit was filed without requisite

, leave of the court. As such, the applicant's counsel was notpermitted to refer to the supplementary affidavit which was filed incontravention of Order VIIIRule 13 provides:

No pleading subsequent to the written statement of a defendant otherthan by way of defence to a set-off or counterclaim shall be presented

except by the leave of the court and upon such terms as the court thinksfit, but the court may at a pre-trial conference require a written statement

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or additional written statement from any of the parties and fixa time forpresenting the same:

A supplementary affidavit is a pleading subsequent to the"'''''''~;>i'''''~<:tDunterDffidavitwhich can-only be filed upon asking and obtaining'" ",-."".

requisite leave of the court. In the premises, supplementary affidavitof Mr. Elia Kimaro found its way to court through the back doorwhich is irregular.

Notwithstanding the court's refusal to permit the applic,ant's counsel

during the hearing of this application to refer to the supplementary

affidavit; the affidavit is stillin the case file though not properly so for

lack of requisite leave. As such, I expunge the supplementary

affidavit same from the record of this application..: "..,.,.\,;.':"""'-:.C''''''' '

'-. .""-'"''''

Pertaining to the competence of the application without a resolution

of the Board of Directors of Fiona, Mr. Kibatallah submitted that,

Fiona is a Company with registered under the Companies Act and it

can sue or be sued in its own name. Besides, according to Mr.

Kibatala, Mr.EliaKimaro the deponent of the affidavit is the Principal

Officer of the applicant Company and thence competent to lodge

proceedings on behalf of the applicant Company. In support of the

s:ontention he cited the Misc. Land Application No.22 of 2005

":'""';;'!7":'1mJweenttJiLLega! and !juman Rights Centre and The Hon' Attorney" N- .-."

General and 4 others (Unreported)where, Hon. Lugaziya, J inter alia

decided:

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f'r)

Once a company is established, it can either sue to enforce legal rights or

it can be sued and there is no evidence which requires evidence in form

of Board resolution to authorise a company to institute a legal action.

Lugaziya, J further concluded that, although the company can

"""'''i;'i.<..,,:._QPE3~aJ~.through JJ$ dir~ctor?I,,~ti!L in the eye~ ofJhe, la~, a c:;qmpany",." ,, "

stands to be a legal person quite distinct from its members and

directors.

-~In the matter under scrutiny, I fullysubscribe to what Lugaziya J said.

In the matter at hand, Fiona being a registered Company is thus a

legal person capable to sue or being sued. Fiona has come to court

to enforce legal rights pertaining to the lease agreement which does

not require them to present evidence showing that, the Board has

, , ' ' , . resolved for the matter to be brought in court. Moreover, in much as..: '"",.,:..,!*<"'''..-~'''~' . " ,,,.'. '" "'.' '..'" ..- '-", , ., ".. , .-" ."/. - ,.."'" ,"

I do agree with Mr. Maruma that, his clients never concluded a deal

with Mr. Kimaro but Fiona, there is no proof that Mr. Kimaro is not an

officer of the applicant/plaintiff company. In the premises, this

application is competent and properly before the court. As such the

objection isoverruled.

Regarding the main application, Mr. Kibatalla urged the court to

grant the temporary orders of injunction. He cited following decided

, , ' ',' ,cases including, the famous case of Attilio vs. Mbowe HCD 1969.: ""'"""'!.~'-'",C~""'- . , ','" "" ".. ".,,," " '., '... " ,.. 'on. ,," .",' ,,"'" - '''.''. "

N.284; the case of Eddu Computers vs. Tanzania Investment Bank

Commercial case No. 38 of 2008 where Hon.Kalegeya J madereference to the case of Giella vs. Cassma Brown &Co. Ltd 1973

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E.ACA.The cited case specifies conditions which should guide the

court in granting or otherwise of a temporary order of injunction such

as conditions include:

(1)

(2)

Existence of triable issues between the parties;

There should be a likelihood of a matter to be terminated inapplicant's favour;

',-"""\:-''''''':.''''''''(3,)""It shouIQ..pe e?tabli~h.~Q that, if thee inlunction~ ord~r is not., .~.,,~...;,granted the applicant willsuffer,

(4) On the balance of convenience the applicant stands tosuffer more if the application is refused.

On the question of triable issue, Mr. Kibatalah submitted that, one,

there are triable issues pertaining to the alleged breach of the lease

agreement which need to be determined in the main suit. Two, the

respondents are eager to evict the applicant who has and

continues to invest on the suit premises, and three, on the balance of

"",.,.,,,\;.!..,,,,:::£.QnY~Di~n9~,tbe_qpRlicanf.~:tqnds to suffer. irr~parably if th~ prayer. ..'.-,<"

sought is not granted.

Reiterating on existence of triable issues, Mr. Kibatalah urged the

court to grant the application in order to pave way for the trial. In

support of that argument, Mr. Kibatalah cited the case of Ramii & 5

others vs. National Housing Corporation Land Case No. 160 of 2006 in

which one of the conditions as laid in Attilio's case is that and I

quote:

"""\;'i""/Tlleremust be a serious question-to be tried on the facts allegedand a

probability that the plaintiff willbe entitled to the relief claimed. "

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>~::A-sstlch,'Mr.-Kibatala urged-the--court to grant -0 temporary order to "

rJ restrain the respondents from evicting the applicant.

On the other hand, Mr. Maruma for the respondents submitted that,

the applicant is in breach of the lease agreement for not paying rent

when due; and failing to develop coffee as agreed in the lease

agreement. Besides, it is the contention of Mr. Maruma; that, the loss

or suffering alleged by the applicant is quantifiable and

compensable in monetary terms which renders the grant of the

",~".\;,~,,:.-temp0rary- -injunction- unnecessary and.- on the -other hand- ""

necessitates termination of the occupancy of the applicant in the

lease premises.

In rejoinder, Mr Kibatalah submitted that, not every injury is

quantifiable particularly in issues of tenancy and if the court finds the

applicant to be in breach and has to be evicted; such finding

should be on the final determination of the case and not the

interlocutory order.""y,->", '-~~oO . , '," - '" .. .'-oO..,oO -- . -' -. -oO oO""- .." oO.,,""'-'-

- "As rightly submitted by Mr. Kibatala, the principles of granting a

temporary injunction were established way back in 1969 in the case, .

of Attiliovs. Mbowe (1969) HCD 284 where it was held:

liltis generally agreed that there are three conditions which must be

satisfied before such an injunction can be issued:-

(i) There must be serious question to be tried on the factsalleged, and

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(ii) A probability that the plaintiff will be entitled to the relief0 prayed;

'c" "~,,,\;'~""',"~"~ (Hi) .,-" That the Court' s interference is necessary to protect or on" ""-'-""

the balance of convenience the applicant stands tosuffer more if the application is refused.

Indeed, in Attilio's case, the first condition is reliant on condition

number two i.e. if there is a serious question to be tried, there should, ,-

also be a probability of plaintiff to be granted relief claimed.

After a careful consideration of the application, the counter affidavit

and submissions of both counsels, the point for determination is

whether this application meets conditions or principles laid down in

'!"'~''';;'I*.;c'':'Attilib tscase. ,," <. " '- ._, ' ,.." '-; "" --"" "

It is not disputed that, the lease agreement which is the basis of this

application and the main suit is a serious question to be tried or a

triable issue. That is when issues of pertaining to the alleged breach

of the lease agreement will be determined after the court receives

requisite evidence. However, it is not definite and probable that, the

applicant/plaintiff willbe entitled to reliefs claimed.

" '" ,In paragraph 14.0 of the applicant's affidavit, the applicant inter alia"', '~"":"~."'''"c~~~' , " ',"" "" " "..." " '. '" " ' ." " , ,-,N,- ...v.. ','

contends that, if what is ought in the application is not urgently

granted, the applicant/plaintiff will suffer irreparably for he will lose

all substantial investment channelled into the suit premises as well as

rent paid to the respondents. As such, according to Mr. Kibatala, the

aforesaid makes it pertinent to grant the temporary orders of

injunction to restrain the respondents from evicting the applicant.

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On the other hand, Mr. Maruma argues that, whatever loss to be

,suffered by the applicant is quantifiable and compensable in

monetary terms which necessitate the eviction of the applicant

rather than have the applicant's continued occupation on the suit

"'~h'\;'f"''':'p'remi$e$. -" .~:,' -- '-. '. '-.. ,.~ ".

The point for determination is whether on the ~ bqlance of

convenience is in favour of the applicant?.

C.K Takwani Civil Procedure fifth edition at page 233 comments on

the balance of convenience as follows:

The balance of convenience must be in favour of the applicant. In other

words, the court must be satisfied that the comparative mischief, hardship

""'~;"i.;.t~...:-(::~r.if7cgn.ve_f1i.en(;.e.,'!fhicf]is Iik~/y.tc? be cause tothe applicant by rf?fusing...v.,._-.._-

the injunction willbe greater than that which is likely to be caused to the

opposite party by granting it"

In essence Takwani is urging the court to ,exercise sound discretion

and should attempt to weigh substantial mischief or injury likely to be

caused to parties, if the injunction is refused, and compare it with

fhat which is likely to be caused by the opposite party. Lord Diplock

in American Cyanamiq Co. V Ethicon ~R 504; made a

following remarkable observation on the object of interlocutory.' ,,;-,,;,;.t"""":.~~=- . " '." --, "'..", ..' -. '''' '", ,,"',0- ..'.." ,"

injunction, he inter alia said:

"The object of the interlocutory injunction is to protect the plaintiff againstinjuryby violation of hisright for which he could not be adequately

compensated in damages recoverable in the action if the uncertaintywere resolved in his favour at the trial;but the plaintiff's need for such

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protection must be weighed against corresponding need of thedefendant to be protected against injuryresulting from his having beenprevented from exercising his own legal rights for which he could not be

adequately compensated under the plaintiff's undertaking in damages ifthe uncertainty were resolved in the defendant's favour at the trial."

In the application at hand, on the aspect of the balance of

convenience, Mr. Kibatala, apart from arguing that the applicant

, , " . has invested substantially, he fell short of availing statisticaL figures to.: "'"""'-'~""''',~'''''' . , -.,,' . ' '" " . " "..." .' .. '" " .. '.' . ,'" '--;.' ,-v, -'-,"" ..

substantiate what amounts to substantial investment in the farms.

Such data is not in the plaint, the affidavit of Elia Kimaro or Mr.

Kibatala's submissions during the hearing of the application. It

appears Mr. Kibatalah declined to avail avoided availing statistics or

figures in order not to being cautious of falling prey to Mr. Maruma's

argument pertaining to the applicant's suffering or loss being

quantifiable and compensable in monetary terms. In the

circumstances, the argument of having invested substantially is a

:"".i;'~'''''':'Tf1ereassertion Which is'not supported by any proof. Besides, even ifit.,,;.v_-....

was supported by any proof, it is stillquantifiable in monetary terms

and that includes rent paid by the applicant to the respondents.

Besides, Mr. Kibatalah did not impress the court on how does he

, weigh the applicant's need of a temporary order of injunction as

against the corresponding need of protection of the

respondents/ defendan ts.

In the premises, whatever suffering or losswhich the applicant willbe...' ""'",i:;..~ <-,,:>~.,, ", ' ,. ...,'. . " ~~... .' '. . ...' " . /" .--,," "

subjected to is stillquantifiable in monetary terms. Thisfinds strength

in the applicant's claim of 500,000,000/= in the main suit, which is

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\'!;'i'>~::tn-d-eedapplicant's acknowtedgement that, the suffering' and loss--~'_._'"'

which the applicant will be subjected to is quantifiable in monetary

terms. In the event that, the suffering and loss in quantifiable in

monetary terms, then as rightly argued by Mr. Maruma it is

compensable. Therefore, the loss and the suffering which the

applicant is subjected to if any can be adequately corppensated in. "

damages recoverable in main suit if the uncertainty is resolved in

-favour of the applicant plaintiff.

.~c"'~;;'~"':in-view of the aforesaid, for-the -time being, I,do not see the essence- ~- -,,'

of court intervention by way of granting temporary orders of

injunction to restrain the respondents from evicting the applicant.

In the upshot, the application isdismissed with costs.

s~~~~JUDGE

~ .,~;"..;,! (.~~. -.'" 7nLMAY, 2010 "'. "'''-'''"" . ."

Ruling delivered in the presence of Mr. Kibatalla learned Counsel for

, the Applicant/Plaintiff and Mr.Maruma learned Counsel for the

Respondents/Defendants.

S.E.MUGASHA

JUDGE

7THMAY, 2010

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