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

28sh 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

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 manner whatsoever with P lo ts N os. 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.

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 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

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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.

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 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

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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, a re 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 v o 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

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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

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 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

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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