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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-KYEERI
RURAL CO-OPERATIVE SOCIETY LTD 1Sf RESPONDENT/DEFENDANT
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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
, "
.: -"''''':?~'''C'''~-~' .twenty
" , ',"',
years each
", " , '" -'-"~
on land measuring
.' , '- . --.' -','
933.1 acres in Silverdale and
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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

""",;,;'i><""".c~'-
notice.
, ", -.,,'. ""
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 of
injunction pending the hearing and final disposal of the land
suit 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 the

court due to lack of prior requisite leave of court;
(2) That, in absence of a resolution of the Board of Directors
Fiona Company authorising Mr. Kimaro to institute
proceedings in court, the application is not competent
,~." ",,;,,;,>,~,"'-~ . . ",,-.. -" ,. ',,' -~--< .- - -' --- '. -.. '-'" ,', ' '- _v' - ---",', .

- ' , '. "'On 25th March, 2010, the applicant filed a supplementary affidavit
deponed by Elia Kimaro. The affidavit was filed without requisite
, leave of the court. As such, the applicant's counsel was not
permitted to refer to the supplementary affidavit which was filed in
contravention of Order VIIIRule 13 provides:
No pleading subsequent to the written statement of a defendant other
than 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 thinks
fit, but the court may at a pre-trial conference require a written statement

2
" ,~".-;:>;~...'''::::.-- ',' ' "--.,"'-
 or additional written statement from any of the parties and fix a time for
presenting 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 affidavit
of Mr. Elia Kimaro found its way to court through the back door
which 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:

.,:: .,"..".;.;.;_C.":,::~"" ".,'

- . '
 Once a company is established, it can either sue to enforce legal rights or
f'r) 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 is overruled.

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

grant the temporary orders of injunction. He cited following decided
, , ' ',' ,cases.
.: ""'"""'!.~'-'",C~""'- , ','"
including,
"" "..
the
".,,,"
famous
" '., '...
case
"
of Attilio
,..
vs.
'on.
Mbowe ,," HCD
.",'
1969 ,,"'" - '''.''. "

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

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

4
 './ "- '-- ,. ..'v'~ '''..."

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) Existence of triable issues between the parties;

(2) There should be a likelihood of a matter to be terminated in
applicant'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 to
suffer 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. "
5
 >~::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.
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- "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 facts

alleged, and

""'oO.,.;-!",,
:;.~ -." - . --,
6' -"-
 (ii) A probability that the plaintiff will be entitled to the relief
0 prayed;
'c" "~,,,\;'~""',"~"~ (Hi) .,-" That the Court' s interference is necessary to protect or on" ""-'-""

the balance of convenience the applicant stands to

suffer 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.

"',
" '~"":"~."'''"c~~~'
'" ,In paragraph 14.0 of the applicant's affidavit, the applicant inter alia
, " ',"" "" " "..." " '. '" " ' ." " , ,-,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.
7

''''- .'".
-"..'":";';';"I".ic',<;::,_~. "",
 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 against

injuryby violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty
were resolved in his favour at the trial;but the plaintiff's need for such
8
 -." " --,,< .- . -.' "'" .V".-"'"''

protection must be weighed against corresponding need of the

defendant to be protected against injuryresulting from his having been
prevented from exercising his own legal rights for which he could not be
adequately compensated under the plaintiff's undertaking in damages if
the 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;'~'''''':'Tf1ere
assertion 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 loss which 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
9
 \'!;'i'>~::tn-d-eed
applicant'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 is dismissed 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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