IN THE HIGH COURT OF ZANZIBAR

AT TUNGUU
CIVIL APPLICATION NO 09 OF 2022
(Arising from Civil Case No 47 of 2021)

PENNYROYAL LIMITED …………. APPLICANT

VS
AECUS LIMITED ………….. 1ST RESPONDENT
THE MINISTER FOR LAND
AND HOUSING DEVELOPMENT …………. 2ND RESPONDENT
THE ATTORNEY GENERAL ZANZIBAR …. 3RD RESPONDENT

RULING OF THE COURT

28/03/2023 & 11/05/2023

KAZI, J.:
The applicant, by way of chamber summons, filed this application
praying for the following orders: -
1. The honourable Court be pleased to order that the Respondents,
or any other person, officer, organ or authority, acting on their
behalf, to be restrained from legally and or physically interfering
with the Plot of land identified as DP 1309/2014 in Matemwe
Muyuni and Tazari area, North Region, Zanzibar, measuring
411.92 Ha, as a whole or any part thereof, pending hearing and
determination of the main suit and or any Counterclaim therein.
2. The honourable Court be pleased to order that the Respondents,
or any other person officer, organ or authority, acting on their
behalf, to be restrained from reinstating, replanning,
resurveying, removing all or part of, entering, taking possession

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 or any similar conduct or acts aimed at any of the said conduct,
including restraint from changing the Leasehold documentation,
maps, replan, resurveying, zoning, etc. of all and any land under
DP 1309/2014 in Matemwe Muyuni and Tazari area, North
Region, Zanzibar, measuring 411.92 Ha, or any part thereof,
pending hearing and determination of the main suit and or any
Counterclaim therein.
3. The honourable Court be pleased to order that the Respondents,
or any other person officer, organ or authority, acting on their
behalf, to be restrained from initiating, continuing or pursuing
execution of any civil case where the Applicant was or is not a
Party, in respect of all that land under the said Plot DP
1309/2014 as a whole or any part thereof, pending hearing and
determination of the main suit and or any Counterclaim therein.
4. Costs be provided for.
5. Any order which the Honourable Court shall deem fit to grant to
better meet the ends of justice.

This application is preferred under sections 70 (1) (c) and (e) and
section 129, Order XLIV rule 1 (a), Order XVIII rule 3 and Order XLIV
rule 2 (1) of the Civil Procedure Decree, Cap 8 of the Laws of
Zanzibar (the CPD) and any other enabling provisions of the laws, and
supported by the affidavit of Mohamed Issa Khatibu, Principal officer of
the applicant company.

Before me, the applicant was represented by Mr. Elia Lesha Mgoya and
Happiness Mathias, learned advocate, whereas the first respondent had

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the service of Mr. Ishaq Shariff, learned advocate and the second and
third respondents were represented by Ms. Sarah Khatau, learned state
attorney. The application was argued by way of written submissions.

Mr. Mgoya started his submission by adopting the contents of the

applicant's affidavit to support the application. He then quoted sections
70(1) (c) and (e) and Section 129, Order XLIV Rule 1(a), Order XVIII
Rule 3 and Order XLIV Rule 2(1) of the CPD and the authoritative case
of Atilio vs Mbowe [1969| HCD 284 quoted in several cases such
as Lenasia William vs EFC Tanzania Microfinance Bank Ltd &
Others (Misc. Land Application 854 of 2017) |2018| TZHC Land D 403
and Abdi Ally Salehe vs Asac Care Unit Limited & 2 others, Civil
Revision No.3 of 2012. Mr. Mgoya submitted that all cases quoted
reiterated the conditions which guide the Court in granting or rejecting
orders of a temporary injunction, which are: -
1. That there is a serious question to be tried and the Plaintiff
Applicant is likely to succeed;
2. That the Court's interference is necessary to protect the applicant
against irreparable loss;
3. That on a balance of convenience, there will be greater hardship
on the part of the plaintiff/applicant if injunction is not issued.

In elaborating on the said principle to the instant application, Mr. Mgoya

submitted that there is a serious question to be tried, and the
plaintiff/applicant is likely to succeed. He added that the respondents
have already initiated execution of the Decree emanating from
Exparte/Default Judgment which was entered in a suit where the

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applicant was not a party but related to property owned and held by the
applicant. The property which is the subject matter of this Application.
He submitted further that the applicant had been issued with a letter
showing the respondent's joint and several intentions to interfere with
its title and possession of the property, despite the fact that the
applicant holds a valid title and that the applicant has made a
substantial investment in it as deponed in paragraphs 3, 4, 5, 9, 10, 13,
18, 21, 22 and 23 of the applicant's affidavit. In support of his
submission, Mr. Mgoya refers the case of Heir of Nikobamye Mathias
vs The Attorney General of Burundi EACJ at Arusha App No. 02 of
2020 cited in the case of Geilla vs Cassman Brown & Co. Ltd [1973]
E.A. 358 which held that: -

"First, an applicant must show a prima facie case with a probability

of success..."

Therefore, it was his submission that there is a prima facie case with a
probability of success leading this matter to be more worthy of
adjudication by this Court. Thus, he added, an injunction has to be
issued before the main suit is finally determined.

Arguing in respect of the second principle that the Court's interference is

necessary to protect the applicant against the irreparable loss, Mr Mgoya
contended that, in this manner, the applicant stands to suffer an
irreparable loss due to the respondent's interference with its land
ownership and land use rights by evicting the applicant from the land or
any part of it since the applicant is the bonafide owner of all land under

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DP 1309/2014 of which she has invested and entered legally binding
agreements for management, designing, construction, marketing,
hospitality, developed infrastructure network and extra of which costs
will not be recoverable as shown in paragraphs 9, 15, 17, 24 and 27 of
the applicant's affidavit. To support his submission, he referred to Kibo
Match Group Limited vs His Impex Limited (2001) TLR 152 cited
in Pudensiana Hillary vs Standard Chartered Bank (T) Ltd and
Two Others, Misc. Land Application No. 24 of 2018, which held: -

"The court is satisfied that, unless immediate action is taken the

applicant may suffer irreparable damage whether quantifiable or
not and further the final decision will be rendered nugatory as a
consequence of not granting the temporary injunction".

Therefore, Mr. Mgoya maintained that the applicant stands to suffer an

irreparable loss due to the respondent's interference with its land
ownership and land use rights.

Submitting on the third principle on a balance of convenience, Mr.

Mgoya stated that there would be greater hardship on the part of the
plaintiff/applicant if injunction is not issued. Referring to paragraphs
27(c), 3, 4, 5, 8 and 17 of the applicant's affidavit, Mr. Mgoya claimed
that the applicant would not be adequately compensated by awarding of
damages and, therefore, she stands to suffer more hardship if the
application is not granted than what will be suffered by the first
respondent if the same is granted.

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The advocate for the first respondent did not file a written submission in
reply.

Replying for the second and third respondents, Ms. Khatau, by way of
introduction, contended that on 24 August 2021, the first respondent,
who was the plaintiff, filed a Civil Case No. 47/2021 against The
Attorney General and Penny Royal Limited, the applicant in this
application. Ms. Khathau contended further that on 13 October 2021,
Aecus Limited decided to withdraw Civil Case No. 47/2021, and on 20
February 2022, this Honorable Court marked the same withdrawn. The
applicant (the 1st Defendant then) filed a written statement on 21
January 2022 together with a counterclaim and an application for an
injunction.

I will pose here a bit and wish to state, with much respect, that what
was submitted by Ms. Khatau is a blatant lie. Mr. Ali A. Hassan made the
same untruth story when hearing the preliminary points of objections
raised by the second and third respondents in challenging this
application in Pennyroyal Limited v Aecus Limited & Others (Civil
Application 9 of 2022) [2022] TZZNZHC 37. In my ruling delivered on 30
August 2022, before deliberating on parties’ submission, I hurriedly
demonstrated that: -

"Before I determine the matter, it is noteworthy that the main

suit is not assigned to a judge for determination.
In the meantime, I have been assigned only to determine the
instant application."

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Later in my ruling, I confirmed that the main suit (Civil Suit No. 47 of
2021) was still pending, awaiting the determination of the applications
instituted by the parties along with it. It is, therefore, unprofessional,
and unethical for the learned state attorney to reiterate this untruth
statement, knowing that what she alleges is untrue. For what stated
above, I will not consider the respondent's introductory party of her
submission.

In her further reply, the respondents adopted the supplementary

counter affidavit sworn by Ali Ali Hassan. Subsequently, she quoted
principles governing the granting of the application of this nature as
stated in the case of Attilio (supra). It was Ms. Khatau's submission
that the applicant had failed to establish and prove the said principles in
his entire submission as required. She, therefore, prayed this application
to be dismissed. In her further submission, the learned state attorney
stated that there must be a prima facie case and demonstrated the
disputed history between the parties concerning Land Lease No. D.P.
1309/2014, and the decision of the Court in Civil Case No. 5/2013. In
her submission, she contended that the cited case of
Heirs of Nikobamye Matias vs Attorney General of Burundi EACJ
AT ARUSHA CIVIL APP. NO. 02 OF 2020 is distinguished as the Court
departed from its position and adopted the decision in Forum Pour le
Reinforcement De La Societe Burundi and Another EACJ APPL.
NO 16 OF 2016 regarding the demonstration of a serious triable issue
rather than a prima face case in an application for interlocutory
injunction. She, therefore, maintained that the applicant's cause of

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action is unrealistic. She argued that the disputed lease and the whole
project no longer exist. Thus, the applicant must first apply for
reinstatement of her lease to the Ministry of Land and ZIPA for
reinstatement of her project. According to the respondent, the applicant
has no cause of action against the respondents to the main suit, and it
will be absurd to issue an injunction order in those circumstances.
Regarding the irreparable loss, Ms. Khatau contended that a mere
submission that the applicant will suffer irreparable loss without showing
to what extent and proof of unmeasured injury is insufficient for them to
be granted the order prayed.

As regarding the balance of inconvenience, the respondent averred that

there is no prejudice that the applicant will suffer, considering that the
disputed lease and the whole project no longer exist. She, therefore,
claimed that the event had taken all prayers in this application.

In rejoinder, Mr. Mgoya reiterated his submission in chief and added

that all principles from Atilio (supra) were submitted descriptively.

From what submitted by the parties, the Court is invited to determine

whether this application have merit. In doing so, I will bind myself to the
authoritative and persuasive decisions revealed by both sides. As
emphasized by the learned legal practitioners, the guiding principles in
granting or otherwise for an order of temporary injunction is as outlined
by the celebrated case of Atilio v Mbowe. It is the duty of the Court,
therefore, to consider whether the applicant has managed to establish
the said three principles.

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The first principle or condition that the applicant must establish is the
existence of a prima facie case or serious question to be tried and that
she is likely to succeed. The subject matter in this matter is the plot of
land identified as DP 1309/2014 situated at Matemwe Muyuni and Tazari
area. In the affidavit, the applicant claimed to be a bonafide purchaser
for value who the Government of Zanzibar granted a lease of the
disputed land for value without notice of any party's claim against the
disputed land. On the other side, the first respondent, by way of counter
affidavit deponed by his advocate, contended that the applicant has
never been a bonafide purchaser of the disputed land and that the
bonafide purchaser is the first respondent who bought the disputed land
from the original owner. Whereas the second and third respondents'
counter affidavit shows that the applicant's lease concerning the land in
dispute was invalidated by the Court order in 2018 in Civil Case No. 05
of 2013. Looking at these facts and many others as deponed from the
parties' affidavit and counter-affidavits, and after going through the
pleadings, I am convinced that there is a serious triable issue of
ownership by lease of the disputed land which needs to be determined
by the Court.

Regarding the second condition concerning the irreparable loss; Having

gone through the entire affidavit, especially paragraphs 9, 15, 17, and
27, I am settled that the applicant has clearly demonstrated how she
substantially invested in the development of the disputed land.
Therefore, it is clear that the interference of this Court is necessary to

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protect the applicant from injury, which could be irreparable pending the
determination of the main suit.

As regards the last condition on the balance of convenience, again, I am

convinced that the applicant will suffer greater hardship if the
application is not granted compared to what the respondents will suffer
if the same is granted. It is suffice to say that according to paragraph 24
of the applicant's affidavit, it is undisputed facts that the applicant has
vacant possession of the disputed land. Therefore, since there is a
pending suit regarding the same land, the balance of convenience tilts to
the applicant, who is still in vacant possession.

From what I have observed herein, the applicant successfully managed

to establish all three conditions for the Court to grant this application. In
the event, this application is granted with the following orders: -
1. The Respondents, or any other person, officer, organ or authority,
acting on their behalf, are restrained from legally and or
physically interfering with the Plot of land identified as DP
1309/2014 in Matemwe Muyuni and Tazari area, North Region,
Zanzibar, measuring 411.92 Ha, as a whole or any part thereof,
pending hearing and determination of the main suit and or any
Counterclaim therein.
2. The Respondents, or any other person, officer, organ or authority,
acting on their behalf, are restrained from reinstating, replanning,
resurveying, removing all or part of, entering, taking possession
or any similar conduct or acts aimed at any of the said conduct,
including restraint from changing the Leasehold documentation,

10
 maps, replan, resurveying, zoning, etc. of all and any land under
DP 1309/2014 in Matemwe Muyuni and Tazari area, North
Region, Zanzibar, measuring 411.92 Ha, or any part thereof,
pending hearing and determination of the main suit and or any
Counterclaim therein.
3. The Respondents, or any other person, officer, organ or authority,
acting on their behalf, are restrained from initiating, continuing or
pursuing execution of any civil case where the applicant was or is
not a party, in respect of all that land under the said Plot DP
1309/2014 as a whole or any part thereof, pending hearing and
determination of the main suit and or any Counterclaim therein.

Costs shall be in the cause. It is so ordered.

Dated at Tunguu, Zanzibar this 11th day of May 2023.

G. J. KAZI
JUDGE
11/05/2023

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