RULING INJUCTION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION No. 16995 OF 2024 REF 202407161000016995 (Arising from Civil Case No. 16862 OF 2024) AF FAST LOGISTICS COMPANY LIMITED --------------------------APPLICANT VERSUS MEK ONE INDUSTRIES LIMITED --------------------------------RESPONDENT RULING 6th August & 12th Aug 2024. KIREKIANO; J. The applicant has filed a civil suit 16862/2024 against the respondent; momentarily, the applicant filed this application under Order XXXVII Rules 2 (1) and Section 95 of the Civil Procedure Code [CAP 33 [R.E. 2019] (CPC). The same is supported by the affidavit of the applicant director Mr Khalid Khamis Salim, the applicant, seeks this court to grant an injunction order restraining the respondent from forcing the applicant to remove their equipment and assets and vacate from the Joint Venture ICDV Project Site at Plot Nos. 5 and 6 Nunge area Kigamboni, measuring 2,664 hectares pending the determination of the main suit. Briefly stated, on the 24th of September 2022, the applicant and the respondent entered into a joint venture agreement to operate Inland Clearance Depot for Vehicles (ICDV) activities. It was agreed that the respondent would provide his barren land at Plot Nos. 5 and 6 Nunge area Kigamboni, measuring 2,664 hectares. The applicant, on the other hand, was to provide capital for the development of the land in accordance with the requirements of the Tanzania Revenue Authority (TRA), the Tanzania Ports Authority (TPA), the Tanzania Shipping Agents Corporation (TASAC), and the Tanzania Freight Forwarders Association (TAFFA) for operating an ICDV and bonded warehouse activities. The facts show this deal did not go as smoothly as planned. On the 19th of March 2024, the respondent issued the applicant a three-month Notice of Termination of the Joint Venture Agreement, “Notice to terminate the Agreement for a Joint Venture Company between AF. Fast Logistics Company Limited and Mek One Industries Limited “The same was followed with a letter dated 5th July 2024, titled “End of the Agreement for a Joint Venture Company between AF Fast Logistics Company Limited and Mek One Industries Limited.” The applicant is thus not happy with the respondent's intention. The applicant wishes to battle the respondent's intention in the main case but has also filed this application seeking the orders indicated. The reasons in support of the application are stated in the applicant’s affidavit and will be addressed shortly. The respondent contested the application and also filed a counter affidavit deponed by Mr Mohamed Edha Awadh. When this application came for hearing, the applicant was represented by Mr Gideon Opanda, a learned advocate, while the respondent had the services of Dr Rugemeleza Nshalla and Mr Johh Chogolo, also learned advocates. From the kick-off, it is important to note that this application is brought under order XXXVII Rule 2 CPC Cap 33. This provision states that when there is a civil suit, this court may issue an order of temporary injunction to restrain the defendant from committing the breach of contract. For this court to grant the sought orders, the applicant must establish sufficient facts, which, if carefully considered, will exercise its discretion in favour of granting the orders. In so doing, the yardstick is the three tests as articulated in the famous case of Atilio versus Mbowe (1969) HCD, 284 which must be established cumulatively thus; (i) There must be serious questions of facts or issues to be tried and the likelihood of the Applicant to succeed. (ii) The Applicant will suffer irreparable loss which cannot be adequately remedied or attained by damages. (iii) Balance of inconveniences: The applicant will suffer a greater loss than the respondent if an order for temporary injunction is not granted. I will thus proceed to consider the three tests in consideration of the facts deponed in the affidavits and the parties' submissions. On the first test of the existence of a triable issue, Mr Opanda argued that there is a cause of action for breach of contract, by demanding the applicant vacate the premises. He said the applicant has filed civil case No. 16862/2024, so the applicant will argue about the breach of contract. On his part, Mr Nshalla submitted that there is nowhere in the affidavit referring to the said case or prayers sought. The said plaint is not attached to the affidavit. I have examined the applicant's affidavit and the reply to the counter affidavit. The applicant contests the breach of the joint venture agreement being implemented by the applicant and that the respondent was violating his obligations. The affidavit does not indicate the applicant's claims in the main suit, and the plaint is not annexed in the affidavit. Mr Opanda argued that there is no law requiring the annexing of the plaint. I hasten to respond here that with or without annexing the plain, it remains incumbent on the applicant to establish that there is, in fact, a pending suit in line with order XXXVII Rule 2 CPC as such. The court's consideration of the claims and prayers is intended to assess whether the applicant has claims against the respondent that are not frivolous or vexatious, the type of relief sought, and whether the reliefs can be granted. The court will not probe deeply into the merits of the case. In the decision cited by Mr Opanda, this court in Ramla Aziz Msuya vs Equity Bank (Tanzania) Limited & 2 Others (Misc. Land Application No. 28 of 2021) [2023] TZHC 18180 (6 June 2023) at page 8 Mgonya J The law requires within the ambit of this condition that the Applicant is required to show two things: first, that the relief sought by the Applicant in the main suit must be one that the court is capable of awarding, and second, the Applicant should at the very minimum show in the pleadings, that in the absence of any rebuttal evidence, he is entitled to the said relief It was expected that the applicant would indicate in the affidavit the real questions to be addressed and the reliefs sought in the main case. At the same time, I note that the applicant's counsel, in his submission, mentioned a pending civil case no 16862/2024. Without attaching the plaint or reducing the claims and prayers in the affidavit, it will be inappropriate for this court to go beyond what is before it in this application and ascertain facts elsewhere. The first test has not been established. On the second test of irreparable loss, in paragraph 17 of the applicant's affidavit, it is stated that the applicant shall suffer irreparable loss in case this Application is not heard, determined and granted; on their part, the respondent argues that the alleged irreparable loss has not been demonstrated and shown by the applicant. As such, it is the respondent stance that the agreement between the parties has already been terminated and no longer exists. In the cited case of Atilio vs. Mbowe, but also Gazelle Trucker Ltd vs. Tanzania Petroleum Development Corporation, Civil Application No. 15 of 2006, the test was expounded to the effect that irreparable injury must be a material one that cannot be adequately compensated for in damages. The injury need not be actual but may be apprehended. Now, looking at the applicant deposition in the affidavit as a whole, from what can be gathered, is the loss of business following the extension engagement with TPA to operate VICD but also the improvement of the land as deponed in paragraph 4. I am aware that the applicant did not annex the valuation report on the improvement made despite being probed in the counter affidavit. In any case, these are, fairly speaking, matters of the contract, in which the innocent party may be compensated by an award of damages. According to the figure in paragraph 4 of the applicant's affidavit, no deposition suggests that the respondent may be unable to compensate the applicant. I thus agree with the counsel for the respondent that so long as the loss can be compensated by damages, an injunction order cannot be issued. My conclusion is fortified by this court decision by Mruma J in Cosmos Properties Ltd citing, American Cyanamid v Ethicon Limited 1975 AC at page 396, that; “If damages in the measure recoverable at common law would be adequately remedied and if the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage’. Based on the facts of this application, I find that the second test has not been met. On the third test on the balance of inconvenience, the applicant's case is stated in paragraphs 5, 6, 7, and 13 of the affidavits to the effect that the applicant, in February 2024, obtained a contract with TPA for operations of ICDV. Still, the respondent went on to issue a notice of intention to terminate the contract; thus, the applicant is now operating at higher risk, as stated in the applicant affidavit but also the respondent counter affidavit. In paragraph 15 of the affidavit that, The said intention will inevitably adversely affect the operations of the Tanzania Ports Authority by stalling the smooth unloading of vehicles from the Dar es Salaam Port and therefore affect the economy in general. I have considered the applicant's deposition in the affidavit. The fact of stalling operations at Dar Es Salaam Port cannot be acted upon; it is clear hearsay unless supported by a deposition from a TPA official. I noted Mr Opanda's submission that TPA is not a person yes, not a natural one, but a legal one. Without such an affidavit from TPA, the fact on TPA's operation remains hearsay. I have also considered the issue of the existence of a large number of vehicles. I agree that going by the type of joint venture, termination poses more inconvenience to the applicant than the respondent. This is because the applicant has to vacate the area, as opposed to the respondent, who has no movement inconvenience. This test is established in affirmative. Ultimately, the tests for granting a temporary injunction must be established cumulatively. The applicant in this application has not established the first and second tests. This application cannot be granted the same stand dismissed with costs. A. J. KIREKIANO JUDGE. 12.8.2024. COURT Ruling delivered in the absence the applicants and presence of Dr Rugemeleza Nshalla and John Chogoro for the respondent. A J KIREKIANO. JUDGE 12.8.2024.