aisha khalfan soud vs amana bank ltd 3 others 2022 tzhclandd 90 28 february 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISCELLENEOUS LAND CASE APPLICATION N0.663 OF 2021 (Originating from Land Case No. 224 of2021)

AISHA KHALFAN SOUD APPLICANT

VERSUS AMANA BANK LIMITED 1®^ RESPONDENT BILO STAR DEBT COLLECTORS CO. LTD 2^^ RESPONDENT NCHAMBIS TRANSPOTERS LIMITED 3"^° RESPONDENT SULEIMAN MASOUD SULEIMAN 4^" RESPONDENT

RULING Date ofLast Order: 08.02.2022 Date ofRuiing: 28.02.2022 T. N. MWENEGOHA 3. Aisha Khalphan Soud is seeking for an Injunction order, to restrain the respondents, from disposing by way of public auction of the following properties; Plot No. 1, Block "A", C.T No. 44243, L.O 417366, located at Hanihani Urban, Igunga District; Farm No. 123, Mayanji Kishapu District, comprised of C.T 31888, L.O No. 405664; Farm No. 122, Mayanji Kishapu District, Comprised in C.T No. 405663; Plot No. 12 Block "KK", a petrol station located at Mhumbu, Shinyanga Municipality, Comprised in C.T No. 44399, L.O No. 423679 and Plot No. 6, Block "DD" Medium Density Ngolokolo, Shinyanga Municipal Council, Comprised in C.T No. 5385, L.O. No. 85162, all in the name of Seleman Masoud Seleman, pending the hearing and determination of the main suit. The application is brought under Order XXXVII Ruie 1(1)(a) and Order XLIII Rule 2, of the Civii Procedure Code, Cap 33 R. E. 2019 and supported by the Appiicant's affidavit. In a nutsheli, the background to the present application is to the effect that, the above listed landed properties are about to be soid on public auction by the 2^^ respondent, Bilo Star Debt Coliectors Co. limited, under the instructions of the respondent who is Amana Bank Limited. This foilows the defauit in paying the debt of unspecified amount owed to the 3^^ respondent, Nchimbi

Transporters Limited. The appiicant being the, wife of the 4^'' respondent, Suleiman Masoud Suieiman is against the purported auction and has further claimed to have no knowledge of the mortgage agreement over the said properties between her husband and the respondent. The appiicant insisted that, she didn't consent to the aiieged transaction. It is against this background, the applicant rushed to file the main suit. Land Case No. 224 of 2021 and this appiication seeking for the eariier mentioned orders. The appiication was heard through written submissions. Emmanuel Joachim Msengezi, learned counsel appeared for the applicant whiie the respondent was represented by Advocate Fahd Ahmed Awadhi Afif. The 2"^, 3'"^ and 4^'' respondents did not present their written submissions in respect of this appiication. Submitting in support of the application Advocate Msengezi, reiied pn the case of Atilio vs. Mbowe (1969) HCD 284, in which the three conditions precedent to the grant of temporary injunction were outiined as foliows: - The first condition is the existence of a prima facie case. The applicant's counsel maintained that there is a serious question of law to be tried by the court regarding the legality of the mortigage existing between the and 4^^^ respondents over matrimonial properties without obtaining the consent of the applicant who has interests over the said properties

by virtue of her being the wife of the 4^^^ respondent. The second principle is based on the balance of convenience, the applicant's counsel insisted that the applicant will suffer great inconvenience if the application is refused than the respondents. That, the respondents still have in their possession of other properties as securities including some equipment and vehicles. It was the arguments of the applicant's counsel that the said properties which are under the possession of the respondents can be used by them to recover the monies due through selling the same other than auctioning the landed properties in question. Thirdly, is the fact that the applicant will suffer irreparable loss that cannot be compensated by monetary terms in case the instant application is not allowed. That once the properties are sold, the applicant will have lost the interest in the said properties and will have no means of recovering the same. In reply Mr. Afif, for the respondent contended that the conditions laid down in the Atilio versus Mbowe case, supra were not met in the application at hand. That the applicant has no primafacie case against the respondents. The piedged properties were duliy mortgaged by the 4^*^ respondent to the respondent and the said mortgage was registered with a full consent of the applicant. Therefore, there exists no serious question of law to be tried by this court

as the applicant. He cited the case of America Cyanamid Company versus Ethicon Ltd (1975)AC 396 at page 510, where Lord Diplock observed that; use ofsuch expression as a probability^ a primafacie case in the context ofthe exercise ofa discretionary power to grant an interlocutory injuction leads to a confusion as to the object sought to be achieved by this form of temporary relief. The Court must not doubt, be satisfied that the claim is notfaveoius or vexatious in other words there is a serious question oflaw to be tried." As for the balance of convenience rule, he insisted that the applicant who is a plaintiff in the main case will not succeed in her case as the claims by the applicant/ plaintiff in the main case are false claims. They aim at disrupting the recovery process by the respondent. The loan was applied and advanced to the 3'^ and 4'^ respondent respectively and the pledged securities were mortgaged and all necessary documents were dully registered including the spouse consent by applicant. The respondent's counsel instated that. General Tyre E.A Ltd vs. HSBC Bank PLC,{2006> TRL, where it was observed that, 'Y/7e convenience should be taken parallel with rights of the parties and iegai principled'. Above all it is the P' respondent who will suffer an irreparable loss as a financial institution than the applicant who is an individual person. That, even if the

applicant was to succeed in the main suit, being the financial institution, the 1'^ respondent is capable of compensating the applicant the loss she would have incurred as a result of the auction. In his brief rejoinder, Mr. Msengezi for the applicant reiterated his submissions in chief. Having considered the submissions by parties and also looking at the affidavit in support of the application as well as the counter affidavit opposing this application, the issue worth of determination is whether the instant application has merit or not. The points of reference in granting an order for injuction are found in Atilio's case supra. It is settled therefore that, the one seeking for the order of injuction has the duty to prove that he or she is within the rules stated in the above-mentioned case. In this application, the applicant counsel in his submissions has insisted that, the applicant has met all the requirements as far as the preconditions for granting the temporary injunction order are concerned. Hence, he maintained that, this application should be allowed. The counsel for the respondent on the other hand insisted that, the applicant had not met the requirements for her application to be allowed. He argued that, as there are no triable issues being found in her main case, and further that, she will never suffer any loss that cannot be adequately compensated by the respondent

who is a financial Institution. On my part, I'm in line with the learned counsel for the applicant in his arguments that the applicant has met the conditions required for this court that her application as well stated in Atilio's case (supra). Starting with the condition of the existence of a primafacie cdise. The applicant managed to establish the existence of a triable issues worth of court's attention which are in the pending Land case No. 224 of 2021. In the said case, the dispute is on the legality of the mortgage agreement in respect of the suit properties between respondent and the 4^*^ respondent. The applicant being the wife of the 4^'^ respondent has all rights to protect her interests in the said properties and this court is duty bound to help her do so until otherwise decided. That being the case, if the respondent and her agents are not restrained in dealing with the suit properties in any manner they so wish, they can alienate the applicant with the enjoyment or use of the said properties permanently. That takes us to the 2""^ and 3'"^ rules as per Atilio's case (supra). The two remaining rules focus on the balance of convenience and the loss likely to be suffered by the parties if the same can be replaceable. To a great extent, I see the applicant as an individual with a clear beneficial interest of the properties in dispute stands to suffer greater hardships

and mischief for loss of the same compared to the respondent whose business will continue to operate even if the application at hand is allowed. It is in my settled opinion that, this fact places the applicant in greater hardships compared to the extent of the so-called financial loss likely to occur on part of the respondent. For the foregoing reasons, I find merits in this application and allow it accordingly with costs. The respondents, are restrained from disposing or dealing in any manner with the suit properties namely. Plot No. 1, Block "A", C.T No. 44243, LO 417366, located at Hanihani Urban, Igunga District; Farm No. 123, Mayanji Kishapu District, comprised of C.T 31888, L.O No. 405664; Farm No. 122, Mayanji Kishapu District, Comprised in C.T No. 405663; Plot Np.^ 12 Block "KK", a petrol stations located at Mhumbu, Shinyanga Municipality, Comprised in C.T No. 44399, L.O No. 423679 and Plot No. 6, Block "DD" Mediaum Density Ngolokolo, Shinyanga Municipal Council, Comprised in C.T No. 5385, L.O. No. 85162, all in the name of Seleman Masoud Seleman, pending the hearing and determination of the main suit Ordered accordingly. It is so ordered. Dated=^^ar es salaam this 28'^'^ day of February, 2022 ^9^o 0 4: T.NTMWENEGOHA :7. JUDGE