19890224 TZHC Dar es Salaam 1

IN THE llIGII COURT OF TA.l.iJZANIA AT DAR ES SALAM-I CIVIL CASE NO. 326 OF 1988 1,.1. AMRI SADICK at/ UMEME BUILDUJ'G CONTRACTORS ........ , o. e o • • •,. Q • •, •,. o. o, • o •. o ,PL!1INTIFF versus RULING BAIIATI 1 J. This is an application for a temporary injunction to restrain the responden·i; from talcing over the sHe. There is a civil case filed by the applicant who is a bu.ildinG Contractor ac.;ainst the respondent who is the owner of tho buil~ng under construcJGion by the applicant. There has arisen some differences between the parJi;ies and the respondent' wants to take over the site so as to proceed with the construction of his buildinc; usinr; another contractor. The applicant has filed ·this application pending the finalization of the suit 9 for a temporary injunction Ji;o restrain the respondent from -~aldng over the si to. The reasons given for this application arc that tho respondent has decided to terminate tho contract wrongfully and that ttc applicant haJ;1 done cztra work worth shs.1,937,900/= for which he has not yot·been paia_. If' the respondent talccs over tho si to there is no guarantee that he will pay this money. The applicant also submitted f1.,U'tncr through his advocate Mr. Ba.,turalti 1 learned counsel that the respondent should in the altor- na;tivo deposit the amount claimed in court if ho wants tho sHe. Mr. Banturaki also submi ttcd that if the Court decided that t;:10 respondent be given the site then tho court shot.u.d visit tho i:;i to before further Construction is done to sec what is -~here in order -'Go avoicl any dubious claims la.tor on f'rom the respondent. Tho reasons for asking to keep 'che site, Mr, Ban-'curaki concluded-, 1-roro for security purposes only, to ensure that tho applicant I s claim is ,3a·;;isfied cl!ld that if tho ros- pondent deposits in court the amount claimed thnn he can enter onto , the site. In reply Mr. Marando, learned cmmsol for tho respondent, contended that what JGhe applicant was actually applyinc for was attach- ment before judgment. As for the application for injunction, I,u,. Marando submitted that an injunction is an cqui tab lo remedy and that the applicant was in default and so ho could not seek an injunction. Mr. Marando argued that if the order for injunction is c;rontod this would mean more construction costs. Ile went on to subnit that tlle . • ... if tho respondent - . claim in this case was for money ancl as such there W-0-ald~ he no llarn • .complete his housco is allowed to Ile referred the court to Order 37 rule 1 and also to tho Case of Nur Mohaned Jan Mohamed 20 Ell.CA 8 and to the case of Raja· v Sinr;;-h AIR (33) 1946 Ou.th. 42 concerninc; tho principles of gra.ntinG an injunction and the balance of inconvenience. He also rcfcrred\t6 ·Mulla 12th Edition PGS.1151 - 1153 and Pbe1158• -2- - In a short reply, Mr. Banturald learned counsel said. that the · applicant had a lien in the house in question and that the house . ._ should not be handed over until the claira is satisfied. This application for a tcnporary injunction has been brought under Order 37 rule 1. ll.cco,rdine; to the areunents raised by the applicant, the house of the respondent is not in dispute nor is it in danger of beine wasted, danaged or alienated as rule 1 (a) of Order 37 provicles. What is in dispute is the claim for extra:·. work amounting to shs.1 ,937 ,900/= by the applicant. It would appear that rule 1 of Order 37 is not strictly applicable here. The applicant has a claiD against the respondent involving money. The applicant wishes to ha;-\7'e the house of the respondent kept in the hands of the applicrurt until the clai□ has been deternined. Such an injunction cannot be in teri:i.s of 0.37 rule 1. H would be in the nature of atta.chr.ient befo:re judgment as Mr,. Marando :rightly pointed ouJ.;. Furthermore, tl1e authorities cited by Mr. :Marando seen to show that no order of injunction s~10ulcl issue in -~his case because the balance of inconvenience falls on the respondent rather than the applicant. In other words, tt.0 balance of inconvenience would lie on tho respon- dent if the injunction sought is issued, bccnuso it is the respondent who would suffer loss if b.0 is prevented from co1:1plcting his house. Tho applicant can alweys he pn.icl danae;os with interest and costs- if he s11cc0eds in uis suit. In his submiosion to the Court Mr. Banturalci clearly stated. on behalf of tho applicanJ~ that if .the respondent were to deposit the clained anou.nt i:1 court, his cli0nt would not oppose the entry o-.f ,:;:10 respondent on tho conGtruction site. This appears to ne to be, contradictory to "i;ho subraission that the Court sl1ould visit "th0 si"iic and sec what has beer. done so far by the applicant. It so0r.1s to no tl:at tho only real in·~er0st of tho applicant is to have the anount clained deposited in court as security. But I do· not sec any necessity J:or doing that in vieu •Of the fact thn.t the house of the respondent could be at~:ached for the purpose of satis- fyine- such a claim if the appliccU1t is successful. I therefore find no neri t in the application which I disniss with costs. --_--<(:;::;-:;~;~:( . JUDGE 24/2/89 Rulin~ delivered in court. ,• --'~.~_./--~--::~~~.-~·· . '\ Jl• BiJIATI JUDGE 24/2/89