Annunciata v ABC Injunction

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT MWANZA MISC. COMMERCIAL APPLICATION NO. 20636 OF 2024 (Arising from Com m ercial Case No. 18537 of 2024) ANNUCIATHA KATE MAKILAGI (Adm inistratrix of estates of the late SAID KATE MAKILAGI) ……. APPLICANT VERSUS AFRICAN BANKING CORPORATION (T) LTD.......................... 1ST RESPONDENT STEAM GENERATION RECOVERIES LTD................................. 2ND RESPONDENT RULING Nov. 29th, 2024 & March 7th, 2025 Morris, J The applicant in the instant matter prays for this Court to issue an order for interim injunction against the respondents, their agents, workmen or any other person working under their instructions from: attaching, selling or disposing in any way; appointing the receiver whereof; leasing or entering unto procession of the applicant’s trucks registered as T 330 EAW, T 258 EAW, T 986 EAH, T 332 EAW, T 991 EAH, T 674 DMJ and T 585 DKZ; and landed properties described as Certificate of title no.18924 and 064009/93 2 on Plot numbers 152 and 154, Block ‘’T’’ Majengo area, Shinyanga Municipality respectively, Certificate of title no. 064006/6 on Plot no. 10, Block ‘’A’’ Industrial Area Shinyanga Municipality pending hearing and final determination of the main Suit. She further prays for costs of this application plus any other order(s) as this Court may deem equitable, fit and/or just to grant. The application is by way of chamber summons under sections 68 (c) and (e), 95 together with Order XXXVII Rules (1)(a) & (4); all of the Civil P rocedure Code , Cap. 33 R.E. 2019 (the CP C ). In support thereof, is an affidavit of Annunciatha Kate Makilagi. According to the applicant, the main suit stated in the application is Commercial Case No. 18537 of 2024 (the suit). The suit is pending before this Court. Therein, the applicant is the plaintiff and the two respondents are the defendants respectively. The application was contested by the respondents via a counter affidavit sworn by Nyanjala Mtebe. Brief facts of this matter are to the extent that, the applicant is an administratrix of the estate of her late husband - Said Kate Makilagi (the deceased). During his lifetime, the deceased obtained secured loans from 3 the 1st respondent. The securities for the loan included vehicles and landed properties. Until his demise, the deceased did not service the aforesaid credit facility. Thus, the applicant in her capacity as the administratrix thereto, was served with default notice by the 1st respondent. The notice was associated with the latter’s intent to auction the securities mentioned above. The notice was later on, followed by attachment of the said securities. The attachment was effected by the 2nd respondent. The applicant consequently instituted the suit. In this matter, the applicant has alleged that the loans were under coverage of the deceased’s life assurance policy. As such, the insurer thereto, is responsible to repay the outstanding amount as per clauses 7.6 and 7.7 of what is termed as Term Loan Facility and Asset Financing Facility (annexture LLA-4 collectively), respectively. However, this allegation was explicitly disputed by the respondents in their counter affidavit. They stated that, although the alleged insurance policy was mentioned in annexture LLA-4 as one of the securities in the said loans, the deceased was responsible to obtain and submit it to the 1st respondent but he opted not to. 4 Hearing of the application was by way of written submissions. The applicant and respondents were respectively represented by Messrs. Amos Gondo and Mohamed Muya, both learned counsel. The applicant’s counsel commenced his submissions by praying to adopt the affidavit in support of the application. He then argued that, the court’s power to grant temporary injunction is predicated upon the applicant meeting conditions set out in the cases of Atilio v M bow e (1969) HCD 284 and Giella v Cassm an Brow n and Com pany Lim ited (1973) EA 358. The conditions include; One, there must be a serious question of fact or issue to be tried by the court and likelihood of the applicant to succeed. Two, the applicant will suffer irreparable loss which cannot be adequately remedied or atoned by damages. Three, on balance of convenience the applicant will suffer greater loss than the respondent if the order for temporary injunction is not granted. He thus maintained that the applicant in this matter had met all the three conditions. To him, the applicant managed to prove existence of a serious question to be determined or tried by this Court under paragraph 5 of the applicant’s affidavit. That is, the outstanding loan should be cleared by the insurer under 5 the life assurance policy which secured the loan, in accordance with clauses 7.6 and 7.7 of the facility agreements No. 372 dated 26.05.2022 and 26.07.2022, respectively. Regarding irreparable loss, he submitted that if the application is not granted then the applicant stands to suffer loss which cannot be compensated in damages. On this position, he made reference to the case of T.A K aare v General M anager M ara Cooperative Union (1984) Lim ited (1987) TLR. 17. Therein, it was held at page 10 that; irreparable injury does not mean that “there must be no physical possibility of repairing the injury but merely that the injury would be material i.e. one that could not be adequately remedied by damages.” In line with the above position, he asserted that if the attached property is disposed the applicant will suffer loss that cannot be compensated anyhow because the said properties are subject to the dispute in the suit. That, if the application is not granted, the respondent will dispose the said properties and by the time the applicant succeeds in the suit, should that happen; the subject properties will no longer be in existence. Hence, the respondent will have to compensate the applicant through other means. 6 Submitting on the condition of balance of convenience, the counsel argued that the applicant stands to suffer greater loss than the respondents if this application is not granted. In this connection, he asserted that should the applicant succeed in the suit in absence of the properties attached; she will have no other means to redeem the same. To the contrary, the respondent will still have the right to realise the securities upon failure of the suit. Conclusively, he prayed that the application for temporary injunction be granted. On his part, the respondents’ counsel replied by first acknowledging the three conditions established in Atilio’s case (supra). He then emphasised that, the applicant failed to meet the subject conditions in the matter at hand. He thus insisted that, all the conditions must be met without missing a single one. On this position, he made reference to the case of Christopher P . Chale v Com m ercial Bank of Africa , Misc. Civil Application No. 635 of 2017 (unreported). He reiterated that, at page 4 of this ruling it was held that; the conditions under discussion operate conjointly. Thus,” meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction.” 7 On the proof of existence of prima facie case or triable issue, the defence counsel submitted that the applicant failed to prove that there was a life insurance policy of the deceased from any insurance company as it was his responsibility to make follow up of the said insurance and submit it to the 1st respondent as additional security. Moreover, he argued that the deceased never implemented this responsibility. To buttress this position, reference was made to section 110(1) of the Evidence Act , Cap. 6 R.E. 2022 to the effect that the applicant was under the burden of proving her allegations hereof. On the condition of proving irreparable loss, the respondents submitted that if the application was to be granted; the 1st respondent would suffer irreparable loss as opposed to the applicant who has failed to mention in her affidavit, any sort of irreparable loss in case the application is granted. On this position of requiring the applicant to disclose specific irreparable losses, reference was made to the case of Joelin John K atazia v Gulam Dew ji and Green Light Auction M art , Misc. Land Case Application No. 259339 of 2023 (unreported, at pages 6 and 7). 8 Submitting on the condition of balance of inconvenience, he argued that the 1st respondent will suffer greater loss if the application is granted than what the applicant will encounter if the opposite results is arrived at. It was maintained further that the outstanding amount was around TZS 1.1 billion. To the respondents thus, if the application was granted; they would lose the said outstanding amount plus the properties attached. Moreover, they asserted that, since the outstanding amount is recoverable under the securities then nothing will affect the applicant as the deceased consented to their disposal in case of default that is why he registered them as securities. Conclusively, the respondents prayed for dismissal of the application with costs. Upon scrupulous examination of the application, parties’ affidavits and the rival arguments by their lawyers, the determinable issue is whether the applicant has managed to exhibit the conditions for grant of temporary injunction. As rightly argued by both parties’ counsel, the conditions for grant of temporary injunction were well laid down in the infamous case of Atilio M bow e (supra). Then followed many case laws in that respect including the case of R am la Aziz M suya v Equity Bank (Tanzania) Lim ited and Tw o 9 Others , Misc. Land Application No. 28 of 2021 (unreported). In the latter case, it was held that; “The law is firm as the conditions for granting temporary injunction were set out in the case of ATI LI O V M BOW E (supra). Since then, they have been repeatedly reinstated in numerous other decisions. These conditions are: 1. That, on the facts alleged, there must be a serious question to be tried by the court, and a probability that the plaintiff will be entitled to the relief prayed for (in the main suit); 2. That the temporary injunction sought is necessary in order to prevent some irreparable injury befalling the plaintiff while the main case is still pending; and 3. That, on the balance, greater hardship and mischief is likely to be suffered by the plaintiff if temporary injunction is withheld than may be suffered by the Defendant if the order is granted.” Therefore, the applicant in the instant matter was duty bound to prove the three conditions stated above. And as stated in the Christopher’s case (supra) , the conditions must be met conjunctively. In terms of the first condition, the applicant insisted that there exists a triable issue in the suit to the extent that, the facilities ought to be recovered under life insurance of 10 the deceased as opposed to the attached properties. This fact was explicitly disputed by the 1st respondent. To the latter, the deceased never furnished the lender with the alleged life insurance as additional securities to the facilities, others being the properties so attached. Thus, from this line of argument from both parties; it is obvious that this issue is serious calling for determination of this court in the suit. As such, it is my considered view that the applicant has managed to prove this condition. Regarding the second condition, the applicant’s stance is that in case he succeeds in the suit after the 1st respondent disposing the attached properties, she stands to suffer loss that cannot be compensated. Nevertheless, the applicant did not disclose in her affidavit the kind of loss she will likely suffer in case the application is not granted. Relevant on her part, is paragraph 16 of the affidavit in support of the application. Evidently, the same is couched in general terms. It was deposed thereof that the applicant will suffer irreparable loss without stating the anticipated loss in details. As rightly argued by the respondents, the applicant in an application of this nature is duty-bound to prove specifically the irreparable losses he is 11 likely to suffer in case the application is not granted. General averment that he stands to suffer the said loss is, in my considered opinion, insufficient. See, Joelin John K atazia’s case (supra). Further, it is imperative that the applicant should prove how the alleged losses cannot be atoned by award of damages (Am erica Cyanam id v Ethicon Lim ited [1975] AC 396). Thus, I find that the applicant has failed to prove this condition. In regard to the third condition, the applicant maintained that she stands to suffer greater loss than the respondent if this application is not granted. This is due to the fact that should she succeed in the suit in absence of the properties attached, there will be no other means for her to redeem the same but the respondent will still have the right to realise the securities should she succeed in the suit as well. I think this condition is not met as well. This simply because the same is not deposed in her affidavit. In nutshell, it is an argument from the Bar. It is now settled that arguments from the Bar are not evidence. See, for instance, the Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairm an, Bunju Village Governm ent & 11 Others , Civil Appeal No. 147 of 2006 (unreported). 12 In final analysis, two of the three mandatory conditions remain wanting. Determinatively therefore, the issue raised above is hereby answered in negation. Thus, the application does not succeed. It accordingly stands dismissed. I however, desist to award costs hereof based on circumstances of this case; and given the capacity under which the applicant is prosecuting the proceedings before this Court. It is so ordered. C.K.K. Morris Judge March 7th, 2025 13 Ruling delivered this 7th day of March, 2025 in the presence of Messrs. Amos Gondo and Mohamed Muya, both learned counsel for the applicant and respondents respectively. C.K.K. Morris Judge March 7th, 2025