auto mech limited and another vs azania bank limited 2021 tzhclandd 774 29 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. APPLICATION NO. 577 OF 2021 AUTO MECH LIMITED...................................... ......1st APPLICANT RAMESH PATEL.........................................................2nd APPLICANT VERSUS AZANIA BANK LIMITED..............................................RESPONDENT Date of last Order: 28.10.2021 Date of Ruling: 29.10.2021 RULING V.L. MAKANI, J The applicants named above are seeking for an order of temporary injunction restraining the respondent (herein the Bank) from selling, auctioning, transfer and /or any further interference with the right of peaceful and quite enjoyment of ownership of applicants' property located on Plot No.810, under Certificate of Title No. 86175/3, Ilala Municipal, Upanga Street, Dar Es Salaam (the suit property) pending the hearing of the main suit namely Land Case No. 176 of 2021. The application is made under Order XXXVII, Rule 1(a), (b), 2(1) & 4 and section 68 (e) and 95 of the Civil Procedure Code, CAP 33 R.E 2002 (sic!) (the CPC), and is supported by the affidavit sworn by Heena Ramesh Patel, referred to as the applicant. The application proceeded by way of oral submissions. Mr. Victor Joseph Muhana represented the applicants while Ms. Mziray and Ms. Vicky David appeared on behalf the respondent. Submitting in support of the application, Mr. Muhana said that, the fact that there is a main case in court is among the main reason for the injunction to be granted. That the court must use its wisdom to grant temporary injunction to preserve the property as explained in Order XXXVIII of the CPC. Counsel relied on the case of Atillio vs. Mbowe (1969) HCD 289. He said that the main case is Land Case No. 176 of 2021. That the aim of temporary injunction is not for the applicant's property to be lost but to allow the Court to determine and see who has the right for the grant of temporary injunction. He finally prayed to adopt the supporting affidavit by the applicant and prayed for the application to be allowed. 2 In reply Ms. Mziray said the Bank is praying to proceed with the auction of the suit property on reasons that the 1st applicant was on 21/03/2019 given a loan of TZS 540,000,000/=. That the loan was secured by the suit property and the applicant was required to pay within two months. That the reminder notice of 60 days was given by the Bank to the applicant. She said that there was also a 14 days' notice in Mwananchi Newspaper of which the auction is scheduled for 30/10/2021. Counsel said that, the claim of restructuring the loan by the applicants has never been in any agreement between the Bank and the 1st applicant in respect of the loan agreement of 21/03/2019 and the Loan Agreement of 10/05/2008. Counsel insisted that, restructuring of payment of a loan is the discretionary power of the Bank after considering reasons by the borrower as to why restructuring should take place. She said the applicant has never given plausible reasons for the restructuring. She went on saying that the court should not be used as a platform for borrowers to hide. She said that the applicant had previously been granted temporary injunction for six months, however the main case was struck out for non-appearance of both the applicants. She observed that under Order XXXVII of the CPC, temporary injunction should be issued 3 where there are sufficient reasons. She prayed for the application to be dismissed. Having gone through the affidavit and submissions from both parties, the main issue for determination is whether this application has merit. It is now settled law in this jurisdiction that for an injunction to issue three principles apply: (i) There must be a serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the reliefprayed; (ii) That the Court's interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established; and (Hi) That on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it. These principles were first laid down in our jurisdiction by the now famous case of Atilio vs. Mbowe (supra). It must be noted that the principles must be applied conjunctively. Regarding the first test, it is an undisputed fact that there is a pending Land Case No. 176 of 2021 in which the applicant is challenging the intended sale of the suit property. The cause of action having been stated in the pending main suit means that there is an arguable issue 4 to be determined by the court. The presence of a cause of action suffices to be triable issue for the parties in the main suit. The first test has therefore been met. As for the second and third tests, it is apparent from the submissions that Mr. Muhana has made no effort to demonstrate the same. As stated earlier, it is the sole duty of the applicant to demonstrate the three principles as in Atilio's case conjunctively. In his submission, Mr. Muhuna dealt with the first principle that there is a triable pending case. But he did not attend to the two remaining principles; that the applicant stands to suffer irreparable loss and that it is the applicants and not the respondent who will suffer inconvenience when an order for injunction is not granted. Mr. Muhuna in some instances, argued the court to use its wisdom to grant temporary injunction. With due respect, even if wisdom must be considered, it has to be exercised judiciously. Now, for the discretion to be judiciously exercised it must simultaneously consider the existence of the principles in Atillio's case. That all three tests must be met. I am aware of Mr. Mahuna's prayer to adopt the contents of the applicant's affidavit, however, thorough scrutiny of the said affidavit reveals nothing in support of the remaining two principles. s In any case and without prejudice to the above, the deponent of the affidavit Heena Ramesh Patel swore to be the applicant, but unfortunately, he/she does not feature in the title as the applicant. In that regard, the affidavit itself is defective and with such a defect the application does not have legs to stand on. In the result, this application is devoid of merit and it is hereby dismissed with costs. It is so ordered. V.L MAKANI JUDGE 29/10/2021 6