butembo trading company limited another vs tib development bank limited 2 others 2023 tzhclandd 16796 22 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 366 OF 2023 (Arising from Land Case No. 195 of2023) BUTEMBO TRADING COMPANY LIMITED..................Ist APPLICANT MARY BEATRIX MUGISHAGWE.................................. 2nd APPLICANT VERSUS TIB DEVELOPMENT BANK LIMITED.................................................. 1stRESPONDE YONO AUCTION MART AND COMPANY LIMITED........................................................................... 2ndRESPONDEN THE HONORABLE ATTORNEY GENERAL..........................................3rdRESPONDEN RULING l&h July, 2023 & 22nd August, 2023 L. HEMED, J. BUTEMBO Trading Company Limited and Mary Beatrix Mugishagwe the applicants herein, lodged the instant matter in this court on 20th June 2023 seeking for the following orders: - "... Interpaties 2. That this honourable court may be pleased to issue and order of Mareva injuction restraining the i respondents or their agents or any one acting on their behalf from disposing ofby selling or otherwise or transferring the applicants'properties described as Plot No. 3, Mwaseni village, Rufiji Area in the name of the 1st applicant and plot no. 1106, Mbezi - Kawe comprised over certificate of Title No. 84688 in the name of the 2nd applicant pending hearing and determination of the main suit. 3. Costs of this Application be provided for. 4. Any other order(s) the honourable court may deem fit to grant." The application had been supported by the affidavit deponed by one Mary Beatrix Mugishagwe. The 1st and 3rd respondents, TIB DEVELOPMENT BANK LIMITED, and THE HONOURABLE ATTORNEY GENERAL challenged the application vide the Counter Affidavit of one MENSON NGAHA TILWA, principal officer of the 1st Respondent. The 2nd Respondent did not file counter affidavit. The application was argued by way of written submissions. Mr. Edward Chuwa, learned advocate represented the applicants, while Ms. Tausi Swedi learned state attorney acted for the 1st and 3rd respondents. 2 It should be noted that, the instant application has been made under Order XXXVII Rule 1 (a) and section 68 (c) of the Civil Procedure Code, [Cap. 33 R.E 2019]. It is thus an application for injunctive orders. I have carefully gone through the rival submissions and the affidavits deponed either to support or to oppose the application. The question is whether the application has merits. In determining the merits of this application, I will be guided by the criteria which were set by Georges, CJ. in Atilio vs Mbowe [1969] HCD 284 that before granting the order for injunction, the court must satisfy itself that: - "(i) There is a serious question to be tried on the facts alleged, and the probability that the plaintiff will be entitled to the reliefprayed. (ii) The applicant stands to suffer irreparable loss requiring the court's intervention before the Applicant's legal right is established; (Hi) That on the balance, there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting of it." Let me start with the 1st point on existence of triable issues. I have examined the affidavit that supports the application and found that in 3 paragraph 5, it has been stated that the 1st applicant has never executed any mortgage Deed over plot No. 3 situated at Mwaseni village, Rufiji and therefore, the 1st respondent has no power to sell the property. In paragraph 9 the applicants challenge the penalty and interest charged by the 1st respondent reaching to the amount of TZS 582,182,991. On their part the 1st and 3rd respondents argued that the 1st Applicant failed to repay the loan and constituted a default, while the 2nd Applicant failed to liquidate the loan as guaranteed. From the afore arguments it is unequivocally clear that there exists a prima facie case serious enough to be tried on the fact alleged. I am of the view that the 1st point on existence of prima facie case has been met. The second condition criteria is for the applicant to demonstrate that he will suffer irreparable loss if the order is not granted. In the affidavit of the applicant, particularly in paragraph 14, the applicants have stated that they will suffer irreparable loss as the respondent will auction the properties which is the centre of the core business of the 1st applicant and is matrimonial home of the 2nd applicant. The 1st and 3rd respondents argued that the applicants have failed to show any damage or injury that is 4 irreparable on balance of probability. It was contended that the respondents are the ones who are likely to suffer if temporary injunction orders are granted because the applicants have failed to liquidate the loan and neglected to repay the loan. In the present case, the applicants are the registered owners of the disputed land. If the application is refused, then the suit property will be auctioned to the 3rd parties. Definitely, the applicants are the ones who will lose the property. In Kibo Match Group Ltd vs H.S. Impex Ltd (2001) TLR 152 the court had this to say in respect to granting an application for temporary injunction: - " The court is satisfied that unless immediate action is taken the applicant may suffer irreparable damage, whether quantifiable or not, and further the final decision would be nugatory as consequence of not granting the temporary injunction." In the matter at hand, the applicants have already instituted Land Case No. 195 of 2023 against the respondents challenging, enteralia\T\e intended sale of the suit property. It is my firm view that if the court refrain from 5 granting the prayer for temporary injunction and the property in dispute gets sold, then, the end result of the main suit will be nugatory. On the balance of convenience, the applicants' counsel stated that the applicants are likely to suffer more than the respondents if an injunction is not granted. He asserted that the 1st respondent cannot be inconvenienced as she has recourse to the loan agreement against the 1st applicant where she can sue on breach of contract. It was stated that if the suit properties are sold the applicants will not only lose the building but also their business and residential home. On the part of the 1st and 3rd respondents it was stated that if injunction order is granted the respondents will not recover the loan. I have noted the conflicting interests between the parties over the disputed landed property the applicants' interest is to protect the ownership over the suit land while the respondents' interests is to realized the money advanced to the applicants through disposition of the suit properly by sale. Since in the main suit the applicants are also challenging the intended sale of the disputed property, I am of the opinion that, if temporary injunction will not be granted, and the respondents are left to proceed with the 6 intended sale of the property, it will inconvenience the disposal of Land Case No. 195 of 2023. In other words, if the application will not be granted, the parties and the court will be inconvenienced in the process of determining the main suit. From the foregoing, I find merits in the application. I proceed to grant it without costs to the effect that STATUS QUO be maintained on the suit landed property pending determination of Land Case No. 195 of 2023. It is so ordered. DATED at DAR ES SALAAM this 22nd August, 2023. 7