Chang Metsl vs NCL 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY ATBUKOBA MISC. CIVIL APPLICATION NO. 9269 OF 2024 (Arising from Civil Case No, 6676 of2024 High Court ofTanzania at Bukoba) CHANG METAL INTERNATIONAL MINING RESOURCE COMPANY LIMITED................ ............ .............. APPLICANT VERSUS NCL INTERNATIONAL LIMITED.......... ................... ........... ..RESPONDENT RULING 14th and 21st August, 2024 BANZIrJ.: This application emanates from Civil Case No. 6676 of 2024 which is still pending before this court whereby the applicant has sued the respondent for breach of contract. Mainly, the dispute concerns the excavator machines which were leased to the respondent on twelve (12) months7 hire purchase agreement but the respondent has failed to honour the agreement and the machines which are in the hands of the respondent are continuing with working. Hence, the applicant has filed this application under Section 68(e), Order XXXVII, Rule (l)(a)(b) and 2(1) of the Civil Procedure Code [Cap. 33 R.E 2019] (the CPC) seeking injunctive orders to restrain the respondent, their employees, servants, agents and other persons acting under their instructions from using excavator machines with Registration No. T861 EAW Page 1 of 8 and T858 EAW and Chassis number FTC003REKNN000160 and FTC003 RECNN000162 respectively and placing them under the custody of the applicant pending final and conclusive determination of the main suit. Briefly, in the affidavit sworn by YU JIN HU, the applicant has instituted the main suit contending that on 7th December, 2022 she entered into twelve (12) months' hire purchase agreement with the respondent over the above- mentioned excavator machines valued at USD 322,000 on the condition that, respondent should pay USD 53,666.8 at the time of handing over the machines to her and USD 26,833.4 would be paid monthly until the whole amount is paid before the lease would turn into sale in which the said excavators would be transferred to the respondent. However, according to him, the respondent only made four payments out of twelve payments which is contrary to their agreement. Besides, the respondent is continuing to use them in mining activities generating income while the applicant does not benefit anything from them. In this application, she is urging the court to grant injunction order to restrain the respondent from using them and the same be placed under the custody of the applicant until the main suit is determined to its finality. In his supplementary counter affidavit, the respondent contended that, she has properly performed his obligation as stipulated in their contract by Page 2 of 8 taking care of the leased excavators and conducting mechanical minor and major services. She prayed for this court not to grant the sought injunction as she is going to suffer greater economic hardship if the application is granted. She further contended that, the applicant has not met the conditions for granting temporary injunction as granting the sought order will make the main suit nugatory. At the hearing of the application, the applicant enjoyed the legal services of Mr. Peter Matete, learned counsel whereas, the respondent was represented by Mr. Zedy Ally, the learned counsel. Mr. Matete began his submission by adopting the affidavit of Mr. YU JIN HU as part of his submission. He further contended that, the respondent has refused to pay as per contract which has already expired as the last instalment was supposed to be paid in June, 2023. Apart from breaching the agreement, the respondent is still using the machines which will make the applicant suffer irreparable loss if she will continue to use them as they will be worn out. Therefore; according to him, the conditions for granting injunctive orders which were stated in the case of Abdi Ally Salehe vs Asac Care Unit Limited & Others (Civil Revision No. 3 of 2012) [2013] TZCA 179 are met through the affidavit of the applicant. Page 3 of8 In response, apart from adopting the counter affidavits of Mr. Muhuza Mumangi, principal officer of the respondent, Mr. Ally submitted that, the learned counsel for the applicant has not stated how the applicant will suffer irreparable loss because the machines are not worn out and according to him, they are in good condition. He supported his submission with the case of Anatory John Amani vs Bukoba Municipal Council and Attorney General (Misc. Land Application No. 1979 of 2024) [2024] TZHC 1114 TanzLII. He added that, the allegation that the respondent has failed to pay is still contentious as the respondent is claiming that, she had already paid the whole contractual amount which is proved by the documents attached to the supplementary counter affidavit showing that, there is no outstanding debt. He prayed for the application to be dismissed with costs. In his brief rejoinder, Mr. Matete stated that, in their pleadings, they alleged that, the respondent has failed to pay while the respondent contends that they had already paid and therefore, this establishes that, there is prima facie case which is one of the conditions for granting injunction. He further insisted that, as the respondent is still using the machines, they are worn out. In his view, the circumstances in this case are different from those in the cited case of Anatory John Amani (supra) because, that case involved Page 4 of8 immovable property unlike the case at hand which involves movable property. He reiterate his prayer for this application to be granted. Having heard the submissions by the learned counsel for both parties, and having passed through affidavit with the documents annexed, the issue for determination is whether the applicant has met the conditions for granting injunctive order. It is trite law that, before the court grants injunction, the applicant, as it was stated in the case of Abdi Ally Salehe vs Asac Care Unit Limited and 2 Others has to satisfy the court that, one, there is a prima facie case, which is one such that it should appear on the record that there is a bona fide contest between the parties and serious questions to be tried; two, he stands to suffer irreparable loss, not capable of being atoned by way of damage; and three, balance of convenience in favour of the party who will suffer the greater inconvenience in the event the injunction is or is not granted. See also the cases of Attilio vs Mbowe [1968] HCD 284, Suryakant D. Ramji vs Savings and Finance Ltd and Another [2002] TLR 121 and Philemon Joseph Chacha and Another vs South African Airways [2002] TLR 326. From the submissions of learned counsel for both sides and affidavits with their annexures attached by the parties, It is undisputed that, the parties Page 5 of 8 entered Into 12 months hire purchase agreement of two excavators valued 322,000 USD in which the respondent was required to pay USD 53,666.8 at the time of handing over the machines to her and USD 26,833.4 would be paid monthly until the whole amount is paid before the lease would turn into sale in which the said excavators would be transferred to the respondent. I have also noted that, the respondent in his supplementary counter affidavit, has attached several copies of receipts contending to be proof of payment of the money to the applicant as per their agreement. It is on record that, while the applicant oh one side, is contending that the respondent made four instalments between 4th February, 2023 and 5th August, 2023 and USD 228,093 is remained unpaid, on her side, the respondent claimed to have already paid the whole contractual amount. Furthermore, while the applicant is blaming the respondent to have failed to conduct major services to the said excavators from the moment when they were handed to her, the respondent contends that, she is taking care of the excavators by conducting minor and major services. The applicant further contends that, restraining the respondent from using the said excavators will not occasion loss to her because she is not the owner of the said machines, but the respondent contends that, this application is not for the interest of justice and once injunction is granted, she will suffer greater economic hardship than loss to be suffered by the applicant if the injunction is not granted. Page 6 of 8 Basing on their agreement entered on 6th December, 2022, it is clear that the same was supposed to be terminated on 6th December, 2023. However, until this date, eight months have passed and the respondent is alleged to have failed to pay the whole amount as agreed. Apart from that, it is undisputed that the machines are working and in one way or another generating income for the respondent. From explanation above, it is clear that, there is a dispute which will determine the right of each party in the main suit pending before this court. Concerning irreparable loss Which the applicant is likely to suffer, Mr. Matete argued that, the machines are likely to be worn out if the injunction is not granted. In my view, the machines are equipment which are depreciating and subject to be worn out as they continue working, therefore, if they are left to continue working until determination of the main suit, it is likely that, they will be worn out causing irreparable loss to the applicant in case the dispute is decided in his favour. Besides, since thus far, there is no evidence concerning transfer of ownership of the machines to the respondent, on the balance of convenience, the applicant might suffer more than the respondent in the event the injunction is not granted. In that regard, I am satisfied that, the applicant has established the conditions for injunction to be granted. Page 7 of3 Consequently, I grant the application by restraining the respondent, their employees, servants, agents and other persons acting under their instructions from using two excavator machines with registration number T861 EAW and T858 EAW and Chassis number FTC003REKNN000160 and FTC003RECNN000162 respectively, and placing them under the custody of the applicant pending final determination of Civil Case No. 6676 of 2024. In the circumstance, each party shall bear its own costs. It is so ordered. I. K. BANZI JUDGE 21/08/2024 Delivered this 21st day of August, 2024 in the presence of Mr. Peter Matete, learned counsel for the applicant, Mr. Zeddy Ally, learned counsel for the respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. Page 8 of 8