DANFORD MARTIN MUYANGO VS BAKARI MFAUME KAMBI RULING

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISC CIVIL APPLICATION NO 1189 OF 2025 DANFORD MARTIN MUYANGO…………....……..…………APPLICANT

VERSUS 1. BAKARI MFAUME KAMBI ……………………..……1ST RESPONDENT 2. COLUMBA BAKARI KAMBI ………………..……….2ND RESPONDENT

RULING Date of last Order: 24/03/ 2025 Date of the Ruling: 27/03/ 2025 LONGOPA, J.: This is an application for orders of temporary injunction against the respondents, their agents or any other persons acting under their instructions from continuing using the land until the final determination of Civil Case No 796/ 2025. It is made under Section 68(e) and Order XXXVII Rule 1(a) of the Civil Procedure Code, Cap 33 R.E.

2019. The dispute emanated from unpaid purchase amount of two hundred TZS 211, 660,000/= that the respondents owe the applicant. The applicant 1|Page and respondents were parties to the series of land purchase agreements whereby the applicant was the Purchaser and the respondents were the Vendors. In course of the transactions the Sale Agreement of the land at Plot 238, Block ‘BJ’ Miyuji Proper, Miyuji situated in Dodoma City, with a size of square meters 20510 and Reg. Plan: 130533 comprising both land and a school called Green Harvest Pre and Primary School. In course of transactions, the Purchaser did not manage to pay the purchase price timeously and the parties agreed to enter into another agreement to terminate the Purchase Agreement of Plot 238, Block ‘BJ’ Miyuji Proper, Miyuji Ward and Return of Purchase Price of Tanzanian Shillings Two Hundred eleven million six hundred sixty thousands only (TZS 211, 660,000/=) payable on installments, namely: 30th April 2024 repayment of TZS 42,332,000/=; on 30th July 2024 repayment of TZS 42,332,000/=; 30th September 2024 repayment TZS 42,322,000/=; 30th January 2025 repayment of TZS 42,332, 000/= and on 30th April 2025 repayment of TZS 42,332, 000/=. 2|Page It appears that the respondents have not complied with the repayment schedule while entered into another agreement to sale the land to another person since February 2024 but he

has not discharged repayment of the Purchase Price. It is in those circumstances, the applicant was compelled to institute this application pending the hearing of the Civil Case No 796 of 2025, praying for the following orders, namely: EX-PARTE 1. That, this Honorable Court be pleased to grant an order of temporary Injunction against the Respondent herein, their agents or any person(s) acting under their instructions from continuing using the suit lands/premises stated in CIVIL Case Reference No 20250113000000796 pending hearing of this Application inter parties.

2. Costs of this application be provided for.

3. Any other relief this Honorable court may deem fit and just to grant. 3|Page INTER-PARTIES 1. That, this Honorable Court be pleased to grant an order of temporary Injunction against the Respondents herein, their agents or any person(s) acting under their instructions from continuing using the suit land/premises stated in CIVIL Case Reference No 20250113000000796 pending hearing and determination of CIVIL Case Reference No 20250113000000796 which is before this Honorable Court.

2. Costs of their application be provided for.

3. Any other relief this honorable court may deem fit and just to grant. The application is supported by an affidavit of one Danford Martin Muyango, the applicant and resisted by two identical counter affidavits of Mr. Bakari Mfaume Kambi and Columba Bakari Kambi, who are the respondents. 4|Page This Court dispensed with ex parte orders as when the parties appeared before the Court, the respondents were allowed to file a counter affidavit and inter partes hearing was scheduled. On 24th March 2025, the parties appeared for inter partes hearing of the application for injunction viva voce. The applicant enjoyed the legal services of Mr. Cosmas Mataba, learned advocate while the respondents enjoyed the legal services of Mr. Robert Wilson, learned advocate. Mr. Cosmas Mataba, learned advocate for the applicant argued that the applicant entered into agreement with the respondents for purchase of the land with buildings of the school named Green Harvest Pre & Primary School at Plot No. 238 Block BJ Miyuji Proper within Dodoma City. The agreement was entered in on 24th March 2023. However, the purchase did not materialize as the applicant failed to pay the instalments time while the respondents changed the purchase price to the one agreed before. It was on 24th January 2024, when the applicant and respondents agreed to terminate the sale agreement and entered into an agreement to

refund the whole Tanzanian Shillings two hundred eleven million six hundred and sixty 5|Page thousand only (TZS 211, 660,000/=) that applicant had paid the respondents. It was submitted that the new agreement was entered between the parties for the repayment would be in five instalments from 30th April 2024 to 30th April 2025 whereby any failure to pay any of the instalments would attract penalty of 10% for the delayed instalments. All the instalments were delayed in repayment whereas the respondent did not pay any of four instalments timely todate. According to the applicant, it was further agreed that if the land which is the subject matter is sold then the purchaser was entitled to be repaid at once the whole amount of TZS 21,660,000/= in a single instalment and the subject matter was made a security of the repayment and that the applicant was categorically empowered to seek injunctive reliefs on the subject matter Plot No. 238 Block BJ Miyuji Proper within the Dodoma City. The respondents sold the land on 14th March 2024 at value of TZS 515,000,000/=and paid total of TZS 200 million but neglected to repay in accordance with terms of the agreement. The respondents intend 6|Page to dispose the landed property in full by 30th March 2025 when the last instalment shall be paid thus leaving the applicant without any recourse in case a decree is entered in his favour. It was

applicant’s counsel submission that counter affidavits of the respondents admitted existence of the agreement dated 24/01/ 2024, the whole debt amount, failure to repay the instalments and that the agreement is about to come to an end. He refuted that contents of paragraph 11 of the respective counter affidavits is baseless as there is nothing frivolous. The respondents are admitting to have sold the land/property to another person. He argued that the counter affidavits are objecting the obvious facts on the agreement between the parties. In the agreement forming part of the counter affidavit there is explicit clause on 10% interest as penalty for failure to repayment of any instalments agreed by the parties. On the other hand, Mr. Robert Wilson stated that the application for temporary injunction against the use transfer of the property/ land in Plot 7|Page No 238 Block BJ Miyuji Proper is untenable. It was argued that though there is a pending civil suit, the claims are different in the Plaint and in the affidavit in support of the application. According to respondents’ counsel, the affidavit does not disclose the amount of money that was repaid by the respondents already which was about TZS 65,000,000/= (Six five million shillings) precisely at the time of the institution of the case. The basis of temporary injunction is enforcing the agreement between the applicant and the

respondents as the Purchaser and Vendors respectively. Paragraph 21 of the affidavit calls for temporary injunction against the use of the land and including restricting the disposal of the land which is against the prayer in the Chamber Summons. The agreement allows disposition of the land and repayment of the whole amount at once. Restricting the disposition/ sale by the applicant is against the agreement entered by the parties. The affidavit in Paragraph 19 required a lump sum of all the amount indebted to be repaid which is TZS 211, 660, 000/= it was submitted that 8|Page though truly the respondent sold the land to another person they were paid TZS 200 million which could not discharge the whole debt. Mr. Robert Wilson cited a case of CPC International Ink versus Zainab Grain Millers, Civil Appeal No 49 of 1995, where the Court of Appeal laid down three principles for the grant of injunction, which are: (a) There must be a prima facie case that there is possibility of success on party of the applicant; (b) that irreparable loss to the applicant shall result in case injunctive orders are not granted; and (c) on balance of probabilities, the circumstances favours the applicant that he is likely to suffer more than the respondent. On irreparable loss, it was submitted that there is nothing on part of the applicant indicating that he shall suffer irreparable loss. The

reasons are three namely that an injunction could prevent the applicant from being repaid as the land is the source of income for the repayment. Also, Paragraph 7 of the annexure to the counter affidavits provides for interest on delayed repayment instalments. The contract comes to an end on 30th April 2025. The applicant has alternative remedy. 9|Page On prima facie case, the respondents reiterated that the matter is based on the breach of contract. The applicant has no cause of action. The cause of action could only arise on 30th April 2025 when the contract comes to an end. On balance of convenience, it was argued that the same does not favour the applicant. The agreement has not reached the termination date by expiration of time thus the applicant shall have other remedies available to him. It was the respondents’ submission that temporary injunctions should not granted as the respondents are still repaying the debt to the applicant. In brief rejoinder, Mr. Cosmas Mataba, learned advocate reiterated agreement has empowered the applicant to have a cause of action when a single instalment is not paid timely. With regard to applicability of the principle in the CPC case, it was reiterated that cause of action arose on 30/04/ 2024 when there was failure of the repayment of the first instalment and the rest of the instalments have not been paid timely. Thus, prima facie case

exists from the outset. 10 | P a g e On irreparable loss, it was argued that the applicant is likely to suffer the irreparable loss as the respondent shall finally dispose the whole property on 30/03/ 2025 when the remaining amount of the purchase price is paid. It was argued that the applicant is afraid that the respondents would not honour the agreement as in the instalment of 30/04/ 2024 they were paid TZS 200 million but they opted not to repay the applicant. No reasons have been advanced for failure to repay the instalments as agreed. On balance of probabilities, the respondents admitted the whole debt, the instalments not being paid on time, the land in question being security and the same is sold to another person whereas the payments are to be completed soon before the dates when the parties’ agreement comes to an end; the respondents were paid TZS 200 million already and admitted to have failed to repay the applicant as required. It was the applicant’s submission on that the balance tilts in favour of the applicant for the grant of injunction. This court is enjoined to determine whether the application is fit case to grant a temporary injunction or otherwise. To determine the validity of 11 | P a g e the application, this court has thoroughly considered the available pleadings in terms of chamber summons and affidavit in support of the application, respective counter

affidavit of both respondents, applicable legal principles and oral submissions of the parties. It is important to state at the outset temporary injunction is one of the remedies available to the parties to civil proceedings intended to prevent some action/ omission that is likely to affect the other party. It maintains the status quo of something. The applicant’s affidavit in support of application for temporary injunction is detailed on the matter. In particular, Paragraphs 15 through 22 are the most relevant for this application. For easy of reference, they are hereby quoted in verbatim.

15. That, on 24.01.2024 respondents came up with new conditions of selling price to SUM SEVEN HUNDRED MILLION (Tshs.700, 000,000/=) only instead of FIVE HUNDRED MILLION (Tshs. 500,000,000/=), or to terminate the contract. 12 | P a g e 16. That, I did not comply to the new terms which changed the purchasing price hence we agreed to end up the contract and agreed for the return of the paid amount made by our client (sic!) of TWO HUNDRED ELEVEN HUNDRED SIXTY-SIX MILLION (Tshs. 211,660,000/=) (sic!) 17. That, we agreed the total amount of TWO HUNDRED ELEVEN HUNDRED SIXTY-SIX MILLION (sic!) (Tshs. 211,660,000/=) was to be paid back to me in five installments to begin on 30.04.2024 and ending on 30.04.2025.

18. That, we agreed that in case every installment is unpaid or delayed it shall be would lead charges of 10% interest for each.

19. That, it was agreed under the contract in case the seller dispose the landed property (plot) and school 13 | P a g e (GREEN HARVEST PRE & PRIMARY SCHOOL) to another buyer, they shall refund the buyer ram sum amount of TWO HUNDRED ELEVEN HUNDRED SIXTY-SIX MILLION (Tshs. 211,660,000/=) (sic!) immediately.

20. That, I am aware that since February 2024 the respondents intended to entered in an agreement with KHAN NASSORO CHAROKIWA to sale property (plot) and school (GREEN HARVEST PRE & PRIMARY SCHOOL) within the landed property Plot 238, Block ‘BJ’ Miyuji Proper, Miyuji situated in Dodoma City, with a size of square meters 20510 and Reg. Plan: 130533.

21. That, basing on the above reasons and circumstance, it is in the interest of justice, the Respondents herein be restrained temporarily from disposing, allocating, developing and using the land, landed property and the premises stated herein above pending full determination of 14 | P a g e the CIVIL Case Reference No 20250113000000796 which is before this Honorable Court.

22. That, unless this Applicant for Temporary Injunction be granted by this Honorable Court; otherwise, the Applicant herein stands to suffer irreparable loss as his money herein will be lost by the Respondents herein to the extent of creating many disputes with other persons and an essential evidence of the Case shall be destructed the same. From the averments of the Applicant quoted above, it is lucid there exists a written agreement to repay the applicant his purchase price worth Tanzanian Shillings two hundred eleven million six hundred sixty thousand (211, 660,000/=). The repayment was agreed to be in instalments coming to an end on 30th April 2025. Also, the parties agreed that the whole amount is payable immediately at once in case a new purchaser if found and that applicant is aware that a new purchaser was found since February 2024 but the respondents deliberately decided not to heed to terms of the 15 | P a g e agreement. Further, the respondents are likely to finalise disposition of the suit property if not prevented to the disadvantage of the applicant. It is on record that each of the respondents filed a counter affidavit to resist the grant of temporary injunction. However, both counter affidavits admit the indebtness of the respondent to the applicant in terms of existence of agreement to refund the whole amount as per agreed instalments, that respondents have

not complied with instalment repayments as they have paid only 95,000,000/= (ninety-five million Shillings only) which is not within the agreed schedule, and that respondents got interested buyer who pays in instalments. These admission averments form Paragraph 8, 10 and 11 of the 1st and 2nd respondents respective counter affidavits. It is also on record that both respondents vehemently dispute that there was no clause in the agreement to charge interest at rate of 10% for each delayed installment; that there are no sufficient reasons advanced by the applicant for grant of temporary injunction thus the application is based on speculation and fraudulent intent of the applicant to defraud the 16 | P a g e respondents; that the pending civil suit has nothing to do with the suit property but rather it relates to enforcement of terms of the agreement; that the prayers in the Chamber Summons are frivolous and vexatious and completely abuse of the court process as the applicant lacks locus standi as there is no legitimate claim against the respondent; and that the applicant has failed to show that he shall suffer irreparable loss. Grant of the temporary injunction in this jurisdiction is intended to ensure that rights of the parties are not prejudiced by action of one party who may conduct in a manner that impact the interest of the opponent party in case a judgment and decree is entered in favour of the opponent. The application for temporary injunction is premised on the following provisions, namely section 68(e) and Order XXXVII Rule 1(a) of the Civil Procedure Code, Cap 33 R.E.

2019. Section 68(e) states that: In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf- 17 | P a g e (e) make such other interlocutory orders as may appear to the court to be just and convenient. Also, Order XXXVII Rule 1(a) of the Civil Procedure Code, Cap 33 R.E. 2019 provides that: Where in any suit it is proved by affidavit or otherwise– (a) Where in any suit it is proved by affidavit or that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree; the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders: 18 | P a g e Both the provisions under which the application is premised empower this court to determine and grant temporary injunctions in order to protect the party where the suit property is in danger of being wasted, damages or alienated during the pendency of the suit or that property suffering loss of value by its continued use by the other party. Though Section 68(e) of the CPC

provides for general jurisdiction on interlocutory applications, the latter provision of Order XXXVII Rule 1(a) is specific on temporary injunction when a property is about to be wasted, alienated, disposed or damaged during the pendency of the case. The instant application intends to prevent the respondents from both continuing use of land and preventing them from alienating the land during the pendency of determination of the dispute between them. In the case of Registered Trustees of Social Action Trust Fund & Another vs Messrs Happy Sausages Limited & Others (Civil Appeal 70 of 2002) [2003] TZCA 26 (29 July 2003) (TANZLII), at pages 13-14, the Court of Appeal stated that: 19 | P a g e To this end, we have had occasion to glance through the Indian case of Jagjjt Sinah Khama v Dr Rhakhal Das AIR 1988 Calcutta 95 wherein the Court was construing Order XXXIX rules 1 and 2 and section 94 (c) of the Code of Civil Procedure which is identical to our Order XXXVII rules 1 and 2 and section 68 (c) of the Civil Procedure Code, 1966. The Court had this to say at page 97 – “A temporary injunction may, as it very often does consist of two stages, one granted without finally disposing of the application for, injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to ensure generally till the disposal

of the suit and while the former is generally classed as an interim injunction, the latter is generally called temporary injunction. Neither on principle nor on authority we find any bar to the Courts granting ad interim injunction if subsequent developments or altered circumstances warrant such grant. 20 | P a g e It is not disputed that the respondents did dispose the land to another person in February 2024. That fact is not specifically disputed by the respondents that the land was sold to another person. Indeed, Paragraph 11 of the Counter affidavits admit explicitly that the respondents got the purchaser who pays on instalments. However, the respondents did not attempt to disclose the contents of such new agreement with the third party to justify the truthfulness of instalment payments. What remains vivid before this Court is that despite the respondents having obtained a new purchaser, they willfully neglected to pay heed to the requirements of the agreement they freely entered between the applicant and respondents that once a new purchaser is found the applicant is entitled to fully payment at once and immediately. It is on those circumstances that intervention of this Court is seriously needed to protect the interests of the applicant. The criteria for grant of temporary injunction are well settled in Tanzania. The case of Attilio vs Mbowe (1969) HCD 284, Georges,

CJ illustratively underscored that: 21 | P a g e “It is generally agreed that here are three conditions which must be satisfied before such an injunction can be issued:- (i) there must be serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed; (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 (iii) 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. Having perused the available records, both the affidavit in support of the application and two identical counter affidavits of the 1st and 2nd respondents, it is lucid that there is serious question to be tried between the applicant and the respondents with probability that the applicant shall be entitled to a prayer. Second, it is necessary for this Court to interfere in order to protect the interests of the applicant. This is owing to the fact thatin case no order is granted pending determination of Civil Case No 796/ 22 | P a g e 2025 the respondent shall dispose the whole of the landed property and finalize all processes of the transfer of the suit property to the disadvantages of the applicant. The reason

is simple and straight forward. The Agreement between the parties have stated categorically that the land in question shall act as collateral for two ways, namely: one, if the land is sold to another person the applicant should be paid all his money at once. Two, in case of failure to repay, the applicant is entitled to stop/prevent the disposition of the land in question. These are explicit in Paragraphs 9 and 10 of the Agreement. Third, on balance of probabilities the applicant is the one who will suffer irreparable loss compared to the respondents. This is because if the respondents are allowed to continue utilizing the land and finalise disposition the applicant shall have nothing to rely on to enforce the terms of the contract for repayment of TZS 211, 600,000/=. The parties are not in dispute that the respondents have entered into sale agreement with a third party whereas the property in question whose original purchase price is yet to be repaid to the applicant. The agreement for which the applicant seeks to enforce have provisions regarding the disputed land to be used as a collateral for securing the payment of the 23 | P a g e purchase price that respondents owe the applicant. It further averred in the agreement that once the new purchaser/ third party is found, the applicant is entitled to be repaid in full without any undue delay. It is settled opinion of this court

that the instant application is a fit case to grant temporary injunction. Though the respondents have rivalry argued on the application being frivolous and vexatious, I am not convinced that the application of this nature should be termed as frivolous and vexatious. There is a serious legal issue to be determined between the parties in the pending Civil Suit No 796/ 2025. To illustrate this point, Annexure CB 1 forming part of the counter affidavits is explicit on Paragraphs 7, 8, 9 and 10 of the Agreement dated 24th January 2024 that: 7. KWAMBA, endapo wauzaji watashindwa kurejeshwa fedha hizo kwa Mnunuzi kwa wakati wa kila awamu waliyokubaliana basi Wauzaji watarudisha fedha hizo pamoja na asilimia kumi (10%) kwa kila awamu itakayocheleweshwa ikiwa 24 | P a g e faini au adhabu kwa ajili ya ucheleweshaji wa rejesho husika.

8. KWAMBA, Mkataba huu utakoma tarehe 30/04/2025. Na Kwamba endapo Wauzaji hawatakuwa wamekamilisha kurudisha fedha zote tajwa katika Kipengele cha 6(i) kama ilivyokubaliwa katika mkataba huu basi Mnunuzi atakuwa na haki ya kutumia vyombo vya sheria kudai deni lake.

9. KWAMBA, endapo Wauzaji wataamua kuuza kiwanja husika kwa Mnunuzi mwingine basi ni lazima Wauzaji wamlipe Mnunuzi kwa Mkupuo mmoja fedha zote anazowadai kwa wakati huo bila kukosa.

10. KWAMBA, kiwanja hicho husika kitaendelea kuwa dhamana ya malipo haya na kwamba Mnunuzi ana haki ya kuweka zuio (caveat) kwa kiwanja husika mpaka hapo deni/ marejesho yote yatakapokamilika. 25 | P a g e The contents of this annexure to both counter-affidavits reflect the contents of Paragraphs 16 to 22 of the affidavit in support of the application. In the circumstances, there is a serious legal question to be determined between the parties with possibility of the applicant/ Plaintiff obtaining a remedy. In case the respondent is not prevented there is likelihood that he would part with the property without fulfilling his explicit obligations that parties agreed in respect of repayment of the purchase price. If that is allowed to happen then the applicant is likely to suffer irreparable loss. Indeed, all the criteria in Attilio vs Mbowe case have been satisfied fully by the applicant in this case. The respondents by taking note of the contents of the affidavit in several paragraphs agreed that such averments presented the true state of affairs. Both counter affidavits admitted contents of Paragraphs 16, 17, 19 and 20 of the affidavits relating to the amount that the respondents are indebted, the immediate repayment of the whole amount if the land in 26 | P a g e question is sold to another purchaser, and that the land has been sold to a new purchaser. All these admissions

cement the cause for the applicant for grant of temporary injunction. Indeed, the terms of the agreement fully support the cause for temporary injunction orders to issue. As this court has pointed out in foregoing paragraphs, for a temporary injunction to be granted there must be proof that the property in question is in danger of being wasted, damaged or alienated by party to the suit or suffering loss of value; or the defendant threatens or intends to remove or dispose of the property with view to defraud his creditor. It must be noted at the outset that granting of temporary injunction involves exercise the discretion of the Court where all the important criteria for such exercise must exist. In the case of Ngao Godwin Losero vs Julius Mwarabu (Civil Application No.10 of 2015) [2016] TZCA 2099 (18 October 2016) (TANZLII), at pages 5-6, the Court of Appeal stated that: To begin with, I feel it is instructive to reiterate, as a matter of general principle that whether to grant or refuse an application like the one at hand is entirely in the 27 | P a g e discretion of the Court. But, that discretion is judicial and so it must be exercised according to the rules of reason and justice. It is applicant’s duty to ensure that there is material evidence before the court in substantiation that the property in question is likely to wasted, damaged or alienated, on one hand. On the

other hand, there must be evidence that the defendant intends to remove or threatens to dispose of the property with view to defraud creditors. Proof of these aspects may fit into the exercise of judicial discretion in accordance with the rules of reason and justice. The purpose of the granting of temporary injunction and the criteria for its grant have been articulated in plethora of authorities. In the case of Abdi Ally Salehe vs Asac Care Unit Limited & Others (Civil Revision 3 of 2012) [2013] TZCA 179 (30 July 2013) (TANZLII), at pages 8-9, the Court of Appeal elaborated the criteria for grant of temporary injunction namely: 28 | P a g e The object of this equitable remedy is to preserve the pre- dispute state until the trial or until a named day or further order. In deciding such applications, the court is to see only 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. Once the court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages. There, the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for the worse; that he will suffer damage as a consequence of the

plaintiff's action or omission, provided that the threatened damage is serious, not trivial or minor, illusory, insignificant, or technical only. The risk must be in respect of a future damage. And on the question of balance of convenience, 29 | P a g e what it means is that, before granting or refusing the injunction, the court may have to decide whether the plaintiff will suffer greater injury if the injunction is refused than the defendant will suffer if it is granted (Emphasis added). The controversy between the applicant and the respondent is on existence of the agreement between the parties that allows the respondents to repay the whole purchase sum of TZS 211, 660,000/= on five instalments, with option of lumpsum repayment once if a new purchaser is obtained. There is a clear contest between the parties in relation to the compliance with the terms of the agreement dated 24/01/2024 that stated categorically that land in Plot No 238 Block BJ Miyuji Proper shall be security for repayment of the amount. Thus, a prima facie case exists between the parties. Both affidavit and counter affidavits reveal that the landed property has been sold and disposition shall be completed on 30/03/ 2025 upon the new purchaser paying the remaining purchase price to the respondents herein. The respondents were paid TZS 200 million in February/ March 30 | P a g e 2024 but neglected to discharge

liabilities towards the applicant’s debt. Thus, if the landed property which is the security for repayment is allowed to be disposed, the applicant shall have nothing to rely on for repayment. Further, it appears that on balance of probability it is the applicant who shall suffer more by non-repayment of the amount agreed to be refunded by the respondents. There will be no guarantee at all that respondent will bother to pay anything when the security is disposed. Injunctive reliefs like temporary injunctions are of the nature of prohibition of certain actions or omission that have negative impacts on the outcome of the main case. For instance, in National Housing Corporation vs Peter Kassidi & Others (Civil Application No. 243 of 2016) [2019] TZCA 153 (4 June 2019) (TANZLII), at pages 14-15, the Court of Appeal stated that: It bears reflecting that a temporary injunction is an equitable relief for maintaining the status quo between the parties pending hearing and determination of an action in court. This remedy is in the nature of a prohibitory order 31 | P a g e granted at the discretion of the court against a party. The above aside, we are persuaded by a commentary by the learned authors of Sohoni’s Law of Injunctions (supra) at pp. 737 to 738 to the effect that generally no injunction can be granted to stop a judicial process such as execution of a decree even with the aid

of inherent powers of the Court under section 151 of the Indian Code of Civil Procedure barring very exceptional circumstances. We feel obliged to excerpt the relevant passage from page 738 disclosing the logic in that commentary: “The principle is also well-settled that before an order [of injunction] in exercise of inherent powers is passed, the Court must be satisfied (1) that the applicant has a prima facie case in his favour, (2) that irreparable injury would be caused to the applicant if the order sought by him is not granted during the pendency of the legal proceedings, or (3) 32 | P a g e that the balance of convenience lies in favour of the applicant. In the instant application the main issue is whether the criteria for grant of temporary injunction are met in full. As I have noted that there is clear contest between the parties is whether the respondents complied with terms of the agreement dated 24th January 2024 to refund the whole amount of TZS 211, 660,000/= to the applicant. The fact that the respondents have not disputed existence of the agreement, the amount of debts as well as failure of the respondents to honour terms and conditions of the agreement suffice to hold that a prima facie case exist between the parties with possibilities that applicant shall be entitled to a legal remedy. The second aspect on irreparable loss, there is no flicker of doubts that

the applicant shall suffer irreparable loss if the temporary injunction is denied. One, the respondents have failed to comply with terms of the agreement on instalments repayment as until the institution of the application the was in default of almost three instalments out of five instalments as per available records save for some payment done after the 33 | P a g e institution of this application. Two, the respondents sold the land to another person and they were paid TZS 200 million which could have discharged almost ninety five percent of the applicant’s purchase price but willingly neglected to pay. Three, the agreement between the respondents and new purchaser comes to an end on 30th March 2025 which is one month before that of the applicant and respondents. The effect is simple that respondents shall completely dispose the property which is a security by parting with possession and ownership in favour of the third party prior to coming to an end of the contractual arrangement between themselves and applicant. This is a clear intention to defraud the applicant as he shall have nothing to rely to enforce the agreement willingly entered into between himself and the respondents. On the third aspect, circumstances obtained in the pleadings in form of affidavit and counter affidavit as well as oral submissions of the parties it is the applicant who is likely to suffer more than

the respondents if temporary injunction is not granted. One, this court by refusing issuing temporary injunction will have facilitated the respondents blatant breach of 34 | P a g e the terms of the agreement willing entered between them and the applicant on 24th January 2024. Two, the applicant shall have nothing to rely on even if the court adjudge in his favour in the pending Civil Suit No 796 of 2025. Furthermore, the provisions of Paragraphs 8, 9 and 10 of the Agreement between the parties which is annexure to counter affidavits envisaged categorically possibilities of injunctive reliefs on party of the applicant in case of default by the respondents. There are no justifiable reasons therefore for this Court not to grant injunctive orders against the respondents in circumstances that otherwise are suggestive of the clear disregard of the terms of the agreement freely entered by the parties. This court is invited to determine on balance of probabilities between protecting the person whose contractual rights have been violated and continuing to be violated by respondents who intend to dispose the landed property Plot No 238 Block BJ Miyuji Proper which is the security of repayment on one hand or deny the grant of injunction in favour of the 35 | P a g e respondents who explicit have breached the terms of the agreement thus admitting lucidly in the counter affidavits as well

as in oral submissions. It is without any doubt that a court of justice in the circumstances shall uphold the interest of the person who appears to be in the loosing end. That person in the circumstances of this application is the applicant. In fact, respondents intend to defraud the applicant by disposing the landed Plot No. 238 Block BJ Miyuji Proper in order to circumvent the obligation to repay the applicant. If the respondents are allowed to continue using the land and finalising disposition of the same freely this court will be countenancing blantant breach of contractual obligations between the parties. This Court is fully guided by the principle in Robert Scheltens vs Sudesh Kumari Varma & Others (Civil Appeal 203 of 2019) [2022] TZCA 508 (16 August 2022), at pages 36-37, the Court of Appeal stated that: The principle of law enacted in the above provision is also called the Doctrine of Sanctity of Contract. That principle is 36 | P a g e the central axis from which all lawful contracts obtain the force of law. Courts in this country, by all means have to protect, cherish and preserve the doctrine of Sanctity of Contract by uncompromisingly compelling and coercing, its obedience, otherwise contracts in this jurisdiction would cease to have any legal worth. An eventuality which, courts and the legal system cannot take lightly for it would be placing the economy at a brink of failure. Compliance with the canon (sanctity of contract) has been authoritatively restated in many decisions of this Court including in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R. 288 and Philipo Joseph Lukonde v. Faraji Ally Said [2020] 1 T.L.R.

556. Sealing the supremacy of the doctrine under consideration, in Philipo Joseph Lukonde's case, (supra) at page 557, this Court stated that: "Once parties have entered into a contract, they must honour their obligations under that contract. 37 | P a g e Neither this Court, nor any other court in Tanzania for that matter, should allow deliberate breach of the sanctity of contract.” This principle enunciated by the Court of Appeal of Tanzania is binding on this court. Granting an injunction in this application is the reflection of ensuring that essence of the principles is implemented by the courts. I am not prepared to violate the well-established principle of law in favour of a person who does not pay heed to explicit terms of the agreement to which he willingly agreed thereto. The agreement between the parties is lucid on what the parties should do in case of failure to honour promises between the parties and one of those aspects is seeking for injunctive reliefs as articulate in Paragraph 10 of the Agreement. This court is empowered to grant temporary injunction pending the hearing and final determination of the Civil Case No 796 of 2025. 38 | P a g e As the respondents have admitted several facts which form basis for issuance of temporary injunction, I am satisfied that they are bound by their admission. In the case Equity Bank Tanzania Limited vs Ndume Ng'okorome Maswale

T/A Ndume General Supply (Civil Appeal No. 443 of 2022) [2024] TZCA 1268 (12 December 2024) (TANZLII), at page 11-12, the Court stated that: By simply taking note as she did, the appellant, in law, is taken to have admitted the contents of paragraph 7 and 8 of the plaint. We are therefore entitled to hold that it was not disputed that the parties entered into the loan agreement (exhibit P2) on those terms. Having admitted the indebtedness and the fact the repayment of 95,000,000/= which is not in accordance with the agreed repayment schedules, the respondents cannot be heard that the applicant’s application for temporary injunctions is not meritorious. 39 | P a g e In case the respondents are not restrained from using the land and or disposing the land in question, the likelihood that even if the applicant obtains judgment and decree in the Civil Case No 976 of 2025, the decree holder shall end up with empty decision as the respondents shall have parted with the land in question. It is settled view of this Court that the available records both the contents of affidavit and counter affidavits reveal that applicant is well entitled to the prayers of temporary injunction. At this juncture, I am convinced that the applicant’s application for temporary injunctions has merits and I shall proceed to grant. In those premises, the respondents, their employees or agents or any other

person acting under their instructions are hereby restrained from using the land in any manner from today until final determination of the Civil Case No. 796 of 2025 pending before this court. Simply, no activity or entry on Plot No Plot 238, Block ‘BJ’ Miyuji Proper, Miyuji situated in Dodoma City, with a size of square meters 20510 and Reg. Plan: 130533 comprising both land and a school called Green Harvest Pre and Primary 40 | P a g e School is permitted until the final determination of the pending suit. Consequently, the respondents Mr. Bakari Mfaume Kambi and Columba Bakari Kambi are hereby prevented from any actions that is intended to finalize the disposition of the land in question by way of sale, transfer of the right of occupancy or otherwise until final determination of the Civil Case No 796 of 2025. The applicant is entitled to the costs of this application. It is so ordered. DATED at DODOMA on this 27th day of March 2025. E.E. LONGOPA

JUDGE 27/03/2025. 41 | P a g e