D

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 169 OF 2023 (Arising from Commercial Case No. 180 o f 2017) D.B. SHARPRIYA & CO. LIMITED....................................1s t APPLICANT MINESTONE LIMITED................................................. ...2 n d APPLICANT DYNAMIC MOTORS LIMITED......................................... 3 r d APPLICANT KISHOR DHANJI SHARPRIYA......................................... 4 t h APPLICANT AMISHI SHARPRIYA.......................................................5t h APPLICANT VERSUS BARCLAYS BANK (T) LIMITED................................... 1s t RESPONDENT ABDALLAH MAKATTA T/A SENSITIVE AUCTION MART & BROKERS........... 2 n d RESPONDENT OPTATUS CHRISSANTU NDONDE............................. 3 r d RESPONDENT KAMAKA CO. LIMITED............................................... 4 t h RESPONDENT RULING Date o f last order: 15/02/2024 Date o f ruling: 23/02/2024 AGATHO, J.: The matter today was set for ruling in respect of the applicants' oral application for maintenance of status quo ante between the parties as it were before the 2nd and 4 th respondents evicted the applicants from the suit i premises (sold property) pending determination of this application. The question is whether such an order should be granted. For a grant of the order of maintenance of status quo ante the court considers whether there is a pending suit or application, and whether there are acts that are likely to prevent or pre-empt the court from determining the rights of the parties in so far as the pending application is concerned. Mr. Masumbuko for the applicants submitted that there are new developments that aim at making this application futile. He pointed fingers at the 2nd and 4th respondents. Arguing that the two have written several letters to the court requesting an eviction order of the 1st applicant. But the court did not issue any order. The court directed them to file a formal application to request for an eviction order. At this Court: we ask whether 2nd and 4th respondents attempt to seek eviction order means the court's assistance has been invoked in the execution of the decree? Reading Order XXI Rule 9 of the CPC [Cap 33 R.E. 2019] and looking at the CAT decisions in Balozi A b u bakari Ibrahim and A n o th e r v M S B en an d ys Lim ited and 2 O thers, Civil Revision No. 6 o f 2015 C A T at page 31 and Shell and B.P. Tanzania Lim ited v U niversity o f D ar es salaam [2002] T.L.R. 225 at pages 232 - 233 it is apparent that a decree holder is not 2 required to invoke the assistance of the court to satisfy the decree in his favour if he can manage to do so peaceably. It means that the decree holder will invoke the court's assistance if the judgment debtor(s) do not comply with the decree. In the case at hand there is a clear attempt by the 2nd and 4th respondents (part of decree holders) to involve the court. It implies that they sensed that they could not do so peaceably. In Balozi Abubakari's case at page 31 the CAT made it clear th a t" where a decree-holder opts to seek the court's assistance, then the law m ust be strictly be complied with, b y a llin the entire process." But is mere writing of letters to the court means the court was involved? In my view at least there is an indication that the court assistance was required. That's why they wrote those letters to the court. Back to the submissions of the parties, Mr. Masumbuko submitted that it was shocking that on 08/02/2024 the 1st applicant was evicted from the disputed premises by the 2nd and 4th respondents while knowing that there is pending application and without eviction order. He added that his clients' businesses are at the verge of being paralyzed as they cannot access the premises. And they are still in need of accessing the premises, all their business equipment, and furniture have been ceased and some destroyed. 3 He went further arguing that they are seeking the order for maintenance of status quo ante because his clients want to access the premises and also there is pending application. They are applying for status quo prior to forceful eviction be maintained until the determination of the present application. He argued further that there is no prejudice to the 4th respondent because they had knowledge of the present application since 08/01/2024 when they served upon with the application. Mr. Juma for the 4th respondent disputed the prayer for the status quo ante. It was his argument that the counsel for the applicants has not stated under which law or authority he fronted the prayer for the maintenance of status quo ante. In Mr. Juma's view the counsel for the applicant ought to have supported his application with authority to convince this court to grant such prayer. He believed that in the absence of any authority, the court cannot grant the requested prayer. Mr. Juma was concerned that the present application being for setting aside the sale, the counsel for the applicants was aware that the applicants were at the verge of being evicted from the premises. He thus suggested that since they were aware and to prevent the eviction, the applicants' counsel ought to have applied for temporary injunction to prevent the 4th 4 respondent from evicting the applicants pending the determination of the present matter. Mr. Juma was of the view that since there was not any application for temporary injunction before this court, the 4th respondent was not restrained from evicting the applicants. That is due to the fact that the 4th respondent as bonafide purchaser who has been transferred ownership of the premises, granting the prayer sought by the applicants will prejudice the 4th respondent. And granting it will otherwise means determining the merit of this application which is yet to be determined. Lastly, Mr. Juma brought to the attention of the court that the 1st applicant, on the 7th February 2024 wrote a commitment letter to the 4th respondent committing herself to vacate the premises peacefully without resistance. On this he showed the court a copy of the letter purporting to have been written by the 1st applicant. Mr. Juma in the end asked the court to decline the prayer for maintenance of status quo. Mr. Masumbuko for the applicants rejoined on the question of not citing any law by arguing that they have cited Section 95 of the CPC in the chamber application. According to him maintenance of status quo is part of inherent powers of the court. He added that they have cited in chamber application 5 that the court be pleased to grant orders stated therein and any other that the court will deem fit to grant. The applicants reminded the court that the counsel for the 4th respondent has not responded to the issue that they have not sought eviction order. It implies that he has admitted that. Mr. Masumbuko submitted in line with Balozi Abubakari Ibrahim's case that if matters are done through the court such eviction for sake of attachment of property in execution of decree, then that eviction has to be done through the court. One cannot do it through private eviction. As for the question of applying for an injunction order, Mr. Masumbuko was of the view that that is applied for when there is a pending case/suit. And there is not a pending suit here. On this I am in accord with the counsel for the applicants. Turning to the counsel for the 4th respondent submission that his client is a Bonafide purchaser, Mr. Masumbuko wondered who declared the 4th respondent to be the bonafide purchaser. He suggested that that is why they have the present matter to challenge that. Indeed, in the court's view the question of the 4th respondent being the bonafide purchaser is yet to be determined. 6 Regarding the letter which is said to have been written by the applicants, the counsel for the applicants rejoined that, the author of the letter Amish Ladwa (Accountant) is unknown to the applicants. Mr. Masumbuko suggested that maybe he was put under duress. He added that Mr. Amish Ladwa is not a director. This in the court's view suggests that Mr. Amish Ladwa may be known to the applicants, though that has not been confirmed. But then again, they disowned that letter. Mr. Masumbuko concluded his rejoinder by stressing on the prayer for maintenance of status quo ante and he also cited the case of Mek one General Tanzania Ltd v Vivo Energy Tanzania Limited, Mi sc. Commercial Application No. 76 of 2023, HCCD (ruling dated 04th August 2023). In my analysis, I will begin with the last cited case (Mek One General Tanzania Ltd). This case dealt with the application for order of maintenance of status quo ante and application for temporary injunction as there was a pending suit. Much as that case may be relevant it is somewhat distinguished from the case at hand because there is no pending suit in the present case. Looking at this application for maintenance of status quo ante, there are points that are not disputed, one, the 4th respondent attempted to involve the court in the eviction process of the applicants. This means the decisions 7 of Balozi Abubakari Ibrahim's case and that of Shell and B.P. Tanzania Limited's case apply to the case at hand. The 4th respondent has not disputed the fact that they sought court order for eviction of the applicants. It is clear that the court was yet to grant that order. Two, the eviction done by the 4th applicant was done while the application at hand was still pending in court. That implies that the eviction is likely to turn the application nugatory. These two points are enough to warrant the court exercise its powers under provisions of Section 95 of the CPC to grant the order for maintenance of status quo ante. The section provides as follows: Nothing in this Code shall be deemed to lim it o r otherwise affect the inherent powers o f the court to make such orders as m ay be necessary for the ends o f justice o r to prevent abuse o f the process o f the court. I find no merit in the 4th respondent's counsel submission that the applicants ought to have applied for temporary injunction. As I have stated herein above and considering Mek One's case, temporary injunction is applied for where there is a pending suit. Quite to the contrary, here we have a pending application. Therefore, an application for the order of maintenance of status quo suffices. I have also not been impressed with the 8 argument that the 1st applicant wrote a letter to the 4th respondent committing herself to give vacant possession of the property. The purported letter has been disowned and indeed it was not signed by the 1st applicant's director, it is equally unclear if the author is a company secretary of the 1st applicant. For the reasons stated herein in above that the 4th respondent applied for court eviction order and it was yet to be granted, and since she was aware of the pendency of the application at hand, and by virtue of the CAT decisions in Balozi Abubakari Ibrahim, and Shell and B. P. Tanzania Limited that once court assistance is sought in the eviction/execution process then it must be strictly complied by all in the entire process. One cannot go for private eviction. I find substance in the applicants' prayer for maintenance of status quo ante. I thus proceed to grant it. The status quo ante shall be active until determination of the pending application. The court thus orders that the order for maintenance of status quo ante is granted. Order accordingly. 9 DATED at DAR ES SALAAM this 23th Day of February 2024. Date: 23/02/2024 Coram: Hon. U. J. Agatho, J For the Applicants: Roman Masumbuko, and Salma Abdallah, Advocates For the 1st Respondent: Absent For the 2nd & 3rd Respondents: Absent For the 4th Respondent: Bakari Juma, Advocate BC: Mustafa Court: Ruling delivered today, this 23th February 2024 in the presence of Roman Masumbuko, and Salma Abdallah, counsel for the Applicants, and Bakari Juma, the 4th Respondent's Counsel. //X 7 ex \*5 u Sj / a g a t ho IS/ JUDGE y/ 23/02/2024 ' io