MISC LAND APPLICATION NO 17795 OF 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 17795 OF 2024 (Arising from Land Case No. 17602 of2024) DHAHARANI RAJABU KYAZE............................................................ APPLICANT

VERSUS MKOMBOZI COMMERCIAL BANK PLC................................... 1st RESPONDENT GIBORE GWESO NYAMBEGA.................................................. 2nd RESPONDENT KISAONI GENERAL AUCTION TANZANIA LTD........................ 3rd RESPONDENT ZIHIJA SELEMANI MUHEMA.................................................. 4th RESPONDENT

RULING 05/9/2024 & 19/9/2024 A. MSAFIRI, J. This is the ruling on the Application brought under Order XXXVII Rule 1(a) and Section 68 (e), all of the Civil Procedure Code, Cap 33 R.E 2019, (herein the CPC). The applicant is praying for the court to issue a temporary injunction against the respondents to restrain them from doing any act or activity on the suit premises described as C.T No. 186282/82, located on Plot No. 746, Block D, Sinza area, Dar es Salaam, pending the determination of the Land Case No. 17602 of 2024. The Application has been taken at the instance of Supremo Law Attorneys and is supported by an affidavit affirmed by Dhaharani Rajabu Kyaze, the applicant^ i The Application was contested by the 1st respondent and 2nd respondent who filed their counter affidavits. The counter affidavit by the 1st respondent was deponed by one Benedicto Maziku, an employee of the 1st respondent in the position of Recovery Manager while the 2nd respondent deponed his counter affidavit. The 3rd respondent was exparte and the 4th respondent did not contest the application. The brief background according to the affidavit and counter affidavits is that the applicant claim to be the lawful owner of the suit property which is one among other landed properties which were mortgaged to secure a credit facility advanced to the 4th respondent by the 1st respondent. That sometime in the year

2014 upon the request by the 4th respondent, the applicant created a legal mortgage over the said suit property as a security in favour of the 4th respondent to secure a loan of TZS 650,000,000/= from the 1st respondent. That the applicant has never received any notice from the 1st respondent until on 24/6/2024 when he received letter from the 3rd respondent alleging to act under instructions of the 2nd respondent demanding vacant possession of the suit property. The applicant claims that the suit property was unlawfully sold in a public auction allegedly conducted on 15/01/2021. Following that, the applicant instituted the suit against the respondents which is pending in this court and have also filed the current application seeking for injunction orders. /I I 2 The hearing of the application was by way of written submissions and the applicant's submission in chief and rejoinder was drawn and filed by Mr. Hamisi Katundu, learned advocate and the 1st respondent's reply submission was drawn and filed by Ms. Kulwa Shilemba, learned advocate while the reply submissions by the 2nd defendant was drawn and filed by Mr. Makaki, learned advocate. I have gone through the submissions by all the parties through their counsels and I commend them for the well-presented submissions with authorities which I have well considered in determination of this Ruling but I have no intention

of reproducing everything that was submitted. The counsels for the parties have all agreed on the mandatory conditions which have to be complied with by the applicant seeking for temporary injunction in order for the court to exercise its discretion and grant the sought order. They agree on the principle set in the case of Attilio vs Mbowe (1969) HCD 284 where the three conditions were set which govern the court in grant of injunction. It is trite law as agreed by the parties to the suit through their advocates that the Court's power to grant injunction is predicated upon the applicant meeting, cumulatively, all the three conditions set out in the celebrated case of Atilio vs Mbowe (supra). The three conditions as pointed out by the counsels are briefly that first, there must be a prima facie case/serious issue to be tried, second, that the court interference is necessary to prevent irreparable injury befalling the applicant and 3 AiL third, the applicant have to establish that he will suffer more mischief than the respondent if the sought injunction will not be granted. My major task now is to determine whether this application is meritorious i.e. whether the applicant has met cumulatively all three mandatory conditions as pointed out herein above. On the first condition; in the affidavit supporting the application, the applicant claims to be the owner of the suit property. He

admitted to secure the suit property in favour of the 4th defendant for the loan advanced to him by the 1st respondent. He claims that the suit property comprise of two block houses but during the creation of mortgage, only one house was valued and the auction was done on the said house to the exclusion of the other block but the 2nd respondent unjustifiably intends to occupy both houses. Furthermore, the applicant through his advocate had stated that the sale of the suit property was done with an intention to defraud without adhering to the procedures laid down by the law. At the same time, the 2nd applicant in his counter affidavit disputed the ownership of the applicant and claim to be the owner of the suit property. That following the default on loan repayment, the suit property was sold in public auction and purchased by the 2nd respondent and the transfer of ownership was carried and finalized and now he is the registered owner of the suit property. The 1st defendant contended that following the default on loan repayments and M- the applicant being one of the mortgagors, he was served with the 60 days' notice and later the property was sold in a public auction and all the legal procedures were adhered to. From these submissions and arguments by the parties, I have gathered that there is serious issues to be determined by this court. The issues are on the illegality or

otherwise of the sale of the suit property by public auction and the ownership of the suit property between the applicant and the 2nd respondent who claims to have purchased the suit property in the public auction. I find that the applicant have established the first condition. On the second condition; in the affidavit supporting the application at paragraph 12, the applicant states that in the event the applicant will be evicted from the suit property, he will suffer irreparable loss as he will not be able to return to the properties, he will be denied rents and thus his livelihood. He added more that given the circumstances of the case, it is in the balance of probability that the applicant is the one who stands to suffer more than the respondents if the application will not be granted. This was also reiterated in the submissions by the counsel for the applicant who added that the suit land is comprised of two big houses. That during the creation of mortgage, only one house was valued hence the counsel was of the view that the property has been sold at a throw away price without adhering to the legal procedures. It was submitted further that in the event the applicant is evicted from the suit land, he will suffer irreparable loss m6- 5 and will not be able to recover the same. In the case of Abdi Ally Salehe vs. Asac Care Unit Limited & 2 Others, Civil Revision No. 3 of 2012,

(CAT-DSM), (Unreported) at page 8, it was held that: "Once the court finds that there is a prima facie case, it shoeid then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages". I have considered the submissions by the applicant both in his affidavit and in court by his counsel and I am not convinced that the claimed sufferance is not capable of being atoned in monetary terms. Looking at the claims by the applicant that he will be denied rents and he will lose the other house which was not valued during creation of mortgage, I am of the view that the said expected loss are all capable of being atoned by way of damages by the respondents in the wake of the applicant being successful in his claims in the main suit. In the second condition it is the principle that the court has to look at the injury which is one of irreparable loss which cannot be monetary compensated. However in the instant matter, the issue of loss of rent is reparable by way of money. Also the issue of the selling of the suit property at a throw away price, the issue of possibility of losing the other house which was not valued, all these does not fall within the parameters of irreparable loss. I find that the applicant has failed to meet the second condition. JM L, 6 On the third condition on balance of convenience, the counsel for the

applicant said that the applicant stands to suffer more as he is 82 years old and his livelihood depends on rent collection. I have already found that the injuries which the applicant claims to suffer are capable of being atoned. Therefore, it is my finding that the applicant is not in the position of suffering more than the other parties as the rents which he claims are reparable. It is for the above reasons that I find that the applicant have failed to establish the two conditions and since the three mandatory conditions has to be met cumulatively, this application cannot succeed and is hereby dismissed with costs. 7