doreen alphonce mchawa vs attorney general 6 others 2024 tzhclandd 7 10 january 2024

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO.448 OF 2023

DOREEN ALPHONCE MCHAWA APPLICANT

VERSUS THE ATTORNEY GENERAL 1®^ RESPONDENT COMMISIONER FOR LANDS 2"" RESPONDENT THE REGISRAR OF TITLES 3"" RESPONDENT MOHAMED ABILLAH MKAN3E 4^" RESPONDENT EQUITY BANK TANZANIA LIMITED 5™ RESPONDENT LEONIA PAULO LENGWANA 6™ RESPONDENT MBUZAX AUCTION MART COMPANY LIMITED 7™ RESPONDENT Date ofLast Order:20/12/2023 Date ofRuling; 10/01/2024

RULING I. ARUFANI,J. The applicant fllled the present application in this court under Order XXXVII Ruie 1 (a) and (b) together with sections 68 (e) and section 95 of the Civil Procedure Code Cap 33 [R.E 2019]. The applicant is praying for an < inter parte interim order of injunction to restrain the fifth and seventh respondents,their servants, workmen,agents and or whoever acting on their behalf from continuing with process of auctioning the suit premises pending hearing and determination of the main suit pending in this court. The application is supported by an affidavit sworn by the applicant and is opposed by counter affidavits of the first, second and third respondents sworn by Adeifrida Camilus Lekuie being the second respondent's Land Officer, the counter affidavit of Mgisha Mboneko being the principal officer of the fifth respondent and the counter affidavit of Michael Mbuza being the principal officer of the seventh respondent. While the applicant was represented in the matter by Mr. Yesse Mtungi Rugaiya and Mr. Andrew Miraa, learned advocates,the first, second and third respondents were represented by Mr. Francis Wisdom, learned State Attorney. Fifth and seventh respondents enjoyed the service of Mr. Caster Gerald Lufunguio, learned advocate. The application was not objected by the fourth respondent and hearing of the application proceeded ex-parte against the sixth

respondent. Hearing of the application proceeded by way of written submissions. In support of the application, the counsel for the applicant submitted that, the court has set three conditions upon which the application for temporary injunction can be granted and referred the court to the case of Suryakant D. Ramji V. Savings and Finance Limited,[2002] TLR 12 where the conditions for granting temporary injunction were stated. He argued that, the first condition requires existence of serious triable issue between the parties. He stated that, in determine there is a prima facie case in a suit the court is required to look into the pleadings filed in the court by the parties. He went on arguing that, paragraphs two, three and five of the affidavit of the applicant avers the applicant is the lawfully owner of the suit premises as per the sale agreement dated 4^^ June, 2004, electricity tax invoice and DAWASA Bills. He went on arguing that, the stated paragraphs state the fourth respondent who is the applicant's co-parent fraudulently procured the certificate of title over the suit premises. He stated thereafter the fourth respondent created a mortgage in favor of the fifth respondent to secure the loan issued to the sixth respondent. He argued that, for this court to determine whether the suit premises was fraudulently procured for the purpose of determine the issue of ownership of

the suit property, the court is required to receive evidence from the applicant and the fourth respondent. He submitted that, the affidavit sworn by Mzee Mwaiseje attached to the joint written statement of the first, second and third respondents to show he was the owner and seller of the suit premises to the fourth respondent is 3 a fabricated document. He stated existence of the stated facts clearly established there is a serious issue to be tried by the court because as all parties were present, they could have made another sale agreement and not to use an affidavit or a loss report to prove the alleged fact. He referred the court to the case of Fantuzzi Investment Ltd V. Mwananchi Engineering and Construction Company Ltd, Misc. Land Application No. 138 of 2022, HC Land Division at DSM (unreported) and stated that, by looking into the pleadings filed In the court by both sides, it shows there are serious issues needs to be determined by the court which make the first test of the condition for grant an order of temporary injunction to be granted to be answered in affirmative. He argued in relation to the second condition of a looming danger of irreparable injury to be suffered by the applicant that, if the fifth respondent will continue with her intention of auctioning the suit property the applicant will suffer Irreparable loss as she will lose the suit property which is the

only shelter that she has for her own and her children and the only place which they can call their home. He argued the applicant stated in her affidavit that, she didn't consent to the entire process of placing the suit property as a security for the loan given to the sixth respondent by the fifth respondent. He submitted that the above stated facts show the applicant is in danger of 4 suffering Irreparable loss if the fifth respondent will continue to auction the suit property before determination of the suit pending in the court. As for the third condition of whether the applicant should suffer more injury than the respondents if the order the applicant is seeking from the court is not granted the counsel for the applicant stated that, paragraph 12 of the affidavit of the applicant states the suit property is the only property which provides shelter for the applicant and her children. He argued that, the first, second and third respondents will not suffer any injury because they have no interest on the suit property. He argued the fourth defendant will also not suffer any injury as he does not depend on the suit property as his dwelling house. He went on arguing that, the fifth respondent will not suffer more injury than the applicant because still the fifth respondent has an opportunity of recovering her loan and the interest from the sixth respondent. He stated the sixth

respondent shall not suffer more injury than the applicant because she has a responsibility of repaying the loan, she obtained from the fifth respondent. He argued further that, the seventh respondent shall not suffer anything compare to the applicant because she has no interest in the suit property and she has nothing to lose if the order will be granted. He concluded his submission by stating that the applicant has established all three conditions for an order of temporary injunction to be granted and prayed the application be granted. He referred the court to the case of Kibo Match Group Vs. H-S Impex Ltd,(2001) TLR 152 where it was held if the order of temporary injunction will not be granted the final decision will be rendered nugatory. In his response the counsel for the first, second and third respondents stated that, granting temporary injunction is at the discretion of the court, the discretion which is required to be exercised judiciously. He stated for the court to exercise its discretion, the applicant is duty bound to establish and prove all the three conditions for granting temporary injunction cumulatively. He submitted the present application is not merited with all three conditions for grant of temporary injunction. He referred the court to the case of Atilio V. Mbowe, (1969) HCD 284 where the three principles for granting temporary injunction were

established. He started with the second principle which states the applicant is required to show he or she will suffer irreparable loss which cannot adequately be remedied or atoned by way of damages. He stated for the stated principle or condition to be met the applicant is expected to described the particulars of the alleged irreparable loss to convince the court to 6 exercise its discretion to grant the order of temporary injunction in favor of the appiicant. He stated the appiicant has not stated in her affidavit if the respondents are not able to compensate her monetarily. He supported his argument with the case of Gwabo Mwansasu & Ten Other V. Tanzania National Roads Agency, Misc. Land Appiication No. 72 of 2020 where the court refused to grant an order of temporary injunction after finding the stated Second principie for granting temporary injunction had not been estabiished. He stated that, by looking at the paragraphs of the affidavit there are no particuiars of irreparabie iossfor the court to exercise its discretion. He stated the proviso to Order XIX Ruie 3(1) of the Civil Procedure Code, Cap 33 R.E 2019 allows statements of belief to be stated in an affidavit of an interlocutory application provided the ground of the stated beiief is disclosed. He referred the court to the case of Patrick P. Chale V. Commercial Bank of Africa, Misc. Civil Application No. 635 of

2017, HC at DSM (unreported) where the court refused to grant an order of temporary injunction after seeing the particulars of irreparable loss had not been given for the court to exercise its discretion in the applicant's favor. He argued that, aithough the appiicant averred at paragraph 12 of the affidavit that the suit premises is a dweiiing house but that alone does not suffice to be taken 7 as particularization of the loss the applicant will suffer because there is nothing in particular stated in the affidavit for the court to gauge merit on the same. He argued what is stated in the affidavit is in generality whiie the iaw requires particulars of the facts of irreparable loss to be given to enabie the court to act on it. He cited in his submission the case of Starcom Consumer Health Care Ltd & Another V. Diamond Trust Bank & Three Others, Misc. Land Application No. 08 of 2023, HC at Morogoro where the court refused to grant an order of temporary injunction after finding there is no facts pieaded for irreparabie loss with its particuiarization. He argued that, aithough the appiicant submitted that paragraphs 10, 11,12 and 13 of the affidavit shows the suit premises is in danger of being disposed of and so there wili be irreparable loss but that submission is misplaced because disposition itself without particuiars of irreparable loss is not sufficient ground for granting

the order of temporary injunction. He stated that, as there are no particulars of the Irreparable loss to be suffered the court cannot speculate the applicant will suffer irreparable injury or not. He referred the court to the case of Said Sultan Ngalema V. Isack Boaz Ng'iwanfsh! & Four Others, Civii Appiication No. 362/17 of 2021, CAT at DSM (unreported) to support his submission. 8 He furthermore cited in his submission the case of Mwakeye Investment Ltd V. Access Bank Tanzania Limited, Misc. Land Appiication No. 654 of 2016 HC at DSM (unreported) and stated its facts are similar to the facts of the application at hand where the court stated loss resulted from sale and transfer of the property to the third party and eviction is not irreparable loss because it can be compensated by monetary terms. He based on the above submissions and the cited authorities to submit the applicant has not meet the second condition for being granted the order of temporary injunction is seeking from the court. He argued in relation to the third condition for the order of temporary injunction to be granted which is balance of convenience to be suffered by the applicant if the order of temporary injunction will not be granted compared to the respondents if the temporary injunction will be granted that, the same has not been met in the present appiication. He argued that, the submissions in support

of the stated condition from the applicant are statements from the bar containing averments of how the respondents will not suffer while the stated averments are not deposed in the affidavit. He argued that, the applicant's affidavit contain averments of what was done by the respondents and stated the court has held several times that the statements from the bar are not evidence and the same cannot be 9 acted upon by the court and supported his argument with the case of Said Sultan Ngaiema (supra). He submitted the applicant has failed to show facts to persuade the court to believe that on balance of convenience, she is likely to suffer more and that makes the application to be devoid of merit. He submitted that, the fifth respondent against whom the order of temporary injunction is sought has demonstrated at paragraph 9 and 10 of her counter affidavit how they will be inconvenienced if the order of temporary injunction will be granted. He submitted further that the applicant's submissions on the third condition for grant of an order of temporary injunction are baseless and have no merit and prayed the court to find the applicant is not entitled to an order of temporary injunction. He argued in relation to the first condition for granting the order of temporary injunction which requires establishment of a prima facie case or serious question to be tried by the court that, the

stated condition has not been met because the applicant does not have any probability of being entitled to the reliefs is seeking from the court. He submitted that is because the applicant is not the owner of the suit premises as the same is owned by the fourth respondent whose certificate of occupancy is attached to the counter affidavit of the first, second and third respondents as annexure OSG- 10 1. He submitted that is also revealed at paragraph 4 of the counter affidavit of the first, second and third respondents. On his side the counsel for the fifth and seventh respondents gave a brief background of the matter and stated the applicant has miserably failed to give sufficient materials for the court to grant the order the applicant is seeking in the chamber application. He stated the orders of temporary injunction are equitable grounds for the court to intervene by way of injunction. He stated the affidavit is tainted with untruth hence it is unreliable. He stated before the applicant filed the suit pending in this court, she filed in the court Land Case No. 44 of 2022 which was withdrawn on 3'"^ May, 2023 with leave to refile. He argued the applicant stated in the mentioned Land Case that she was in relation with the fourth respondent and they have been living together in the suit premises for not less than five years and blessed with three issues. He stated the

applicant has stated at paragraph 4 of the present application that during their relationship they were living separately as the applicant was living at Tabata before moving to the suit premises. He cited in his submission the case of Ignazio Messina V. Willow Investment, Civil Application No. 21 of 2001 cited with approval in the case 11 of Jaliya Felix Rutaihwa V. Kalokora Bwesha & Others, Civil Application No. 392/01 of 2020 CAT at DSM (unreported) where It was stated affidavit tainted with untruth is not an affidavit at ail and cannot be relied upon to support an application. He invited the court to desist to act on the affidavit of the applicant on ground that it contains substantial untruth. Submitting on merit of the application he stated that, for the court to exercise its discretion in favor of granting the order of temporary injunction the applicant is required satisfy the three conditions laid down in the famous case of Atilio V- Mbowe (supra). He argued the stated three conditions for granting the order of temporary injunction must not exist in isolation but conjunctively and supported his argument with the case of Jane Samsoni Kuja V. Samsoni Mtawala Kuja, Misc. Land Application No. 585 of 2015 where the court stated the conditions must exist conjunctively and not separately. He started with the first condition of triable issue and the probability of the applicant

to succeed and stated that, the suit property is owned and registered under the name of the fourth respondent. He stated the suit property was pledged as security for the loan advanced to the sixth respondent and the sixth respondent defaulted to repay the loan extended to her. She stated the applicant contention that she is the owner of the suit 12 property is blatantly He and cannot be relied upon by the court to grant the application. He referred the court to the cases of Tanzania National Roads Agency & Another V. Abdaliah Megabe Sindoma, Civil Appeal No. 307 of 2021, CAT at Musoma (unreported) where It was stated when two people have competing Interest on landed property, the person with certificate thereof will always be taken to be lawful owner unless It Is proved that the certificate was not lawfully obtained. He submitted that, as the certificate of title Is In the name of the fourth respondent and It has not been proved It was unlawfully obtained there Is triable Issue and the applicant has no probability of success. He referred the court to the case of Victoria Water Company Limited & Another V. Equity Bank Tanzania Limited & Another, Misc. Civil Application No. 635 of 2018 HC at DSM where It was stated that, absence of a serious triable Issue negates the Importance of granting Interim Injunction. He submitted that, as the first condition for the order of temporary

Injunction to be granted has not been met by the applicant, the application be dismissed In Its entirety with costs. 13 He argued in relation to the second condition of irreparable loss that, claims of the applicant that she is the owner of the suit property is not true as shown in annexure EB-2 in the fifth respondent's counter affidavit because the certificate of occupancy is registered in the name of the fourth respondent. He submitted that shows the applicant stands to suffer no harm as she has no interest in the suit property. He supported his submission with the case of Mohamed Iqbal Haji & Others V. Zedem Investment Limited, Misc. Land Application No. 05 of 2020, HC Land Division at DSM (unreported) where it was stated in the circumstances of the stated case the applicant will not suffer irreparable injury which cannot be atoned by way of damages if injunction is not granted. He stated the applicant has failed to prove she has any interest in the suit property and how she will suffer irreparable loss in the injunction will not be granted and the suit property sold. He referred the court to the case of Jane Paul Mwikwabe V. Paul Mwikwabe & six Others, Land Case No. 82 of 2011 where it was stated in banking business there is nothing like irreparable loss if there is bonafide claim of rights arising from breach of financial contractual terms. He also cited in his submission

the case of Jane Samson Kuja V. Samson Mtawala Kuja & Others, Misc. Land Application No. 585 of 2015 14 where it was stated the banks are losing money to unfaithful borrowers hence the court should shun away from creating a bush for borrowers or guarantors to hide simply by sympathizing with the applicant. He submitted the applicant has failed to satisfy the second limb for granting an order of temporary Injunrtlon and prayed the application be dismissed In Its entirety with costs. With regards to the third condition of balance of convenience the counsel for the fifth and seventh respondents stated that, the fifth respondent being a bonafide lender has already been through a lot of Inconvenience to recover the loan from the fourth and sixth respondents. He stated that, the fifth applicant being a banking business. If the orders sought by the applicant are granted. It will defeat the whole process and purpose of creation of security. He said In order for banks to have funds to lend it must recover funds advanced to the borrowers. He submitted that. If the fifth respondent Is not allowed to recover the same by an order of temporary Injunction, she will be rendered candidate of bankruptcy because of a huge number of frivolous cases like this. He submitted the applicant will not be Inconvenienced In anyway because she has no Interest In the suit property. He cited In his

submission the case of Mohamed Iqbal Haji (supra) where It was stated that. In order 15 for the bank to remain In business it must have funds to lend; and the funds must come from funds repaid by borrowers. He went on citing the case of Paul Mtatifikoio V. CRDB Bank Ltd & Others, Land Case No. 89 of 2005 where it was stated that, since there was money remained unpaid, it means the bank had been denied utilization of the stated money. He referred the case to the case of Starcom Consumer Healthcare V. DTB, Misc. Application No. 08 of 2023 where it was stated in granting injunction public interest or public policy are required to be considered. He submitted that the money borrowed is a public money that has to be timely recovered to re-enter into the economy. He stated the more the recovery delayed, the more the accrual of loan balance surpassing the value of the security hence unable to recover full outstanding. At the end he submitted the applicant has failed to meet the tests established in the case of Atilio V. Mbowe for the order of temporary injunction to be granted and prayed the application be dismissed with costs. In his rejoinder the counsel for the applicant reiterated what he argued in his submission in chief. Nevertheless, he stated the submission of the counsel for the first, second and third respondents who are government entities should not be considered as the

order of temporary injunction is not being sought against them but against the fifth and seventh respondents. 16 He referred the court to the proviso to Order XXXVII Rule 1 (b) of the Civil Procedure Code which states temporary injunction cannot be granted against the government. In response to the submission of the fifth and seventh respondents he stated there is nowhere the applicant has stated is the registered owner of the suit property but the applicant stated is the lawful or rightful owner of the suit property. As for the argument that the affidavit of the appiicant is tainted with untruth statements hence unreliabie, he stated the submission of the stated respondents is misconceived and aiming at misieading the court. He stated the issue of the appiicant to live together with the fourth respondent in the suit property was cleared by the reply made by the appiicant to the written statement of defence of the first, second and third respondent where it is stated the applicant and the fourth respondent used to live together in the suit property but iater on, they separated. Coming to the issue of triable issue he stated the appiicant is not required to prove the alieged fact but to establish facts which shows that she has interest in the disputed property. He stated the facts iike sale agreement, existence of TANESCO and DAWASA biiis shows the applicant has interest in the

suit property which is her oniy piace to live with her issues. He went on reiterating what he stated in his submission in chief in respect 17 of the other conditions for granting an order of temporary injunction and at the end he prayed the application for temporary injunction be granted. I have painstakingiy considered the rivai submissions fronted to the court by the counsel for the parties and find before going to the merit of the appiication it is proper to start with the concern raised in the rejoinder submission fiied in the court by the counsel for the applicant that, the submissions of the first, second and third respondents should not be considered as the order of temporary injunction is not sought against them and as provided under the law it cannot be granted against government. The court has found it is true that the first, second and third respondents are government institutions and the proviso to Order XXXVII Rule 1 (b) of the Civil Procedure Code states temporary injunction should not be issued against government. Nevertheless, the court has found that cannot be a ground of making the court to fail to consider the submissions filed in the present application on behalf of the first, second and third respondents. The court has come to the stated finding after seeing that, as they were joined in the appiication as parties, they had a right of being heard. The

question as to whether the sought should be granted against the mentioned government institutions or not is the question to be considered after considering all submissions filed in 18 the matter by all parties for the purpose of determine whether the order the applicant is seeking from the court should be granted or not. It is the view of this court that, as the applicant was aware that the law prohibits the order of temporary injunction to be issued against the government and if he believed the mentioned respondents were not required to file their submissions in the court, she ought to have not joined them in the application. As she has joined them in the application, they have a right of filing their submission in the application. That makes the court to find the concern raised by the counsel for the applicant in his rejoinder submission is devoid of merit and it is hereby dismissed in its entirety. The court has found the counsel for the fifth and seventh respondents raised another point that the affidavit filed in the court by the applicant is tainted with untruth facts and prayed the court desist to consider the affidavit of the applicant. The court has carefully considered the stated point but find it is a point which need evidence to prove the affidavit of the applicant is tainted with untruth facts. To the view of this court that is not the point which can be determined

by basing on what has been stated in the submission of the counsel for the fifth and the seventh respondents. In the premises the stated point is hereby dismissed in its entirety. 19 Back to the merit of the application, the court has gone through the pleadings filed in the present application and in the main suit and find the issue to determine in this application is whether the applicant deserve to be granted the order of temporary injunction is seeking from the court. The court has found that, as rightly argued by the counsel for the parties the conditions governing determination of an application for an order of temporary injunction in our jurisdiction were laid in the case of Atilio V. Mbowe cited in the submissions of the counsel for the parties. The conditions laid in the foregoing cited case are as follows: - (1) "There must be serious question to be tried on the facts aiieged, and a probabiiity that the piaintiff wiii be entided to . the reiiefprayed. (2) That the court's interference is necessary to protect the piaintiff from the kind of injury which may be irreparabie before his iegairight is estabiished, and (3) That on the baiance of convenience there wiii be greater hardship and mischief suffered by the piaintiff from the withhoiding of the injunction than wiii be suffered by the defendantfrom the granting ofit." I will start with the first condition of serious

question to be tried by the court which sometimes is referred as a prima facie case. The court has found the position of the law as stated in several cases decided by our courts is 20 that, the court is not required to examine the material before it closely and come to a conclusion that the plaintiff has a case which he must win as to do so would amount to prejudging the case on its merit. The stated position of the law.was made clear in the case of the CPC International Inc V, Zainabu Grain Millers Ltd, Civil Appeal No. 49 of 1999,(unreported) where it was stated that, it will be premature to dwell in determining the applicant will win the main suit or will obtain a decree at this stage as the parties have not adduced any evidence to prove or disprove the reliefs the applicant is seeking from the court. The above view is also being bolstered by what was stated by Lord DIplock in the case of American Cyanamid Co. V. Ethicon Ltd,(1975) 1 All ER 504 which is a leading case in this aspect that: - "It is not part ofthe court's function at this stage of the iitigation to try to resoive conflicts of evidence on affidavit as to facts on which the ciaims of either party may uitimateiy depend nor to decide difficuit questions ofiaw which caii for detaiied argument and mature consideration. These are matters to be deait at triai". While being guided by the position of the law stated in

the above cited cases the court has found in determine if there is a serious question for determination in the present application it is required to use the facts as disclosed in the plaint and in the affidavit filed in the court by the applicants 21 and the counter affidavit together with written statement of defence filed in the court by the respondents and the facts deposed in the reply of the applicant to the counter affidavit of the respondents. The court has found as rightly argued by the counsel for the applicant the applicant deposed at paragraphs 2, 3 and 5 of her affidavit and averred at paragraphs 10,11 and 12 of the amended plaint that she is the sole lawful owner of the suit premises after purchasing the same from Itika Mwaiseje and built a residential house on the suit property where she is living with her children. The applicant has also deposed at paragraphs 5, 7 and 8 of her affidavit and it is averred at paragraphs 17,18 and 19 of the amended plaint that, later on the applicant discovered the fourth respondent did fraudulently processed and registered the suit property in his own name without the knowledge of the applicant and mortgaged the same to secure the loan given to the sixth respondent by the fifth respondent. The court has found that, the stated allegations of the applicant are strongly denied by the first, second, third, fifth and seventh respondents

in their counter affidavit and they are strongly disputed by the mentioned respondents in their written statement of defence. The stated situation of the matter caused the court to find there are serious issues of who is the lawful owner of the suit premises between the applicant and the fourth 22 respondent and whether the fourth respondents could have mortgaged the suit premises to secure the loan given the sixth respondent by the fifth respondent without the consent of the applicant The stated deposition and facts averred in the plaint together with the reply made thereof by the respondents makes the court to find there are serious issues need to be determined in the matter. It is the view of this court that, there as Is probability of the reliefs the applicant is seeking from the main suit will be granted if the applicant will manage to give evidence which will substantiate her claims. In the premises the court has found that, as the court is required to be satisfied there is a bonafide contest between the parties the applicant has managed to establish the first condition of having a prima facie case or serious issue to be tried by the court required to be established before the order of temporary injunction is granted. Coming to the second condition, the same requires the applicant to establish the applicant will suffer irreparable loss if the order of temporary injunction

will not be granted. The court has found that, as stated in the case of Eliezer Liwali V. Bay View Properties Limited, (Wise. Com. Application No. 110 of 2021, HC Com. Division at DSM (unreported), in determine whether the applicant will suffer irreparable loss the court is required to consider varieties of reasons including the reason to prevent the 23 relief sought from being rendered nugatory and even need to maintain the status quo. The court has found it was also stated in the case of T- A. Kaare V. General Manager Mara Cooperative Union,[1987] TLR 17 that, the court Is required to consider whether there is a need to protect either of the parties from the species of injuries known as irreparable injury before right of the parties is determined. It was further stated in the book of Sohoni's Law of Injunction, Second Edition, 2003 at page 93 that: - "As the injunction is granted during pendency ofthe suit the court wiii interfere to protect the piaintiff from injuries which are irreparabie. The expression "irreparabie injury''means that, it must be materiai one which cannot be adequateiy compensated by way of damages. The injury need not be actuai but may be apprehended." Under the guidance of the position of the law stated in the above cited authorities the court has found that, the counsel for the applicant argued if the order of temporary injunction the applicant is

seeking from this court will not be granted the applicant will suffer irreparable loss because she wiii lose the suit property which is her only means of shelter together with her children. The court has found the counsel for the first, second and third respondents argued extensively in this condition that the applicant has not 24 fronted before the court sufficient particulars of the irreparable injury she will suffer if the order of temporary injunction will not be granted and the suit property is sold by the fifth and seventh respondents. The court has found it was submitted further by the counsel for the fifth and seventh respondents that the applicant has not managed to establish she will suffer any irreparable injury if the order sought will not be granted because the applicant has failed to prove she has any interest in the suit property. The court has failed to agree with the counsel for the respondents that the applicant has failed to give sufficient particulars of the irreparable injury she will suffer if the order of temporary injunction the applicant is seeking from the court will not be granted. The court has come to the stated finding after seeing that, as stated in the first condition for granting the order of temporary injunction the applicant has categorically stated at paragraph 12 of her affidavit that, she has no any other house of dwelling for her survival

and her little children. The court has found although it is true that it was stated in the cases of Patrick P. Chale and Starcom Consumer Health Care Ltd (supra) that where particulars of irreparable loss has not be given the court cannot exercise its discretion to grant the order of Injunction sought but the circumstances of the application at hand is different because the applicant 25 has stated the particulars of the injury she will suffer if the order of temporary injunction will not be granted and the suit property is sold before hearing and determination of the main suit. The court has also considered the arguments by the counsel for the fifth and seventh respondents and the position of the law stated in the cases of Jane Paul Mwikwabe and Jane Samson Kuja (supra) that there is no irreparable loss if there is a bonafide claim of right and that it is not enough to say the applicant will loss matrimonial home but come to the view that, it cannot be said the Injury the applicant will suffer if the suit premises will be sold and evicted from the suit premises is not irreparable loss. The court has come to the stated finding after seeing shelter is a necessity of every human being hence there is no way It can be said lose of it is not irreparable injury. The stated view of this court Is getting support from the case of Agnes Kosia & Others V. The Board of Trustees of NSSF &

Another, Misc. Land Application No. 590 of 2016 where the court stated that: - "... what is plain for aii to see is the fact that there are very serious triable issuesin the main suit caiiing for determination by this court. .... While the above posed questions are yet to be considered and determined by the court, the respondents have initiated eviction process which ifieft unchecked, wiii definitely render the applicants homeless. I entertain no doubts 26 whatsoever that if evicted: the appiicants wiii iead difficuit and unpieasant iife-suffering from iack ofsheiter which is one ofthe basic needs ofiife." The wording of the above quoted case and all what I have stated herelnabove caused the court to find the applicant has adduced sufficient particulars which shows she will suffer Irreparable loss if the order of temporary injunction will not be granted and the suit premises will be auctioned before hearing and determination of the suit pending in the court. Although it can be said as argued by the counsel for the fifth and seventh respondents that the fifth respondent being a bank institution is in a position of being able to pay monetary compensation to the applicant if the suit premises will be sold and at the end the matter is determined in favor of the applicant but that is not enough to establish the compensation which will be paid will be adequate enough to cover the

mental anguish and stress the applicant will suffer with her children. In the premises the court has found the particulars given by the applicant has managed to establish she will suffer irreparable loss which cannot be compensated by monetary terms if the order of temporary injunction will not be granted and the suit property is auctioned before the applicant's claims pending in this court is determined. The court has found 27 there is no merit in the argument by the counsel for the respondents that the court is ieft to specuiate on the particuiars of the irreparable Injury which wiii be suffered by the appiicant. Consequentiy, the court has found the second condition for grant of an order of temporary injunction has been met in the present application. As for the third condition for granting an order of temporary injunction which is baiance of convenience the court has found that, as stated in the book of Solonis Law of Injunction (supra)the court is required to balance and weigh the mischief or inconvenience to be suffered by the parties if the order of temporary injunction sought by the appiicant wiil be issued or withheld. The court has found while the applicant argued the applicant will be more inconvenienced if the order will not be granted the counsel for the respondents argued the fifth respondent wili be more inconvenienced. To the view of this court and as stated in

the preceding condition for granting an order of injunction the applicant will be more Inconvenienced than the respondents if the order of temporary injunction sought by the appiicant will be withheld. The court has come to the stated view after seeing that, if the fifth and seventh respondents will be left to continue with their intention of auctioning the suit property the appiicant and her children will be rendered homeless while the fifth respondent can continue to claim for 28 unpaid loan and the interest from the fourth and sixth respondent through the loan agreement they entered. The court has considered the submission of the fifth and seventh respondents'counsel in relation to this condition and the position of the law stated in the cases of Mohamed Iqbal Haji and Paul Matatifikolo(supra) but find the circumstances of the mentioned cases are distinguishable from the present application. The court has come to the stated finding after the stated cases were not dealing with the situation where the applicant will lose a suit property which is the only available residential house for the applicant and her children. Since the applicant has alleged in the present application that the suit property was fraudulently mortgaged to secure the loan given to the sixth respondent the court has found there is justifiable cause for it to grant the order the applicant is seeking from the

court for the purpose of protecting the suit property pending hearing and determination of the dispute between the parties. It is because of the above stated reasons the court has found ail the three conditions for granting an order of temporary injunction laid in the case of Attilio V. Mbowe (supra) have been established in the application at hand to the required standard. Consequently, the application is granted and the order of temporary injunction to restrain the fifth and seventh 29 respondents, their servants, workmen, agent and or whosoever purporting to act on their behalf from auctioning the suit property pending hearing and final determination of Land Case No. 136 of 2023 pending In this court is granted and each party to bear his own costs. It Is so ordered. Dated at Dar es Salaam this 10^^ day of January, 2024 I. Arufani X V- Judge 10/01/2024 Court: Ruling delivered today 10^^ day of January, 2024 in the presence of Mr. Yesse Mtungi Rugaiya, learned advocate for the applicant and In the presence of Mr. Francis Wisdom, learned State Attorney for the first, second and third respondents and in the absence of the rest of the respondents. Right of appeal to the Court of Appeal Is fully explained. ^■/ I. Arufani ^ ^ J udge '^ " 10/01/2024 ★ \ Divv.^^ 30