MISC

r 1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 10239 OF 2023 (Arising from Land Case No. 6860 of2024) ELY SAACK AND GENERAL CO.LTD......................................1st APPLICANT PATOBA LUGULI MAG AN I LA.............................................. 2nd APPLICANT 1 VERSUS DEPOSIT INSUARANCE BOARD (LIQUIDATOR OF FBME LTD)........................................... 1st RESPONDENT TAMBAZA AUCTION MART AND I GENERAL BROAKERS LIMITED...................................... 2nd RESPONDENT ATTORNEY GENERAL..................................................... 3rd RESPONDENT RULING Date of last order: 12/6/2024 Date of Ruling:31/7/2024 S.D. MWAIPOPO, J: The Applicants have filed an Application under Section 68 (1) (e) and Order XXXVII Rule 1 (a) of the Civil Procedure Code Cap 33 RE 2019 praying for this court to grant an order for temporary injunction against the Respondents restraining them, their agents or workmen to implement their intention of interfering with the landed property of the 2nd Applicant, plot No.237 Block No. 3 at Kisota Mjimwema in Kigamboni I r Municipality with CT No.70226 in any way, including their intention of auctioning the property pending the determination of the main suit. The Applicants also prayed for any other orders this court may deem fit to I grant and costs. ; i The Application is supported by the Affidavit of Patroba Luguli Maganila, I the 2nd Applicant and opposed by the Counter Affidavit of the 1st and 3rd I I Respondents. • The hearing of the Application proceeded by way of written submissions, pursuant to the timetable drawn by the court. At the commencement of hearing, both parties were represented. The second Respondent, having been notified of the matter opted not to appear in court and exercise her right of responding to the Application. Therefore, the hearing of the Application proceeded exparte against the 2nd Responded. Arguing in support of the Application, the Applicants contended that they have met the three conditions for the grant of temporary injunction, that is, the existence of triable issues, irreparable loss criteria and balance of probability as will be analysed hereinbelow. The 1st and 3rd Respondents on their part have contended that the Applicants have not met the said criterial hence they should not be granted with an order for Temporary injunction, as will be analysed hereinbelow. In the case of Automech Ltd versus TIB Development Bank and Others, Misc. Civil Land Application No. 73/2020 Dar es Salaam Hon. Maige,J as he then was held as follows; Temporary injunctive orders are equitable and the trial court enjoys a wide discretion to grant or not provided that the discretion is exercised reasonably, judiciously and on sound legal principles. In the case of Atilio vs Mbowe 1969 HCD 284 the High Court developed three conditions for the grant of temporary injunction as follows: - i. There must be serious questions of facts to be tried, that is the presence of an arguable case and likelihood of the Applicant to succeed. ii. If the Applicant will suffer irreparable loss which cannot be a adequately remedied or attained by damages. iii. Balance of convenience, the Applicant will suffer greater loss than the Respondent if an order for temporary injunction is not granted. Applying the above principles to the case at hand I have observed the following With regard to the concept of prima facie case or serious questions of fact to be tried or an arguable case. The Applicant has contended that there is a pending case before the court which raised serious questions of fact to be tried in the case such as the practice and interference done by the lending Bank FBME to the 1st Applicants business which frustrated his business arrangement, the subsequent agreement entered between the parties to the effect that the FBME Bank abandoned its claims, the business between the 1st Applicant and the Respondents which was taken over by the Government which undertook to resolve the dispute (vide the Ministry of foreign Affairs) something which is still ongoing and hence he contended that the recovery measures are still premature. Further with regard to the triable issues the Applicants have submitted on the issue of the contractual debt being time barred since it is over six years i.e. 13 years and lastly, they argued on the invalid default notice which has not indicated an outstanding sum. On their party the 1st and 3rd Respondents have contended that the Applicants have not met this criteria since they have admitted to have obtained the loan secured by the suit premises and have defaulted to pay therefore an act of the bank to the enforce the loan does not constitute triable issue, they cited the case of Leopard meat Logistics Company Ltd (supra). The 1st and 2nd Respondents have contended that the Applicants have lied about the total amount of outstanding loan, by stating an amount of Tzs 210,000,000/= instead of 240,000,000/=. That the Land court is a wrong forum for them since their contention is the validity of the loan amount and terms of contract. Therefore, the Affidavit of the Applicant contains false information and it should not be acted upon (see the case of Ignazio Messina vs. Willow investments(supra). Having digested the rival submissions of the parties, I have observed that there is indeed a pending land case No. 6860/2024 between the parties and as argued by the parties there are so many arguable issues to be tried between the parties which would necessitate the granting of the order for temporary injunction; for example while the Applicants are agreeing that there is unpaid amount to the lending bank that there is an agreement to that effect, whose dispute is currently being resolved by the Ministry of foreign Affairs. Further they contend that, the contractual date is time barred and the Notice i.e. default Notice is not valid, for failure to indicate the outstanding amount. While the Applicants have submitted their position, the 1st and 3rd Respondents contends that the Applicants have conceded to the debt hence there are no triable issues. Further, they have submitted that the court has no jurisdiction to try issues to do with the validity of the loan amount and the Applicants Affidavit contains false statements. It is my settled position that, these rival submissions of the parties indicate that there are indeed triable issues or arguable issues to be considered in the main suit which warrant this court to grant an order for temporary injunction. While it is not the right time to discuss about substantive issues contained in the land case, there is no gain saying that deducing from the submissions of the parties and the documents attached by the ^11^0 I V" Applicants, there is an arguable case between the parties to cast some light on the presence of a prima facie case between the Applicants and the 1st and 3rd Respondents herein. I am aware that at this stage, it is only incumbent upon me to consider if there is a demonstrated bonafide claim in the intended suit. I am not thus expected at this stage to resolve complicated issues of facts and law as that would be prejudicial to the pending suit. In the case of Colgate Palm live vs Zakaria provision store and others, Civil case No 1/1977 referred at page 158 in Kibo Match group Ltd Impex Ltd, 2001, TLR 152, the court while discussing the concept of a prima facie case held as follows: - In principle the prima facie case rule does not require that the court should examine the material before it closely and come to a conclusion that the plaintiff has a case to succeed, for to do so, would amount to prejudging the case on its merit. All that the court has been satisfied of is that the Affidavit, Reply to Counter Affidavit and submissions of the parties demonstrate bonafide contentions between the parties in the main suit. Therefore, it is my settled position that; the first condition has been satisfied. Moving to the element of irreparable injury. It is trite law that courts would only grant injunction if it is satisfied that the Applicant would suffer an irreparable injury and If there is evidence that there would irreparable loss that cannot be adequately compensated by an award of the general damages (See Sarkar on Code of CPC). The Applicants in their submissions have contended that, by auctioning the 2nd Applicants property on plot No. 237 Block No. 3 at Kisota Mji Mwema, in Kigamboni Municipality with CT No. 70226, the 2nd Applicant and his family will be deprived of their residence and will not be able to get again. I agree with the Applicants in this regard, that if they win the case, the act of being rendered homeless cannot be repaired/atoned by way of compensation and that the question of the alleged invalid default Notice is one of the triable issues in the main suit. As for the criteria of balance of convenience, what amounts to balance of convenience was examined by the CAT in the case of Salehe vs Asac care Unit Ltd, Ayoub Salehe Chamshama and Kenya Commercial Bank Civil Revision No. 3 of 2012 Dar es Salaam CAT unreported pg 9. Where it was stated that: - "And on the question of balance of convenience, 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. The Applicants in their submissions have contended that by leaving the Respondents to implement their intention of auctioning the landed property of the 2nd Defendant/Applicant so that to leave him homeless it will cause him to suffer more loss than if the injunctive order is granted and that if it is found to be true that the Respondents are justified to auction the property then they can do it after the same has been proved before the court that indeed they are justified. On the other hand the Respondents have contended that they stand to suffer more as an institution since its been 15 years since the loan was granted and the lending bank is now bankrupt and the 1st Respondent is operating on a loss. Considering my position in the first and second criteria for the grant of an order for temporary injunction, I still find that, the instant Application still raises triable issues to be determined between the parties and that the issues raised in the submissions of the parties require further evidence to be adduced by the parties in the main suit, including the alleged false statements contained in the Affidavit. Therefore, based on this I find that the balance of convenience has tilted in favour of the Applicants. Furthermore, in order to ensure smooth conduct of the case, I find that granting of injunction will be more equitable than withholding it. In the upshot, I proceed to grant an Application by granting an order for temporary injunction against the Respondents restraining them, their agents, workmen or employees to implement their intention of auctioning the 2nd Respondent's landed property on plot No. 237 Block No. 3 at Kisota Mjimwema in Kigamboni Municipality with CT No. 70226. Costs shall borne by the parties. It is so ordered. DATED at DAR ESSALAAM 31st day of July 2024 JUDGE 31/07/2024