20150716 TZHC Dar es Salaam

I 1 IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM , CIVIL REVISION NO. 27 OF 2015 (From Civil Case No.358 of 2004 at Dar es Salaam RM's Court at Kisutu) GETEX LIMITED t/ a HITE CH DRY CLEANING ............... APPLICANT Versus INDIAN OCEAN HOTELS LTD t/a GOLDEN TULIP ..... RESPONDENT Date of last Order: 23/11/2015 Date of Ruling: 01/02/2016 RULING FELESHI, J.: This is a ruling in respect of an application for revision made under section 44(1)(b) of the Magistrates' Courts Act, [CAP. 11 R.E, 2002] that this Court may be pleased to call for the records in Civil Case No. 358 of 2004 in the Resident Magistrates Court of Dar es Salaam at Kisutu and revise the order dated 16/04/2015 for the same contains apparent errors causing injustice on the part of the applicant specifically in staying execution dated 06/09/2010 which had the effect of stopping accrual of interest on the decretal sum. On 27/08/2015, the respondent's counsel raised two Preliminary Points of Objection to wit:- 1. The application is hopelessly time barred. 2. The chamber summons is not supported by the affidavit contrary to the provisions of Order XLIII Rule 2 of the Civil Procedure Code, CAP. 33 R.E, 2002]. 1 The hearing of the Preliminary Objection was heard by way of written submissions whereas the respondent engaged the services of the M/S R.K. Rweyongeza & Co. Advocates while the applicant was represented by the M/S Decorum Attorneys. Submitting for the Preliminary Objection, the respondent's counsel submitted for the 1st limb that, the application at hand· was filed some forty (40) days after lapse of the time the application ought to have been filed as the law requires under item 21 of Part III of the schedule to the Law of Limitation Act, TCAP. 89 R.E; 2002] to be filed within sixty ( 60) days from the date of decision. Regarding the 2nd limb of Preliminary Objection, the respondent's counsel submitted that the deponent in the supporting affidavit one GODWIN MUGANYIZI (advocate), is not the applicant as such thus rendering the application incompetent for want of a supporting affidavit in terms of Order XLIII Rule 2 of the Civil Procedure Code (supra). In response, the applicant's counsel submitted for the 2nd limb of Preliminary Objection that, stating in the affidavit that the deponent is the applicant (instead of-an advocate for the applicant) is not a material error occasioning miscarriage of justice for the same is curable. He thus urge for substitution of the said words in the interest of justice. As to the 2nd limb of Preliminary Objection, the applicant's counsel submitted that the application under scrutiny is within the prescribed time limit because the time in applying for certified copies of ruling and 2 drawn order which was availed to the applicant on 10/07/2015 should be excluded. He urges the Points of Objection to be overruled. Regarding the 2nd limb of Preliminary Objection on defective affidavit, truly and as conceded by the applicant, the same refers to GODWIN MUGANYIZI as the applicant instead of referring GODWIN MUGANYIZI as an advocate for the applicant. Thus, since an affidavit is evidence which cannot be amended and considering that the applicant has not sought leave to file a Supplementary Affidavit (for he could not so pray after the raise of the Preliminary Points of Objection), then, that renders the application incompetent for want of a supporting affidavit in terms of Order XLIII Rule 2 of the Civil Procedure Code (supra). Besides, notably, the jurat of attestation in the affidavit sworn by GODWIN MUGANYIZI does not make clear whether the deponent was either known or introduced to the Commissioner for oaths by somebody. Such failure to disclose renders the application incurably defective as held by the Court of Appeal of Tanzania in SIMPLISIUS FELIX KIJUU KISAKA vs. THE NATIONAL BANK OF COMMERCE LIMITED, Civil Application No. 24/2003 where the Court underscored to the effect:- "The affidavit does not show whether the Commissioner for Oaths knew the applicant personally or whether the applicant was identified to him by somebody whom the Commissioner for Oaths knew personally. This is contrary to the requirement of section 10 of the Oaths (Judicial Proceedings} and Statutory Declaration Act No. 59 of 1966. This being the case, it is evident that the applicant's affidavit in support of the Notice of Motion is defective. The crucial issue is as to what is the effect of a defective affidavit in support of a notice of motion. In my view, a defective affidavit in support of a Notice of Motion renders the 3 application incompetent. It leaves the application without legs on which to stand. Since the application is incompetent for being supported by a defective affidavit, it must be struck out". From the above in consequential, the application in wholesome is incompetent for being fatally defective. Thus, the application at hand is fatally defective and deserves to be struck out for being incompetent. Being the case, there is no reason to address the 1st limb of Preliminary Objection. Considering the circumstances, I make no order as to costs. Order -accordingly. - - - - -- - - - - \ Ruling delivered in chambers this 26th day of January, 2016 in presence of Ms Fatma, Advocate for the Applicant and Ms. J.Rweyongeza, Advocate for the Respondent. \ I E. . FELESHI ' JUDGE 01/02/2016 4 IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC.CIVIL APPLICATION NO. 57 OF 2015 (Originating from Land Case No. 56 of 2015) MESHACK GEORGE MANG'ULI. ......................... . APPLICANT VERSUS ACCESSBANK(T)LTD .....•......••........ RESPONDENT Date of last order 1.07.2015 Date of Ruling 16.07.2015 RULING Feleshi, J.: This application was filed under sections 68( e), 95 and Order XXXVII, Rule l(a) of the Civil Procedure Code, [Cap.33 R.E. 2002] and was brought under certificate of urgency praying for the following orders: 1. That this Hnourable Court may be pleased to grant Temporary injunction restraining the Respondent and or, his agents, assignees, or any person(s) acting under his instruction from disposing, trespassing the land which is belonged to the applicant located at Mbezi Mwisho in Kinondoni Municipality and her husband, located at Plot No.82 Bolek G, Sinza Area within Kinondoni Municipality, pending the hearing of the main suit on merit. 2. Any other relief/reliefs which this Honourable Court may deem fit to grant in injunction with the prayer made above due to the Respondent's acts as stated under in the Affidavit in support of this Application. 3. Costs of this application be provided for. 1 During the hearing of this Application, Mr.Mtanga who asked the Court to allow him to adopt the Applicant's Affidavit made on 1ih June, 2015, he submitted that whereas the mortgage contract executed between the applicant and the respondent is still intact the respondent and his agents have violated it by: first, routinely trespassing into the mortgaged properties belonging to the applicant and his guarantor one Jenipher Rebecca Guga by sending various people who purport to be prospect buyers of those properties in the auction that they say would be executed very soon; secondly, making defamatory words at the applicant's workplace as well as at his commercial premises the words which have lowered his reputation and affected his business; and third, not notifying the applicant and his guarantor about intended disposal of their properties. He submitted that those acts affect the applicant whose loan was purely taken for business purposes. Mr.Mtanga cited to this Court the decision in the case of Attilio v. Mbowe (1969) HCD 284 and submitted that the three conditions laid down in that case are applies in favour of his client. The three conditions are: first, 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; second, 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 third, that on balance of convenience 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. He therefore submitted that the breaches made by the 2 respondent to the mortgage contract when tested against the three conditions above qualify him to be granted with the temporary injunction against the respondent. The respondent through Mr.Malawa, Advocate, strongly opposed the application. Like Mr.Mtanga, he sought to adopt the Counter Affidavit deposed by one Kennedy Lyimo. He then discredited the applicant's application saying in no way is capable of passing the three conditions laid down in the case of Mbowe because: first, the applicant has no locus standi to sue or claim in respect of his guarantor's property located at Sinza which is pleaded in Paragraph 2 of his Affidavit; second, granting temporary injunction against his unsurveyed property deposited as a collateral acting on a Warning letter served to him by the respondent is premature and misuse of the powers of the court because the Warning letter just reminded the applicant that if he will not comply with the terms of the mortgage contract the respondent will exercise his rights prescribed by Paragraph 4 of the Warning letter which gladly, both parties attached it to their Affidavit and the Counter Affidavit respectively; third, that under section 14(d) of the Mortgage Financing (Special Provisions) Act, No. 17 of 2008 which amended section 127 of the Land Act, [Cap.113 R.E.2002] the application is again premature because the law provides that before the disposition of any mortgaged property there must be issued a 60 days default Notice served to the mortgagor; and four, under section 12(2) of the Auctioneers' Act, [Cap.227 R.E.2002], the respondent being the Financial Institution does not have mandate to dispose the property by public auction. That the disposal of a landed property by auction under 3 that section requires issuance of at least 14 days prior notice given at the principal town of the district in which the land is situated and also at the place of the intended sale. He said, as in the instant case the respondent has not yet issued any notice to the applicant that means there is no eminent dispossession of the applicant's property of which he can competently challenge before this Court. In the light of those four grounds Mr. Malawa submitted that there is no any serious question of law in the applicant's application that requires the determination of this Court and there is no any fact shown by the applicant that he will suffer irreparable loss if this Court does not interfere and protect him from injury. As regards the complaint about the trespass and defamatory words allegedly made by the respondent, Mr. Malawa submitted that what the applicant alleged to this Court is a mere speculation. Therefore, he stressed, in the absence of a serious question of law to be determined and a compelling need for this Court to interfere, it is automatic that there is no way how the applicant can be inconvenienced if this Court will not grant the temporary injunction. He therefore urged this Court to strike out the application with costs. In his brief rejoinder, Mr. Mtanga submitted that the applicant has a locus standi over his guarantor's property because the contract between the Applicant and the Respondent involves a property belonging to the guarantor. So, there is no way it can be said that he has no locus standi over the property belonging to the guarantor. 4 As regard the prematurity of the application he dismissed the respondent's submission and stressed that the court's interference is needed to halt the respondents' interference to the properties and give him justice. In his view, it is the respondent's employees and agent's interferences and trespass to the properties that are prematurely taken. He otherwise believes that he has a triable suit in court and the affidavit is compliant with the conditions stated in the case of Mbowe above. He therefore invited the Court to grant his application as prayed. From the foregoing facts and submissions this Court is supposed to determine whether the application is meritorious for the issuance of the temporary injunction. The provisions relied upon read as follows: "Section 68.In order to prevent the ends of justice from being defeated the court may, subject to any rules in that behalf- (e) make such other interlocutory orders as may appear to the court to be just and convenient. Section 95. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Order XXXVII, Rule 1. Where in any suit it is proved by affidavit or otherwise- (a) 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 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"[emphasis supplied]. 5 It is a common ground that this Court can only grant temporary injunction upon being convinced by the applicant through an affidavit in support of his application or his prayer raised in the ongoing proceedings that if the temporary injunction sought is not granted the property which is the subject matter of the trial shall be wasted, damaged, or alienated, wrongly sold in execution of a decree, removed or disposed of and hence render the proceedings a nugatory. Procedurally, I wish to remind that the inclusion of section 95 of the CPC in the Chamber Summons in the application like the one at hand was unwarranted because: it is trite law that where there is a law making provision for exercise of powers by a court then inherent powers of the court under section 95 of CPC cannot be invoked. That is because the inherent powers of the Court under section 95 of the CPC relate to matters of procedure for the ends of justice and to prevent an abuse of process of the Court (see: Aero Helicopter (T) Ltd v. FN Jansen [1990] TLR 142 , M/S Tanzania - China Friendship Textile Co. Ltd v. Our Lady of the Usambara Sisters [2006] TLR 70 (CAT) and Charles Chepe Nkomalago v. Shukuru Charles Nkomalago, HC.Misc. Civil Application No. 143 of 2015, Dar es Salaam Registry- Unreported). Regarding the substance of the application, I have established that both parties agree that until on 17th June, 2015 when the application was filed the respondent had not yet taken any action against the any of the mortgaged properties. The respective affidavit and counter-affidavit 6 and their annextures are very clear that what the applicant was served with on 9 th July, 2015 was the Warning letter whose paragraph 4 reads: "That in event the default(s) or breach herein stated are not remedied or rectified within seven days of the date of service of this Notice; we shall proceed to exercise any of the lender's remedies according to the law, that is to say, a. To sue you for all monies due and owing under the mortgage, b. To appoint a receiver, c. To lease the mortgaged land, d. To enter into possession of the mortgaged land, or e. To sell the mortgaged property." In view of the foregoing, I am therefore contented by the applicant's affidavit, respondent's counter- affidavit and their subsequent submissions that the Warning letter they referred to and discussed was an initial step to be taken in case of breach to the mortgage agreement they mutually agreed upon. It is for that reason, I think, that is why the applicant did not seek for declaratory orders that the mortgage contract, which he said is still valid, be declared void ab initio. Therefore, if until 17th lune, 2015 the respondent had not taken any of the measures pointed out in paragraph 4 of the Warning letter above, of course subject to the statutory conditions prescribed by section 127 of the Land Act (supra) as amended by section 14(d) of the Mortgage Financing (Special Provisions) Act (supra) and section 12(2) of the Auctioneers' Act (supra), I do not see the genesis and genuineness of this application. And, as rightly, in my opinion, submitted by the respondent's counsel the applicant, even if could have a cause of action against the respondent in respect of his own property, he could not assume locus 7 standi and plead against his guarantor's property who is an alien in the present proceedings. The guarantor's undertaking in the mortgage contract was guided by the terms he willingly acceded to and impressed the respondent to make good for any liability resulting from the breach made by the guarantee in the mortgage contract. Based on that understanding, I do not find any difficult to subscribe to the holding made by My Brother Hon.Mziray, J. in the case of Exim Bank (T) Limited v. Agro Impex (T) Ltd, Parres Vira and Azmivira, Land Appeal No.29 of 2008 (Unreported) that matters of this nature do not even qualify being land matters. He held: "The mere fact that the second and third defendants have put some security for the loan does not turn the suit to be a land dispute. Additionally, in my view, suing on an overdraft per se does not turn the suit to a land dispute and give this court the necessary jurisdiction." In my unfeigned opinion, I am satisfied that at the moment the applicant's assertion in the affidavit and Mr.Mtanga's subsequent submission do not meet all three conditions laid down in the case of Atilio Mbowe above. The application is thus baseless and fantasy. I did not get any justification to why the applicant moved the court to stretch its catch to anonymous agents, assignees and other persons acting under the respondent's instructions. That undoubtedly, in my view, would amount to unduly engaging the Court to do something that may result into abuse of the legal processes (see: Augustine Lyatonga Mrema and two others v. Abdallah Majengo and two others, CAT Civil Appeal No. 41 of 1999 and Ernest Adis Lukoma v. EFC Tanzania M.F.C Limited and 8 Bluesky Auction Mart & Real Agency Co.Ltd, HC. Misc.Civil Application No. 523 of 2014, Dar es Salaam Registry-Unreported.). In the case of Augustine Lyatonga Mrema and two others' above the Court observed that: "we also wish to observe that the H/Court, even if it were minded to grant the order for injunction, should not have granted the order as prayed because it was unduly wide, bringing under its umbrella even innocent parties apart from its vagueness. For instance, who are the appellant's followers, what have the appellants' servants in the form of cooks, house girls or gardeners to do with their bosses ....the judge should have limited her order to the main complaint against the appellants .... " As aforesaid, this Court is not yet seized with any justification for it to stretch its catch in a bid to protect a property, subject to the suit from being wasted, damaged, or alienated wrongly sold in execution of a decree, removed or disposed and hence pre-empt the trial. For the above reasons, I consequently dismiss the application with costs. It is ordered_31ccordingly. ,~UR, DI.~·/ q-eo , ALAA ~t (\ \, :c \ ~1.,'.... 71 "' .M.FELESHI \1»,.,,,~~., _:;,; ·tl .; ~ , "•r·" .¢•,.,............___,. ""' :..,J~ ~ JUDGE . ::~· ~ Delivered~'int<:e Chambers in the presence r. Mtanga Advocate for the Applicant an · absence of the LESHI JUDGE 16/7/2015 9