hamoki company limited another vs national bank of commerce limited another 2023 tzhclandd 16630 26 june 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 283 OF 2023 BETWEEN HAMOKI COMPANY LIMITED..............................1st APPLICANT HAJI MOHAMED KINJANGA................................ 2nd APPLICANT VERSUS NATIONAL BANK OF COMMERCE LIMITED......1st RESPONDENT MAS & ASSOCIATES COMPANY LIMITED & COURT BROKER.............................2nd RESPONDENT RULING 05/06/2023 & 26/06/2023 A, MSAFIRI, J. The applicants hereinabove have brought this application under Order XXXVII Rule 1(a) and 2(1), Sections 68(c) and 95 all of the Civil Procedure Code, Cap 33 of 2019 (herein as the CPC). The application was filed under the certificate of urgency seeking for the temporary restraining orders against the respondents from selling by public auction or in whatever manner of the suit premises described in the chamber summons as Plot No. 245, Block F, Chamazi Area, Temeke Municipality and House No. 39 Block C, Msongola Area, Temeke Municipality both in Dar es Salaam, pending the hearing of the main suit which is instituted in this Court. i The application was supported by a joint affidavit of the applicants affirmed by Haji Mohamed Kinjanga who is the 2nd applicant and a principal officer of the 1st applicant respectively. The respondents did not file their counter affidavits. On the date scheduled for hearing, the applicants were represented by Mr. Castor Rweikiza, learned advocate while Mr. Yohanes Konda, learned advocate, represented the respondents. Mr. Konda addressed the Court and submitted that, the respondents did not file a counter affidavit as they do not intend to object the application. He prayed that the application be granted as prayed save for the costs on which he prayed that each party to bear its own costs. Since the application was not objected, Mr. Rweikiza addressed the Court and adopted the contents of the affidavit by the applicants. He prayed for the application to be granted with no order as to the costs. According to the contents of the affidavit, sometimes in year 2018, the 1st applicant entered into loan agreement with the 1st respondent whereby the latter advanced a term loan amounting to TZS. 300,000,000/= payable for a two years period (24 months). That the said loan was repaid, but in January 2021, the 1st applicant obtained another loan in the sum of TZS. 150,000,000/= payable at installments at TZS. 7,600,000/= per month. That the 2nd applicant is a guarantor to the said loan whereby he deposited the suit premises as security for loan. The applicants stated further in their joint affidavit that, the 1st applicant's business went astray following economic crisis caused by corona pandemic. Af I L. 2 That, the applicants on different occasions had attempted to settle the matter amicably with the 1st respondent and urged her to reschedule the loan from current monthly repayment installment to the reasonable monthly repayment but the 1st respondent refused to cooperate. That, the 1st respondent has intention of disposing of the suit properties by auction as per the notice of public auction which was affixed to the offices of the 1st applicant. That, the 1st applicant has been servicing the said loan to a reasonable amount and a huge amount has already been paid where the 1st respondent has already deposited more than TZS. 250,000,000/= as evidenced by the Bank statement annexed to the joint affidavit of the applicants. That, basing on that, the applicants believe that the respondents' intention to sale the suit premises is unjustified, and unreasonable. The applicants strongly believe that they have a prima facie case against the respondents. On the condition of irreparable damage, the applicants stated that the value of the suit premises intended to be auctioned by the respondents is too high compared to the outstanding and unpaid loan. Hence if the respondents will proceed with disposing of the suit premises by auction, then the applicants and their entire families will suffer irreparable loss including becoming homeless. Having gone through the contents of the joint affidavit by the applicants, I am satisfied that they have successfully meet the conditions necessary for this Court to grant temporary injunction as they were set in the case of Attilio vs. Mbowe (1969) HCD 284 and reiterated in litany of cases by this Court. Mh- 3 I have also considered the fact that the application was not objected by the respondents. Hence, I proceed to grant the temporary injunction restraining the respondents from disposing of or any way tempering with the suit premises pending the hearing of the main case. Each party to bear its own costs in this application. It is so ordered. 4