henry a kamara v goodluck samwel petro 3 others 2023 tzhclandd 16641 31 may 2023

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

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.167 OF 2023

HENRY A KAMARA APPLICANT

VERSUS GOODLUCK SAMWEL PETRO 1®^ RESPONDENT TANZANIA COMMERCIAL BANK 2"° RESPONDENT THE ATTORNEY GENERAL 3'^° RESPONDENT THE SOLICITOR GENERAL 4™ RESPONDENT

RULING Date ofLast Order:26/5/2023 Date ofRuling:26/5/2023 T. N. MWENEGOHA,J. This is an appiication for an order for maintenance of status quo or Temporary Injunction, made under section 2(1) and (3) of The Judicature and Appiication of Laws Act, Cap 358 R.E 2019 and Sections 68(e) and 95 of the Civii Procedure Code, Cap 33 R. E.

2019. The appiicant's prayer is in respect of a house located at Plot number 458, Block A Yombo Vituka, Temeke District, Dar es Salaam Region, pending the institution of the suit against the respondents to be filed after expiry of Statutory Notice of 90 days of intention to sue the government The Appiication was supported by affidavit of the applicants and counter affidavits of the respondents and the reply therein. The same was heard 1 by way of written submissions. The applicant enjoyed the service of FJohnstone Fuigence, learned Advocate. The respondent was represented by whiieZ"'', 3'''', and 4"^ respondents were presented by Adeline Eiisey and Mathew Fuko, state attorneys. The applicant's counsel submitted that he was a guarantor of the respondent to the loan at the 2"'' respondent but he had never been informed on respondents'failure to return the advanced loan to the 2"'' respondent until he met with a letter written to the respondent on 30'"^ December 2022. He directed this Court to the case of Leonila Kishebuka vs Dunstan Novat Rutageruka & 2 others. Land application no 70/2022 where the Court issued Mareva Injunction restraining the respondents from selling or doing anything on the disputed land pending expiration of mandatory statutory notice of 90 days. In reply the 2"^", 3''', and 4"^ respondents cited the case of Atilio versus Mbowe,(1969) HCD 284, and highlighted

the established principles that in order for the case to be granted Injunction: 1. There mustbe serious questions offads orissues to be tried and iikeiihood ofthe appiicant to succeed 2. The appiicant wiii suffer irreparabie ioss which cannot be adequateiy remedied or attained by damages 3. Baiance of inconvenience; that the Appiicant wiii suffer greater ioss than the Respondent ifan order for temporary injundion is notgranted It was their arguments that these conditions were not met. That on the condition of prima facie case, the applicant's submission that the 2""^ respondent wants to sell the applicants house located at Plot No 458, Block A Yombo Vituka which was placed as security by the appiicant as a guarantor of securing the loan at Tanzania Postal Bank Pic Is a prima fade arguable case. He contended that the Court cannot be used as a rubber stamp to allow any Issue by the applicant to be an arguable case. As to the second condition, they submitted that the applicant has failed to state In their affidavit how they will suffer and how damages will be substantially and could never be adequately remedied or atoned for by damages or Injury which cannot possibly be repaired. He reminded this Court that In the case of Christopher Chale vs Commercial Bank of Africa, Misc. Civil Application No. 635/2017, High Court Dar es Salaam the Court accepted the position that Irreparable

loss must not only, be mentioned but adequately proved In the affidavit. As for the third condition established In Atiiio's Case (supra) they submitted that there is nowhere the applicants pleaded that they will suffer greater loss than the respondent If an order for temporary Injunction Is not granted hence they cannot submit In their submission as the same will be regarded as statement from the bar and the same cannot be regarded as evidence. Having gone through the submissions of the parties through their learned counsels, affidavit and counter affidavit for and against the Application, the question for determination Is whether the Application has merits or not. Based on the applicant's chamber summons and the affidavit In support of this Application, It Is clear that, the Instant Application Is In the nature of Mareva Injunction. Mareva Injunctions have been allowed by the Courts on several occasions. The principles governing such Injunctions have been long established In the famous English case of Mareva Companies Naviera SA vs Internationai Buikcarriers SA,(1980)1 Ali ER 213. According to the case, two Issues need to be considered before allowing an Application of Mareva Injunction. First, the applicant's affidavit must show expressly, the intention to institute a case against the government and further that, some steps have been taken to do so, see Salvatory Toyi & 5

Others versus Uvinza District Councii & Another, Misc. Land Application No.72of 2020, High Court of Tanzania at Kigoma,(unreported). In this case, the applicant has clearly stayed their intention to sue the government and have shown their notice to the government for that purpose. Therefore, this condition has been met. Second, if it is justifiable and convenient, the Court will allow the Application as stated in Abdailah M. Maliki & 545 Others versus Attorney General & Another, Misc. Land Application No.ll9 of 2017, High Court of Tanzania at Dar es Salaam,(unreported). In the Application at hand, the applicants have clearly expressed why they need to take the respondents to Court. They have managed to prove the existence of a triable case between them and the respondents. As stated above, the applicants have satisfied the Court to be within the rules governing the grant of a Mareva Injunction. I therefore, see it just and equitable to protect the interests of the parties including the applicant in the case at hand with regard to the disputed landed property. It is for these reasons that I find merits in the Application. The same is allowed. The respondents and any other person working under their instructions, are restrained from disposing by any means, the mortgaged property located at Plot number 458, Block A Yombo Vituka, Temeke District, Dar es Salaam Region, pending the institution of the suit against the respondents to be filed after expiry of Statutory Notice of 90 days of intention to sue the government. U T.N. NEGOHA

JUDGE -k 26/5/2023 O