herbert eliezar liwali vs bay view properties ltd 2022 tzhccomd 13 15 february 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF THE

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL APPL. NO. 110 OF 2021 (Arising from an Arbitration under the Arbitration Act Cap. 15 R.E 2020 and UNCITRAL Rules (as amended in 2010) between Herbert Eliezar Liwali vs.Bay View Properties Limited before Sole Arbitrator Hon. Mihayo J (rtd)) HERBERT ELIEZAR LIWALI........................... APPLICANT

VERSUS BAY VIEW PROPERTIES LIMITED.............RESPONDENT Last order: 24th December2021 Judgment: 15th February 2022

RULING NANGELA, J:., The Applicant has brought this application by way of a chamber summons under section 68(e), 95, Order XXVII Rule 1 and Order XXXVI Rule 6(1) of the Civil Procedure Code, Cap.33 R.E 2019 and any other enabling provision of the Law. The chamber summons, which was filed together with a certificate of urgency, is supported by an affidavit of Mr Hebert Eliezar Liwali, the Applicant, who seeks for the following prayers: 1. That, pending the enforcement of the Final Award dated 411' April 2020 rendered by Sole Arbitrator Hon. (Rtd) Judge Thomas Mihayo, this Honourable Court makes interim orders barring or restraining the Respondent, its Page 1 of 15 servants and or agents from assigning, diminishing, transferring, disposing, alienating, operating or deal with any rentals arising out of the suit property from any of their bank accounts in any Bank in Tanzania.

2. That, this Honourable Court be pleased to make orders opening of an escrow accountdntQ which the monies from the reWal/^7 collected by the^Respohdent\be. . ,„ X deposited pending enforcement of the Awards xw 3. That, /this Honourable Court be a pJeasedxXto gr£nt any other ' \\ ^—.relief^that”it may deem fit to 4k grant. ksThatbeosts of this application be H \A provided for. ''Whenjthe parties appeared before this Court, an order was made that the Respondent should file her counter affidavit on or before 19th August 2021 and a reply thereto should be filed on or before 26th August 2021. The matter was set for a mention on the 30th of September 2021. On the material date, the Applicant enjoyed the services of Ms Violeth Mipawa, learned advocate, holding Page 2 of 15 brief for Ms Madelaine Kimei, learned advocate. Ms Ruwaida Manji appeared, holding brief for Advocate Shehzadha Wall!, for the Respondent. Ms Mipawa informed his Court that all pleadings were complete and prayed that the matter be disposed of by way of written submissions. Ms Ruwaida seconded the prayer and I granted it. A schedule of filing of written submissions was issued and I am glad that the learned/^dvocates for parties duly complied with it. Y> Submitting in support of the application, Ms Kimei **7^. ■ 'M.V . c adopted the affidavit of the Applicant riled in support of this application to form

.pa^^~h^su^missions. She submitted that, the rationalejor me/nteriocutory orders sought by the Applicant is toVprotect the Applicant against J/t \\ \\ ’ substantial loss Of^lue^aQ^alienation resulting from the Respondent's"^buse 'of\jight, for which he could not be adequately^conipensated in damages recoverable in acti^iTthe^unreftainty were resolved in his favour at the impending suit challenging the Final Award. To support her submission, Ms Kimei relied on the cases of Giella vs. Cassman Brown & Co. Ltd [1973] E.A 358; American Cyanamid Co. vs. Ethicon Ltd [1975JA.C 396 and Gujarat Bottling Co. Ltd vs. Coca Cola Company 1995 (5) SCC 545. Ms Kimei submitted further that, in line with the decision of this Court in Atiiio vs. Mbowe [1969] H.C.D Page 3 of 15 No.284, if an injunctive relief is to be granted, the following factors must be satisfied, namely: existence of a prima facie caste, imminent irreparable loss incapable of being atoned by way of damages and balance of convenience. As regards the existence of a prima facie case, she submitted that, the Applicant has demonstrated such a case as there is a Final Award dated 4th April 2020 which awarded against the Respondent.£. She ^submitted, therefore, that, that Final Award is "fin^l'and'binciing" on the parties and becomes enforceablexat trie behest of the Respondent's failure (to heed^to tpe Applicant's demand to A

W comply with the\^Awardr,Zhe Applicant herein has proceeded<^\file'teheH. Final Award for purposes of .XL i .1 'According to Ms Kimei, technically, the pending challenge has not sought annulment of the awarded sums and that, such proceedings could result into either the Final Award being struck out or remitted back to the arbitrator. She contended, therefore, that, the existence of the Misc. Commercial Cause No.27 of 2021 indicates that the Applicant is entitled to the reliefs in the Award, hence, a vivid existence of a prima facie case. Page 4 of 15 To further support her submissions she further relied on the cases of Milo Construction Co Ltd vs.NBC Limited and Sadock Dotto Magai, Commercial Cause No. 105 o 2003 (unreported), Tanzania Tea Packers Ltd vs. The Commissioner of Income Tax and Another, Commercial Case No.5 of 1999 (unreported), and Abdi Ally Salehe vs. Asca Care Unit Ltd, and 2 Others, Civil App. No.3 pf\2012, (CAT) (unreported). As regard the issue of irreparable, loss;<t was Ms Kimei's submission that, irreparable^ loss as per the Blacks Law Dictionary, 9* Edn7’at-4ZZ> means: Tanzania Portland Cement Co Ltd, Civil Ref.No.3 of 2007, (unreported), she contended that, an irreparable loss is loss of such a nature that it cannot be atoned by way of damages regardless of whether they are compensated or not. It was a further contention by Ms Kimei that, the Applicant

is at risk of incurring such a loss as the Respondent being in full control of the suit property, may, among others, attempt to transfer all monies earned from Page 5 of 15 it or fraudulently craft up a scheme aimed at defrauding the Applicant. Besides, it was Ms Kimei's submission that, the contract of lease, which Is subject of the parties' dispute, has not been terminated and the Applicant fears that the Respondent harbours ill intentions to misuse the property in a manner that is irreversible and/or alienate the owner of the landed property. Xj. Finally, as regard the aspect^of balance> of convenience, Ms Kimei relied on the casejokAbdi Ally ¥V Salehe (supra) and submitted that-lowing to the nature of the impending suit, the^Applicant-is^a> weaker party in whole the balance ofzconvenienre\will demand that the application be granted in hisTavour. A '\ A'' She submitted that,Jthe'rRespondent is in control of all affair^ara\managernent of the developed property, including the^leasifig^agreements, financial records and bank accounts in/which the rentals are paid. As such, she \\ contended that, if the orders to maintain status quo are denied, there is a risk that records may be falsified. To support the above submissions, she relied on the case of Valence Simon Matunda (via a Power of Attorney of Musa Yusuf Mamuya vs.Saddallah Phlip Ndossy and 3Others, Msisc. Land Appl.No.55

of 2019 where this Court, Masabo J, held that: Page 6 of 15 "Scrutiny of the prayers in this application and the main suit dictates that it is the Applicant who is likely to suffer more than the Respondent if the Application is withheld." She concluded, therefore, that, considering the above reasoning by Hon. Masabo, J. this Court should also take into account the Applicant's prayers and the reliefs from the Final Award as prima /&c/eev,idenceythat the Applicant is the one who stands to^si^ffervmo[e)than the Respondent if this applicationjsdenied^^^^ Responding to the Applicant's, submissions, the learned counsel for the Respondent, one Shehzada Walli adopted the counter-effidavit of/'Shergia Feizi and (( submitted that^theAApplicant ‘■has not been able to demonstrate hov^the property is in danger by it being under the^^^rol_jo?the;Respondent. For that reason, she urgedithis CodrVtb'-clecline the prayers for an order of temporary injunction. \\ )) Relying on the case of Atilio vs.Mbowe (supra), the Respondent's learned counsel submitted that, the Applicant has failed to demonstrate that he has a prima facie case which is the first requirement if the prayers are to be granted. The Respondent's counsel contended that, Commercial Cause No.27 of 2021 is being contested by Commercial Cause No.35 of 2021, and, for that matter, it Page 7 of 15 is the Respondent who should be said to

have a probable case. As regard the 2nd requirement of there being the risk of irreparable harm, the learned counsel for the Respondent maintained that, the Applicant has as well failed to demonstrate that requirement. It was submitted that, if there is any loss, it is one that can be reimbursed in monetary form. Lastly, it was submitted, as regards balance- of convenience requirement, that, the mere-Tact that the Applicant is a natural person^and^ie ''Respondent an artificial or legal person.^does.^ot^suffice as a legal requirement to grant andnjunctive relief. The Applicant's made^a/reply which I will also consider in the'ceurse^of-.m^deliberations. It is sufficient to state th<rt>thosexare the submissions made by the learned_a)uhsels-foEboth parties and I do appreciate for ., ,/rX\ . .. . .. . them research\on that matter and well prepared submissions^) The question I am called ' upon to address, therefore, if whether I should grant the prayers sought by the applicant or refuse them. In the first place, it is worth noting, that, an injunctive order, be it permanent or temporary injunction is an equitable remedy. It may be for a range of purposes from that of retraining certain actions from being taken, to prevention of interferences Page 8 of 15 of some kind, to furnish preventive relief against irreparable injury or the maintenance of the status quo. See the case of Abdi

Ally Salehe vs. Asca Care Unit Ltd, Ayoub Salehe Chamshama and Kenya Commercial Bank, Civil App. No.3 of 2012, (CAT) (unreported). In the case of SIGORI Investment (T) Ltd and Another vs. Equity Bank Tanzania /limited and Another, Land Case No.56 of 2019, (unreported)it^was pointed out that, if an application^ theJike:^ture is to succeed, the following elements Tnust'be established, namely, that: (i) on the facts alleged, tnere must be a serious questioned be tried by Jttie CcJurt an^ajprobability that the P^anitiff/^plicant will be entitled to ■the reli^zprayed for (in the main (ii) the temporary injunction sought is necessary to prevent some irreparable injury befalling the Plaintiff /Applicant while the main case is still pending; and (iii)on the balance, greater hardship and mischief is likely to be suffered by the Plaintiff/ Applicant if the temporary injunction is withheld than may be suffered by the Page 9 of 15 Defendant/Respondent if the order is granted. (See also Giella vs. Cassman Brown [1973] EA 358). In the cases of Atilio vs. Mbowe (supra), Edu Computres (T) Ltd vs. Tanzania Investment Bank Ltd, Commercial Case No.38 of 2004; as well as Charles D. Msumari & 83 Others vs. The Director General T.H.A, Civil Case No.18 of 1997 (unreported), it was emphasized that, the above key elements which g^ern the granting of the kind of orde^$sought\by the Applicants herein,

must be considered conjunctively and not disjunctively. In the instant^^pliGatidriKthe Applicant has contended that thertabove-t noted ’elements exists and A \\ y laboured to demonstrate them. On the other hand, the Respondentehas^contended that, the Applicant has failed to demonstrate^the^exis^nce of such key elements. From those'dicnbtorhous submissions; the question that needs \\ y to be'xtacked) is whether such elements have been established by the Applicant. It is clear, in my view, and from a general observation of the pleadings, that, the first element which requires that there must be a prima facie question of law to be tried by the Court and a probability that the Applicant will be entitled to relief in the main suit, has been established. Page 10 of 15 In the case of Mrao vs. First American Bank of Kenya and Two Others [2003] KLR 125, the case which I consider to be instructive and persuasive regarding what a prima fade case is all about, the Court observed that:- "a prima facie case in a civil application includes, but is not confined to, a genuine and arguable case. It is a case whiclv on the material presented^to^he court a tribunal properly ducting apparently been infringed by the opposite party^as to call for an’explanatiorror rebuttal from In .the instant application, the fact that there is pendingSn Gouri the Commercial Cause No.27 of (( X\ 2021 (and'also the

Misc. Commercial Cause No.35 of \\ V 2021);<does, in my view, suffice to establish the first element. Those pending matters have issues of law for which parties are called up to address. As regards the second element, as look at the pleadings, I am of the view that, the requirement that there must be an irreparable harm which cannot be mitigated by damages is also satisfied. As I stated herein above, an injunctive relief, as the one sought in this Page 11 of 15 application, may be for a variety of reasons, including, but not limited to prevention of interferences of some kind, to furnish preventive relief against irreparable injury or even need to maintain the status quo. In this present application, the Applicant is seeking to not only protect the suit property from being squandered by ensuring that the status quo of the property and its associated accounts <<4,0^ business transactions are maintained, but also-that, thevsam'e is not misused and the property is kept in^a^man^rlhat is irreversible and/or which does noraliena'te the owner of V the landed property. The last point is<about'the balance of convenience. In a ruling recently (handedydown by this Court, in the A \S ’ ' case of Afriscan\^Const£uetion Company Ltd and Another .vsFAfriscan/T) Group Ltd and 2Others, )L, V Misc. Commercial^Application No. 182 of 2020, \\ (unreported), thjs^Court made it clear that, the

granting \\ v of the^p(|yefs sought in an application like the present one is also propelled by interest of justice and fairness. In that regard, the interest of justice demands that, the Courts should protect the oppressed or the disadvantaged party who may stand to suffer if the orders sought are not granted. From the above premise, and considering that the relief sought is an equitable relief, the interest of justice Page 12 of 15 and fairness would demand that, this Court weighs on the one demand against the other and determine where the 'balance of convenience' lies. Understandably, this application arises from the main suit, the Commercial Cause No.27 of 2021. The suit seeks to enforce an award obtained from an arbitral process while this application is an interim and relates also to the main suit and the properties thafwere and are subject to it. zs. \\ )y Indian Court in the case of Dirk lndia. Pvt. Ltd. VS. Maharashtra State Power Generation Co. Ltd, 2013 (GGLS) (AHC), quite instructive.and'helpful in determining r \\ y where the balance of convenience lies. In that case, the Court (Charachund^Sayo^JJ) held that: zZ^When an interim measure of \\protection is sought .... after an arbitral award is made but before it is enforced, the measure of protection in intended to safeguard the fruit of the proceedings until the eventual enforcement of the award. Here again the

measure of protection is a step in aid of enforcement. It is intended to ensure that enforcement of the award results in a realisable claim Page 13 of 15 and that the award is not rendered illusory by dealings that would put the subject of the award beyond the pale of enforcement." In applying the concept of "balance of convenience" the Court makes all endeavours to protect the interest of the parties by evaluating their interests and how such are to be affected and who will be prejudiced or suffer most. In this instant application, I have no doubt thatx the Applicant stands to suffer most if th^prayers^re not granted. It is from the totality oOhe-abjave pfind that, the factums of prima /^c/^ase^irreparable loss and injury, and balance of convenience, have been all found to be in favour of the Applicant herein. In view of that, this Court J} settles for the following orders: Is hereby granted. 2>The Respondent, its servants and or agents is hereby barred or restrained, from assigning, diminishing, transferring, disposing, alienating, operating or dealing with any rentals arising out of the suit property from any of their bank accounts in any Bank in Tanzania. Page 14 of 15 3. That, this Court hereby orders the Respondent and the Applicant to jointly and within a month from the date of this ruling, open an escrow account into which the monies from the rentals collected by the Respondent be deposited pending the finalization of all proceedings regarding the enforcement and or challenge of the Award.

4. That, costs of this Application to be borne by the Respondent. It is so ordered. DATED at DAR-ES-SALAAM, THIS 15™ DAY OF FEBRUARY 2022 Page 15 of 15