hussein abdulkarim vs crdb bank public limited company 3 others 2022 tzhclandd 12523 24 october 2022

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

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 192 OF 2022 (Arising from Land Case No. 90 of 2022)

HUSSEIN ABDULKARIM APPLICANT

VERSUS CRDB BANK PUBLIC LIMITED COMPANY 1^ RESPONDENT

NASRA HUSSEIN ABDULKARIM @ NASRA ABDALLAH MOHAMED 2'^'' RESPONDENT

AHMED HUSSEIN ABDULKARIM T/A KISHAN INDUSTRIES 3^ RESPONDENT YONO AUCTION MART 4™ RESPONDENT Date of Last Order; 03.10.2022 Date of Ruling; 24.10.2022

RULING V.L. MAKANI.J. The applicant HUSSEIN ABDULKARIM Is praying for orders of temporary injunction against the defendants. He has moved this court by way of a Chamber Summons under Order XXXVII Rule 1(a) and 2(1) and sections 68 (e) and 95 of the Civil Procedure Code CAP 33 RE 2019 (the CPC). The application is supported by the affidavit of the applicant herein. The 1^ and 2"'' respondents filed their counter- affidavits to oppose the application herein, however, the 3'"^ and 4^^ respondents did not enter appearance or file counter-affidavits though they were duly served. The application therefore proceeded ex-parte against them. Mr. Rashid Juma Kasisiko, Advocate appeared for the applicant, and during the hearing, which proceeded orally, he adopted the contents of the affidavit of the applicant. Mr. Kasisiko gave a brief background of the matter that the 3'"^ respondent took a loan from the respondent herein (the Bank)and the 2"^ respondent guaranteed the said loan. He said in 2020 the loan was disbursed in three phases. He said there was a variation in April, 2021 and another one in 29/07/2021. He said that the exhibits show, that the house is a matrimonial house between the applicant and the 2"^ respondent herein. He said once a house is a matrimonial house there must be consent in the taking of a loan by the spouse. He said Annexure CRDB 3 in the Written Statement of

Defence shows that consent on the third variation was by Hussein Abdui Karia who is not the spouse of the 2""^ respondent and it is the Bank and the borrower who knows the said spouse because the applicant never consented to the variation. He said the applicant has interest and right over the matrimonial home which is security to the loan. He said if the sale of the property proceeds, the applicant would suffer as this is his matrimonial home, as per paragraph 11 of the affidavit, which loss cannot be atoned to payment of damages as the suit property is a family home and members of the family would remain homeless. He said the basis of the submission are on the conditions set out in the case of Atilio vs. Mbowe[1969] HCD 284. He said the arguments are valid to warrant the intervention of the court to grant injunction pending the main suit. Mr. Chiro, Advocate representing the Bank prayed to adopt the counter-affidavit that was sworn by the Principal Officer of the Bank. He said there are principles that are set out in the case of Atilio vs. Mbowe (supra). He said the first condition is a triable issue and according to the affidavit, the applicant concedes that a loan was taken by the 3'''' respondent and the 2"'' respondent guaranteed the said loan. But the only issue advanced by the applicant is that there was no consent. He said in paragraph 4 of the Counter-affidavit

it reflects that there was consent in the first loan 09/04/2020 and the variations of 29/07/2021 and 09/09/2021. He said the fact that the 2"'' respondent brought the consent meant that the procedures were adhered to. The guarantor, the Z"'' respondent was obligated to bring the consent and she did so. He relied on the cases of Jane Samson Kuja vs. Samson Mtawala Kuja & Others, Misc. Land Application No. 585 of 2015 (HC-Land Division) (unreported) and aiso Fatuma Mohamed Salum & Others vs. Lugano Angetile Mwayosi Jengela & Others, Misc. Land Application No. 90 of 2015 (HC-Land Division) (unreported). He said the cases quoted section 8(3) of the Mortgage Financing (Speciai Provisions) Act No. 17 of 2008(now Section 114 of the Land Act CAP 113 RE 2019). In that respect there was consent so there is no triable issue. As for the second principie of irreparable loss Mr. Chiro said it is obvious that the borrower defauited, and he requested for rescheduling, and he was given that opportunity, but he failed to make good the payments of the loan. He was aiso reminded by demand letters and also statutory notice of 60 days but despite the reminders the loan was not repaid. He pointed out that it is the Bank that is suffering ioss because the ioan has already been given out and the default is continuing to give loss to the Bank which will fail to operate itself. He relied on the case of

Mohamed Iqbal Haji & Othes vs. Zedem Investment Limited & Others, Misc. Land Appiication No. 5 of 2020 (HC-Division)(unreported) and also Jane Samson Kuja (supra) and Generai Tyre EA Limited vs. HSBC Bank Pic[2006]TLR 60. On balance of convenience Mr. Chiro said the Bank is the one that is inconvenienced because peopie tend to take ioans iegaiiy but when they default, they come to court to seek for injunctions as a cover so that the ioan cannot be repaid, and the banks are barred from any recovery measures. He reiied on the case of Mohamed Iqbai Haji (supra) and Fatuma Mohamed (supra) which quoted the case of Charies Msumuri & 33 Othes vs. Director of Tanzania Harbours Authority, Civii Appeai No. 18 of 1977(HC-Tanga) (unreported). He said the grant of the injunction does not consider oniy one principle, but all the principles set out must be satisfied. He stressed that the cases in respect of the temporary injunction has not been satisfied by the appiicants. He said the application has no merit and it ought to be dismissed with costs as it has faiied to meet the principies of temporary injunction set out in Atilio vs. Mbowe (supra). The Z"'' respondent adopted the contents of her affidavit. Being a layperson, she did not have anything useful to say but that the house which is security is the one which they are currently living and they think if they get the time they can repay

the loan. She said the house is the only property. In rejoinder Mr. Kasisiko said the case of Fatuma Mohamed Salum and Jane Kuja (supra) all talk of consent but they are distinguishable because in the present case, the applicant is not the one who gave consent but It was Hussein Abdul Karla. He said this is a triable issue for the court to investigate and make a decision. He said it Is the 2"=" and 3'''' respondents who benefitted from the loan and not the applicant who also have interest in the matrimonial house. On balance of convenience, Mr. Kasisiko said, the Bank has the Certificate of Title, and she will not suffer because the subject matter is stili under her custody. He emphasized that the application before the court is not to suppress the Bank's right but to ensure that the loan transaction was lawful. He said the right should not be assessed from one side but also from the applicant's perspective as he too has the right over the property. He reiterated his prayer for the grant of the appiication. The conditions for grant of a temporary injunction are laid in the case of Atilio vs. Mbowe (supra) in which it was held that, the plaintiff/applicant has to establish that there is a prima facie case, a balance of convenience, and that he will suffer irreparable injury if the injunction is refused. All these three conditions must be met before a temporary injunction can be

granted. The granting of such an injunctive reiief is one of discretionary nature but has to be exercised judicially upon satisfaction of the principles governing such reiiefs. I have listened to Counsel and the Z"'' respondent herein and have gone through the affidavit and counter-affidavits filed in court. The main issue for determination is whether the applicant has met the three conditions stated above. In paragraph 10 of the affidavit, it shows that there is Land Case No.90 of 2022 pending in this court in which the applicant is questioning the validity of the mortgage transaction between the Bank, the 2"'' and respondents and seeking in the piaint for the mortgage to be deciared nuii and void because there was no consent from the applicant. This relief is capable of being awarded by the court and in my view where the whole transaction of issuance of mortgage is questionable then a prima facie case has been established in satisfaction of the first principie laid in Atilio Mbowe's case (supra). On the principle of irreparable loss, the applicant has contended that the house that has been offered as security is a matrimoniai home and if it is sold it wiil render the famiiy homeless. The 2"'' respondent also confirmed that they stiil reside in the same house. Indeed, if the house is auctioned then the applicant and family will face Irreparable loss,as opposed to the Bank who

are secured as they still have the Certificate of Titie in their possession. In that regard, if an order for temporary injunction is not granted the applicant would suffer Irreparably as the family would be destabilized and the property may not be easily recoverable If it passes to a third party before the main suit is concluded. The test for irreparable loss has therefore been met. On balance of convenience, it is apparent that if the temporary injunction is not granted the applicant would suffer greater hardship. As said above, the house is famiiy house and the appiicant, and his famiiy still resides in the said house. The baiance therefore tiits in favour of the appiicant. Since ail the three principles for grant of temporary injunction have been satisfied, then this warrants the court to exercise its discretion in the grant of the order of injunction. In view of the above, the appiication for temporary injunction is hereby granted. The respondent, her agents, work persons or any other person working under her instructions are prevented from taking possession, issuing order of any nature on effect to the property, disposing and/or auctioning the ianded property under Certificate of Titie No. 84309, Piot 137/1, Biock"R", Magomeni Area, Dar es Salaam pending the hearing and determination of Land Case No. 90 of 2022. Costs to foiiow events. It is so ordered. a OO/w- H V.L. MAKANI 3k- JUDGE 24/10/2022