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THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 26422 OF 2024 CASE REFERENCE NO. 202410221000026422 HYUNDAI EAST AFRICA LIMITED............................................... 1st APPLICANT F.K MOTORS (T) LIMITED............................................................ 2nd APPLICANT Versus EQUITY BANK (TANZANIA) LIMITED................................................................ 1stRESPONDEN NUTMEG AUCTIONEERS & PROPERTY MANAGERS CO. LTD.............2Nt) RESPONDENT TAIFA GAS TANZANIA LIMITED......................................................................... 3rdRESPONDEN REGISTRAR OF TITLES........................................................................................ 4thRESPONDEN ATTORNEY GENERAL........................................................................................... 5thRESPONDEN RULING 18/11/2024 & 19/12/2024 GWAE, J Before me is an application for Mereva Injunction pending expiry of ninety (90) day Notice served to the Registrar of Titles and Attorney who are 4th and 5th respondents herein. The applicants named herein have brought the application under section 2 (1) and (3) of the Judicature and Applications of Laws Act, (Cap 358, Revised Edition, 2019) and section 95 and Order XLIII Rule of the Civil Procedure Code, Cap 33, Revised Edition, 2019 (herein " the 1 CPC). Through their chamber summons, the applicants are praying for the following orders; 1. That, this Court may be pleased to issue a temporary injunctive order (Mareva Injunction) restraining the respondents, their agents, assignees and or workmen from entering into or evicting from, harassing or interfering in any manner whatsoever the 2nd applicant's land property situated on Plot No. 62 Kiwalani Pugu Road Industrial area within Dar es salaam with certificate of Title Number 46263 (suit land) pending expiry of expiry of 90 days statutory notice to sue the Government. 2. That, the padlocks placed in some of the offices and warehouses be removed forthwith 3. Costs of this application be provided for and 4. Any other and further reliefs as this Court shall deem fit and appropriate to grant. Perhaps it is pertinent to have brief factual background of the parties' saga. It was in the year 2018 when the 1st applicant and 1st respondent herein entered into loan agreement and subsequent to disbursement of the first loan facility, the loan was subsequently restructured that was in 2020. However, on 6th December 2023, the demand notice was issued to the 1st applicant and sequel to the 1st respondent's issuance of demand notice, the 1st applicant received SMS through his mobile phone demonstrating that, 2 Tshs. 131,000,000/= and USD. 50,000.00 have been deposited to her account and that she eventually became aware that there was an auction of the 2nd applicant's mortgaged property described Plot No. 62 L.O 167786- Kiwalani Pugu Road Industrial area Dar es salaam with Certificate of Title Number 46263 (CT) after the advertisement through Zanzibar Leo dated 11th April 2024 for closed bid tender. It is the contention by the applicants that, the alleged conducted auction by the 2nd respondent who acted under instruction of 1st respondent has serious irregularities including, but not limited to, failure to issue the applicants with demand notice, failure to issue notice to bidders to attend to the auction and date and place of the auction were not disclosed. Another alleged irregularity, is the fetched bid price of the 2nd applicant's mortgaged property paid by the 3rd respondent, Taifa Gas Tanzania Limited being under the market value as per valuation report of July 2021 as well as the valuation Report dated 21st June 2024. Following the alleged auction by way of a closed bid tender, the applicants have filed this application for Mareva Injunction since 90 days statutory notice has not expired to justify them institute a land case after the former one filed before the Court on 3rd July 2024 vide Land Case No. 15806 3 of 2024 being struck out on 27th September 2024 as well as the applicants' application of this nature due to a legal anomaly namely, failure to join the Registrar of Titles. The applicants' application is supported by affirmed joint affidavit of Mohamed Karmali and Salim Karmali. The essence of the applicants' affidavit is on what transpired since 2018 when the 1st and 1st respondents entered into the loan agreement and how the 2nd applicant mortgaged his property on Plot No. 62 Kiwalani Pugu Road Industrial-DSM area in favour of the 1st applicant as security for the loan to the 1st respondent as per Mortgage Deed executed on 2nd September 2022. Similarly, the affidavit is on the grievances on the part of the applicants as to the alleged auction conducted by the 2nd respondent working under instruction of the 1st respondent as earlier explained. It is also through their joint affidavits, the applicants lucidly state that, they stand to suffer more inconveniences than the respondents, if this application is not granted as the respondents will be, at liberty to forcefully evict them from their business premises. On the other hand, this application was strongly resisted by the respondents through their respective counter affidavits. The 1st respondent and 2nd respondents filed their joint counter affidavit whose effect is that, 4 the 1st applicant defaulted repayment and she was subsequently served with default notice of sixty (60) days dated 30th November 2023 as well as the fourteen (14) days' notice. According to the 1st and 2nd respondents, all procedures required by the law were accordingly complied with and that, the sale of the mortgaged property was at the price commensurate with legal requirements. On his part, the 3rd respondent who successful bid to the sale of the mortgaged property filed her counter affidavit duly sworn by her Managing Director one Devis Deogratius. Principally, the 2nd respondent is found contending to have lawfully purchased the suit property. She thus stated that, she is the current lawful owner of the said premises duly recognized by the Registrar of Titles since 18th June, 2024 after she was registered as the owner of the suit property of the 50% shares previously held by the 2nd Applicant and the remaining shares are owned by Athwals Transport and Timber Limited since 5th March 2021. The 3rd respondent finally stated that, the applicants have failed to give adduce reasons to enable the court to grant the orders sought since she is already in possession and occupation of the suit premises since 21st September 2024. 5 Similarly, the 4th and 5th respondents supported the 3rd respondent's assertions through their joint counter affidavit sworn by Mr. Mathew Fuko, the learned state attorney. According to them, to the records from the office of the Registrar of Titles, it is plainly revealed that, the 3rd respondent is the lawful owner of the suit land, which was initially mortgaged by the 2nd applicant to the 1st respondent adding that as the transfer has been effected, the 3rd respondent has therefore an absolute access to her property, which she purchased. As there was allegation on the part of the applicants that, they were properties belonging either to them or to their clients that are still within the said suit land, court's leave was sought and obtained to file supplementary affidavit and the 3rd respondent was similarly granted leave to respond thereto. In their supplementary affidavit sworn by Mr. Mohamed Karmali, the applicants have stated therein that, they are movable assets in the suit property as the same was being used as a showroom, garage, offices, and TRA bonded warehouse. They enlisted some of assets as per inspection dated 1st November 2024. The list of movable assets found in the suit property includes; two computers containing inter alia data base of all spares 6 and motor vehicles, which were either in mechanical repaisr or maintenance and five motor vehicles in bonded house under the control of Tanzania Revenue Authority (TRA). The applicants supplemented that, the 4th respondent wrongly allowed transfer of the ownership from the 2nd applicant to the 3rd respondent as there was a caveat filed in his office and registered on 14th May 2024. The applicants also added that, apart from them, the inconveniences are extended to the suppliers and customers who are now suffering irreparable loss. Before me, the applicants appeared through the legal services of Mr. Joseph Mutahyabarwa, learned advocate practicing as Prime Advocates whereas advocate Benard Aloyce Chuwa appeared for the 3rd respondent. Equally, Mr. Sosten Mbedule, the learned advocate appeared for the 3rd respondent and Mr. Hemed Said, the learned state attorney appeared for the 4th and 5th respondents. However, hearing of the application proceeded by way of written submission. It is their submission by the applicants' advocate that, the transfer of ownership is illegal and that 3rd respondent's moves and that of her agents are to forcefully evict the applicants from the premises is calculated to disrupt and paralyze their day to day activities. To bolster his argument that this 7 application is properly before the Court, Mr. Mutahyabarwa cited the foreign jurisprudence in the case of Mareva Compania Naviera S.A vs. International Bulk Carriers S.A (1980) 1AER, where the term "Mareva Injunction" is derived from, signifying that injunctive orders may be granted even in a situation where no case is pending in courts provided that, there is a demonstration of prima facie case. He went on mentioning the three principles or conditions which justify a court of law to entertain this kind of application namely; one, that, there must be a prima facie case or triable issue between the parties. Two, the applicant must show that he stands to suffer irreparably if the application is not granted as prayed and three, applicant must show that, the balance of convenience lies in favour of the applicant. He urged this court to refer to the case of Atilio vs. Mbowe (1969) HCD 284. Insisting that there is prima facie case, the applicants' counsel argued that, the 1st respondent is alleged to have breached the loan agreement and that, there was unlawful sale and transfer of the ownership. He cited the decision of this court (Msafiri, J) in Henron Yusuph Kikoti and 2 others vs. TCB Bank PLC and 2 others, Miscellaneous Land Application No. 273 of 2023, whose ruling dated 18th July 2023 insisting existence of bonafide 8 dispute, arguable case, which requires investigation and decision and that there is probability of the applicant to be entitled to reliefs claimed in the main matter. Regarding the 2nd condition herein, Mr. Mutahyabarwa submitted, the anticipated loss cannot be compensated including long term loss of the customers taking into account that the 1st applicant is the sole importers and distributors of Hyundai motor vehicles in our country and that, the applicants' economic survival is dependent on the disputed property. To buttress his submission, he referred the case of Mureith vs. City Council of Nairobi (1976-1985) EA 331 (CAK) where it was held; "The object of interlocutory injunction is to protect the plaintiff against an injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial." As to the third condition, it is the submission of the learned counsel for the respondent that it is the applicants who will suffer greater inconvenience if this application is not granted than the respondents due to the nature of business as aforestated and considering the fact that the applicants have 50 specialized employees. 9 In their reply submission, the counsel for the 1st and 2nd respondent admittedly stated that, the principles established in Mbowe's case (supra) are binding in the application at hand. However, he stated that the first condition has not been met through the applicants' affidavit and its annextures as the balance of proof lies on them and that, the court cannot go into detail. According to Mr. Chuwa, the parties' pleadings do not presuppose the existence of a prima facie case as there is no dispute that there was loan agreement, mortgage deed and that the applicants' allegation is based on the breach of promise, which is purely contractual issue and not land related matters. On the second condition, it was the reply submission of Mr. Chuwa that, there is no arguable case or likelihood of applicants' success in the intended suit since the 1st respondent herein exercised his statutory right as provided for under section 126 of the Land Act, Cap 113, R. E, 2019 after the 1st applicant's default to service the loan. As to the third condition for grant applications for injunctive order, balance of convenience. It is the view of Mr. Chuwa that, it is the 1st respondent who stands to suffer more damages by granting this application as taking into account she plays an important role in the national economic io development. He further argued that the applicants' submission that, they their economy is solely dependent on the business where the suit land is located is nothing but a mere statement from the bar since the same is neither pleaded in the applicants' affidavit nor in the supplement affidavit. He invited the Court to the case of Tina & Co. Limited and others vs. Eurafican Bank T. Ltd (Civil Application No. 86 of 2015) [2016] TZCA 744 (29 January 2016). In his style of, Mr. Mbedule submitted that, this application has been overtaken by event since the orders sought in the chamber summons, especially in the applicants' prayer (1), have been overtaken by event since 21st September 2024 as especially prayer (1) and since the 3rd respondent has already been in occupation of the suit property. He went on submitting that nothing can be granted by the court as lucidly admitted by the applicants through paragraphs 27 and 29 of the joint affidavit and paragraph 6 of their supplementary affidavit. He finally invited the Court to make reference to the decision of the Court of Appeal in the case of Shabir Ebrahim Bhaijee and 2 others vs. Selemani Rajabu Mizino and Another, Civil Application No. 40 of 2007 (unreported) whose ruling was delivered on 21st day of December 2007. ii As to the merit of the application, it is the submission of the 3rd respondent's counsel that, the requisite criteria for granting the application at hand have not been established as rightly enunciated in the case of Atilia (supra). According to Mr. Mbedule, the prima facie condition has not been established due to; one, that, the Applicants acknowledge that they had taken a loan from the first respondent as reflected at paragraph 3 of the Applicants' Joint Affidavit. Two, that, the Applicants acknowledged to have mortgaged the suit property in favour of the 1st respondent. Three, the applicants' acknowledgement that, they have breached terms of the loan agreement by defaulting to pay the loan. Four that, the applicants' acknowledgement that, the 2nd applicant's ownership of 50 % of the suit property and that, the suit land has already been transferred into the 3rd respondent's name and in terms of protection under clause V (5:02) of the mortgaged deed executed by the second applicant and first respondent on 2nd September 2022. Similarly, the counsel for the submitted that, the applicants have failed to meet the second condition that, they stand to suffer irreparable loss since they have not attached any supporting documents such as motor vehicle cards, business license, showing the suit property is still used as warehouse 12 bondage under the TRA adding that, if was so, the TRA could make follow ups to that effect. It is also the submission by Mr. Mbedule that, it is the 3rd respondent who will suffer more than the applicants if the orders for Mareva Injunction are granted since the disputed premise has been under the occupation of her since 21st September 2024, which is currently registered in her name. He urged the Court to refer to Salum Mateyo vs. Mohamed Mateyo (1987) TLR 111. The learned counsel for the fourth and fifth respondents, on his part, reiterated what is contained in his counter affidavit and what his fellow counsel submitted. He however added that, in order to have an application for injunctive order granted, three co-existing requisites must be established in other words, all three conditions must be cumulatively proven. He referred to Tanzania Breweries Limited vs. Kibo Breweries Limited and Another (1998) EA 341, Abdi Ally Salelhe vs. ASAC Care Unit Limited and two Others, Civil Revision No. 3 of 2012 (unreported-CAT) Tanzania Breweries Limited vs. Kibo Breweries Limited and Another (1998) EA 341). 13 Now to the court's determination on two (2) issues, one, whether this application is overtaken by event and two, whether the applicants have established three conditions cumulatively for grant of Mareva Injunction as sought. In the first issue, it is clear from the applicants' application that, the 90 days Statutory Notice was issued to the 4th and 5th respondents pursuant to section 6 (2) of the Government Proceedings Act, Cap 5, Revised Edition, 2019 on 30th September 2024. Hence, the 90 days period has not expired. It is also evidently clear that, from the applicants' prayer (1) in chambers summons is, temporary order restraining the respondents or their agents or any other person acting under their instructions, from entering into or evicting, harassing or interfering in any manner whatsoever the second applicant's landed property (suit land). That being the prayer by the applicants, the essence of the application is to restrain or prevent the respondents or their agents from interfering with the suit land including but not limited, entering into or evicting the applicants and their workmen from therein. According to the joint affidavits of the applicants at paragraph 27 and 29, it is revealed that, the 3rd respondent has 14 certainly evicted the applicants and has locked the suit premises and employed some security guards in the suit land. In my firm view, the third respondent has already entered into the suit property, evicted the applicants and their workmen and assumed actual possession of the suit property to date. Similarly, it is plainly clear and established by both parties, that the third respondent has purchased the suit property and been registered as the owner of the suit since 18th June 2024 at 3:23 PM by the 4th respondent (See copy of the Certificate of Title-FKl and HESL-4). That being the position, at this juncture, I cannot thus go into detail ascertaining on, whether there were serious irregularities or not, in the auction of the suit property as alleged by the applicants through their affidavits. The Court of Appeal of Tanzania in Felix Emmanuel Mkangwa vs. Andrew Kimwaga, Civil Application NO. 249 of 2016 (unreported), whose ruling was delivered on 9th June 2020 and I quote; "It is therefore our considered view that the circumstances in respect of which the stay of execution was sought by the applicant in this application have gone beyond the stage at which a stay order would meaningfully serve any purpose to restrain the respondent. The application has been overtaken 15 by events. Whenever it is shown that the application will no longer serve the purpose it was intended to or that an application has been overtaken by events, the Court has in a number of cases dismissed such application." See also the case cited by the counsel for the third respondent in Shabir Ebrahim Bhaijee and 2 others vs. Selemani Rajabu Mizino and Another, Civil Application No. 40 of 2007 (unreported), a decision of the Court of Appeal. Although in the above cited cases, the applications were aimed at staying execution as opposed to the present application, which is for Mareva Injunction, yet the principles laid down are relevant as both application serve the same purpose namely; restraining the respondents from doing certain act (s) pending hearing and determination of a suit or an appeal. Granting this application is just to water down or erode the whole purpose of issuance of injunctive orders. Without much ado, I am greatly persuaded that, due to the acts done by the respondents so far, the applicants' application for Mareva Injunction is not maintainable as the same has been overtaken by event. 16 Despite the above holding on the maintainability or otherwise of the application, which presuppose not to be curtailed determining the merit ot or else of the application but I find it is apposite to do so. I am fully convinced by the submissions by the parties' counsel that, courts' grant or refusal to grant an injunctive order is dependent on the three conditions precedent as correctly articulated in Atilio Mbowe's case (supra). I am increasingly of the view that, the applicants may have triable case or arguable case, which is to be instituted after expiry of 90 days' Statutory Notice as required by the law as opposed by the 2nd condition on irreparable loss. However, I am not convinced if the applicants stand to suffer irreparable loss by either the 1st respondent or 3rd respondent. In the circumstances of this particular, I feel compelled to fully subscribe to, as have no reason to differ from that holding, Mwakeye Investment Ltd vs. Access Bank Tanzania Limited, Misc. Land Application No. 654 of 2016, High Court (Makuru, J), where the Applicant prayed for an injunction order of the Court, in her ruling dated 28th August 2018 refusing to grant the same at page 5 held and I quote;- "(?/7 irreparable loss, the Applicant's counsel submitted that, if the order for temporary injunction will not be granted the Applicant will suffer loss as a result of the sale and transfer of the property to the third party and they will eventually be Y1 evicted. I am of the view that this cannot be said to be irreparable loss because it can be compensated by monetary terms. Hence, the Applicant has not met the second principle established in AtiHo 's case". Furthermore, in Sohoni's Law of Injunction, Second Edition, 2003, the learned author at page 93 stated that:- "As the injunction is granted during the pendency of the suit, the court will interfere to protect the plaintiff from injuries which are irreparable. The expression "irreparable injury" means that, it must be material on which cannot be adequately compensated for in damages. The injury need not be actual but may be apprehended." See also T.A Kaare vs. General Manager Mara Corporative Union (1987) TLR 17. Guided by the judicial decisions quoted above and pleaded facts aforesaid, I do not find any clue justifying me to hold that, the 1st and 3rd respondents will not be in a position to adequately compensate the applicants in the event, they emerge victory in an action (s) against them. That means, there is no irreparable loss on the part of the applicants that, 18 can be easily apprehended as rightly submitted by the 3rd respondent's counsel. I have further considered the fact that, the 3rd respondent is currently in occupation of the suit property and the suit land is now registered in her name. In my view, granting the sought injunctive order in favour of the applicants in respect of landed property that has not been proved to be owned by the third respondent or whose auction conducted on 26th April 2024 has been nullified by the competent court or quasi-judicial body, will bring more inconveniences to the 3rd respondent. Hence, in my considered view, the 3rd condition on the balance of convenience is consequently determined in favour of the third respondent. Perhaps before I type off, I would like to respond to the submission by the 3rd respondent's counsel that, if the Applicants persistently insist that, the third Respondent has locked their properties in the suit premises, then they should file a suit and prove such claim and upon success, they can retrieve them legally by way of execution. With due respect with the learned counsel, I do not think what is suggested by him is a right course. This court by virtue of section 95 of the CPC has inherent power. Section 95 reads;- 19 "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 ofjustice or to prevent abuse of the process of the court." In our instant application, the applicants have lucidly stated that, their movable assets are locked within the suit land and their avowal is proven by the verification of the same done on 31st October 2024 pursuant to the court order dated 30th October 2024. The said movable assets are as enlisted in the supplementary affidavit electronically filed on 6th November 2024. It is my view, that, if such movable properties including those owned by other persons especially motor vehicles brought therein for mechanical repair or maintenance purpose, that move will certainly cause unnecessary and avoidable damages. Henceforward, it is more justifiable if the same are removed from the suit land in favour of the applicants for safe keeping or handing over to their owners. In the final analysis, this application is struck out for being overtaken by event. Even if the application would be determined on merit the same could not be granted by the Court as the applicants are found to have failed 20 to cumulatively prove existence of the three requisite conditions for grant of the sought Mareva Injunction. Nonetheless, by virtue of section 95 of the CPC, I hereby order that, all movable assets, not attached to the suit land and which are belongings of the applicants or their clients/customers be temporarily removed from the suit land pending hearing of the intended institution of a lawsuit in order to prevent them from being damaged. In the circumstances, of this matter, I order that, each party shall bear his or her costs of this application. It is so ordered DATED and delivered at dar ES salaam this 19th December 2024 21