Issa Kavina scanned

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

AT DAR ES SALAAM MISC. LAND APPLICATION CASE NO. 17261 OF 2024 ISSA HAMAD KIVINA......... ....................................................... APPLICANT

VERSUS EQUITY BANK (TANZANIA) LIMITED...................................................... 1stRESPONDENT CITYLAND COMPANY LIMITED............................................................... 2ndRESPONDENT

QWIHAYA GENERAL ENTERPRISES COMPANY LIMITED.................................................................................. 3rdRESPONDENT

RULING lf)h October & 12th November, 2024 L. HEMED, J. There is a pending suit before this court between the parties registered as Land Case No. 16771 of 2024. The subject matter to the said case is the landed property situated on Plot No. 11 and 12 Block 'J', Ilala, Dares Salaam, comprised under certificate of Title No. 105639 and 102220. While the main suit is still pending, the Applicant presented this application under sections 68 (e), 95 and Order XXXVII Rules 1(a) & 2(1) of the Civil Procedure Code, [Cap 33 RE 2019] seeking for an order that the respondents be restrained from interfering with his peaceful enjoyment of his landed property pending final and conclusive determination of the main suit. In his affidavit to support the application, the Applicant has averred that in August 2018, the 1st Respondent advanced to him jointly with one Fatuma Issa Kivina, a loan facility of TZS 1,600,000,000/=. That, according to the facility letter, the loan was secured by the first legal charge and first legal mortgage over the suit landed property. It was also to be secured by a deed of assignment of rental income in respect to the building erected over the suit properties, as well as an irrevocable undertaking by Chama cha Mapinduzi (CCM), to remit proceeds of all accounts payable with the 1st Respondent. The Applicant asserted further that since the year 2018 when the loan was

advanced, he was dully servicing it. However, in some few occasions, he could not timely remit loan repayments due to the fact that C.C.M delayed to make payments as agreed. Due to the said intricacies, the 1st Respondent agreed to restructure the loan in terms of the monthly payable amount as well as the loan tenure. Nevertheless, sometimes in March 2024, the Applicant learnt that the 1st Respondent had blocked the account that he could not service the loan. 2 The Applicant has contended further that sometimes later, he discovered that the suit landed property was sold to the 3rd Respondent and ownership of the same has been transferred into the 3rd Respondent. He disputes to be indebted to the 1st Respondent at the sum of TZS 1,341,811,434.78/= alleged by the 1st Respondent. The Applicant stated to have been served with a 30 days' notice to vacate the suit premises, contending that, upon lapse of the said period, the 2nd Respondent shall forcefully evict the Applicant from the suit property. The Applicant insisted that he will suffer irreparable loss if evicted from the suit landed property. The respondents resisted the application by the counter affidavit of Mgisha Kasano Mboneko, the Principal Officer of the 1st Respondent and Leonard Igaga Mahenda, the Principal Officer of the 3rd Respondent. Hearing of the application was by way of written submissions. Mr. Deogratius

Ogunde, learned advocate acted for the Applicant, the 1st and 2nd respondent were represented by Mr. Karoli Valerian Tarimo, Advocate. The 3rd Respondent enjoyed the legal service of Mr. Magusu Mugoka, learned advocate. 3 I have gone through the rival submissions and the question for determination is whether the application is meritorious. In determining the merit of the matter, I will be guided by the condition for granting temporary injunction. These conditions include likelihood of success irreparable injury and balance of convenience. In our jurisdictions, the conditions for granting temporary injunction were amplified in the case of Atilio vs Mbowe (1969) HCD No. 284 thus: - "(i) There must be a serious question to be tried on the fact alleged, and the probability that the plaintiff will be entitled to the reliefprayed. (ii) The applicant stands to suffer irreparable loss requiring the courts intervention before the applicant's legal right is established. (Hi) On the balance of convenience, there will be greater hardship and mischief suffered by the plaintiff from with holding of the injunction than will be suffered by the defendant from granting of it." Starting with the first condition, that is, existence of serious question to be tried, it is without doubts that the Applicant has presented before this court Land Case No. 166771 of 2024 challenging among others, the sale

of 4 the disputed property. The presence of the said Land Case before this Court is a primafacie proof that there is a triable issue between the parties. The circumstance of this case clearly shows that the 1st condition has been met. Turning to the 2nd condition, the Applicant was supposed to state what irreparable injury he will suffer in case the restraint order is withheld. In the affidavit that support the application, the Applicant appears to state the purported loss in paragraph 19 thus: - "19. That, I shall suffer irreparable loss if forcefully evicted from the suit premises by the Tfd Respondent under the instructions of the 1st and 3fd Respondents, given the fact that I did not default or fail to repay the loan since any delay was justified and well known to the 1st Respondent; I was never served with the default notice by the 1st Respondent; the 2fd Respondent never issued or served me a fourteen (14) days notice; the suit premises were sold below the market price; the 3d respondent is not a bona fide purchaser and title over the suit premises never passed to the 3d Respondents; hence, the Applicant shall suffer double jeopardy and unlawfully be deprived ownership of his landed property." 5 In Giella vs. Cassman Brown and Co. Ltd [1973] E.A 359 the court insisted that for the court to grant restraint orders, the Applicant must have have demonstrated the possibility

of him to suffer not only loss rather, irreparable loss which would not adequately be compensated by an award of damages. According to the affidavit deponed by the Applicant in paragraphs 12, 13 and 14 the suit premises have already been sold and transferred to the 3rd Respondent. In other words, the current status stands that the 3rd Respondent is the registered owner of the suit landed property. In his chamber summons the Applicant is praying this court to restrain the respondents from interfering with the peaceful enjoyment of the suit landed property. However, he has not specifically stated what kind of the said interferences, the respondents are intending to cause to the Applicant. I have also revisited paragraph 19 of the supporting affidavit and found him not specifically stating the type of irreparable loss is going to suffer in case the order is withheld. By merely stating that the Applicant will suffer irreparable loss in case the order is not granted, without specifically revealing out such kind of loss is as good as failure to establish irreparable loss. 6 In my firm view, the Applicant ought to have said, for instance, he is going to lose shelter or home in case the court refuses to grant the order sought. From the foregoing, it is obvious that the Applicant has failed to demonstrate irreparable loss he will suffer in case the court opt not to grant the prayer

sought. This being the case, the Applicant has failed to meet the 2nd condition. It is trite law that for the court to grant an application for injunctive orders, all three conditions in Atilio vs Mbowe (supra) must be met cumulatively. This was also insisted in Christopher Paul Chale vs. Commercial Bank of Africa, Misc. Civil Application No. 635 of 2017, thus: "... the conditions set out must all be met and so meeting one or two of the conditions will not be sufficient for the purpose of the exercising its discretion to grant an injunction." In light of the above authority, I find this application to have met only one condition. The Applicant has managed to establish the existence of primafacie case but failed to demonstrate irreparable loss he may suffer in case the order sought is refused. In that regard the Application falls short of merits, I thus proceed to dismiss it entirely without costs. Order accordingly. 8