jonas nelson nyagawa vs crdb bank plc 3 others 2023 tzhclandd 16826 29 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC LAND APPLICATION NO.500 OF 2023 (Arising from Land Case No. 246 of 2023) JONAS NELSON NYAGAWA ...APPLICANT

VERSUS CRDB BANK PLC ISt RESPONDENT MEM AUCTIONEERS AND GENERAL BROKERS 2^° RESPONDENT M/S BENS AGROSTAR COMPANY LIMITED 3^° RESPONDENT BUDGET MOVERS LIMITED 4™ RESPONDENT

RULING 25th to 29th August, 2023 E.B. LUVANDA,J The Applicant nnentioned above Is seeking for an order of temporary injunction against the Respondents named above, inrespect of the Applicant's landed property Plots No. 166 - 171 Block F, Mablbo Area Kinondoni Municipality described under Certificate of Title No. 86966. In the affidavit in support of the application, the Application grounded that there is a pending Land Case No. 246/2023; the suit premises was leased to the tenant for a lease of five years commencing from 01/08/2022; the suit premises was sold on 25/08/2022 at Tshs 1, 200,000,000/= which is 1 below the market value and forced sale value as per the expired valuation report conducted in 2018; there is an ongoing hardware business, several meeting have been convened between the First, Third Respondent and tenant, invain, and threats to evict persist, which will expose to further battle with his tenant; irreparable loss. In the counter affidavit, the Third Respondent stated that after purchasing the suit property the Registrar of Titles issued a notice of transfer dated 20/12/2022 which the Applicant did not dispute within 30 days; that the Applicant and Lessee were issued within 30 days notice to vacate the property and granted more days to remain in the suit property until one year rent which was paid by the Lessee had expired which expired on 31/07/2023; the

Applicant and Lessee requested and were granted for another 14 days grace period to enable them relocate; on 20/07/2023 the Lessee wrote to the Third Respondent requesting for a meeting on discussion to settle the matter including leasing the suit property. Ms. Saumu Nassoro Ngoma learned Counsel for the Applicant submitted that the Applicant has met all the conditions for granting temporary injunction being the.existence of a primafecie case; imminent irreparable loss, incapable of being atoned for by way of damages and balance of convenience in favour of the party who will suffer the grater inconvenience in the event the injunction is or is not granted. On the first condition, the learned Counsel submitted that the private sale of the property was conducted without valuation to obtain market value, argued there is a triable issue in Land Case No. 246/2023 which is whether the suit property was sold within marked (sic, market value). For the Second condition, the learned Counsel submitted that since there is an intended eviction by the Third Respondent, the Applicant stands to suffer irreparable loss on the property which will be disposed to the third party and will open him to a series of litigation and the loss cannot be attained by way of damages. Regarding the third condition, she submitted that the Applicant and his tenant are occupying the suit property with an on going

business and the Third Respondent has never been in occupation and possession of the same, arguing that it is the Applicant who stands to suffer general loss if the application for injunction will not be granted. He cited the case of Abdi Ally Saleihe vs. Asac Care Unit Limited & Two Others, Civil Revision No. 3/2012 CAT at Dar es Salaam. Mr. Jovinson Kagirwa learned Counsel for the Third Respondent submitted that the Applicant raised one issue to the effect that the valuation was not conducted before the sale of the property. He submitted in rebuttal that neither the affidavit or submission suggest or indicate what is the best value of the property. He cited J. M. H. Hauliers Limited vs. ACCESS Microfinance Bank (Tanzania) Limited, Civil Appeal No. 274/2021, CAT; Abdi Saleh vs. Registered Trustees of Tanzania Football Federation, Misc. Civil Application No. 3052021; Salvatory Ceiestine Rwabizi t/Thesa Construction Company vs. International Commercial Bank (T) Limited, Misc. Land Application No. 375/2021; Cosmos Developers Limited & Another vs. Mark Auctioneers & Court Brokers Limited & Another, Misc. Land Application 6/2020, regarding the proposition of triable issue. He submitted that there is no any cause of action which will invite this court to invoke its discretion powers, arguing that this application was made one year after the suit property was disposed by the First

Respondent and the Applicant does not disputes its indebtness to the First Respondent. Regarding irreparable loss, the learned Counsel submitted that the irreparable loss stated at paragraph 22 of the affidavit, in rebutall argued that neither of the loss amount to irreparable loss for the purpose of temporary injunction. He submitted that the intended action to be taken in taking possession of the registered owner of the property does not in any way amount to irreparable loss. He submitted that the Applicant did not state if there is irreparable loss which cannot be compensated by the Respondents apart from mere allegations not backed by evidence. He submitted that rent paid has already expired by time and the tenant is occupying the suit property illegally. He submitted that it is the Third Respondent who has been losing more than USD 10,000 per month from December 2022 todate. He submitted that the allegation that the Applicant is occupying the demised premises is not supported by the Tenants averments in the application which is attached as BENS 5. On the issue of balance of probability, the learned Counsel submitted that the notice for vacating the premises was served to the Applicants and tenants since 21/03/2023 where 30 days were given to the Applicant and tenants to vacate the premises. He submitted further that the office of district commission Ubungo convened a

meeting and all parties agreed for smooth rellocation from the Third Respondent's premises. He submitted that on 22/05/2023 and 01/06/2023 another letter was issued to ask the tenants, but again the Applicant is coming before this court seeking for injunction. It is common ground that the three condition precedent for granting temporary injunction enumerated in the celebrated case of Atilio vs. Mbowe (1969) H.C.D. 284, are cumulative does not apply in isolation, meaning that for one who bid for injunctive orders must met all conditions. In the instant application, the Applicant pleaded that there is a triable issue in Land Case No. 246/2023 pending in this Court, his argument is premised on the ground that the private saie of the suit premises was conducted beiow the market value and forced saie value as per the expired valuation report conducted in 2018, see paragraph 20 of the affidavit in support. In the submission, the learned Counsel for Applicant submitted that the private sale was done without conducting valuation to obtain market value. It is to be noted that in the affidavit the Applicant was complaining that the saie was beiow market value by making reference to what he said expired valuation report dated 2018. On the submission he is complaining that there is no valuation report which was conducted to establish the current market value of the suit premises. However

as alluded by the Counsel for Third Respondent that the one who allege (the Applicant) whom onus of proof lies, did not state in the affidavit what was the exactly price or value of the property, neither stated if he conducted any valuation to counter the purchase price by the Third Respondent allegedly beiow market value. In the circumstances the alleged triable issue, in absence of material evidence, remain at stake. In J.M.H. Hauliers (supra), the apex Court ruled, I quote, "In the absence of valuation report that the suit property had appreciated In value, we find the appellant complaint unsubstantiated. The appellant was In our observation obliged to furnish the court with valuation report showing the Increase In value. Section 110and 111 ofthe Evidence Acf(Cap Sr. e. 2019), require the one who alleges mustprove. The appellantIs thus not exceptional. We wish once again to restate the stance we took In Joseph Kahungwa(supra) when we stated: ''The Appellant did notproduce anyevidence to prove that the suit property could fetch more price than the one sold. ItIs cardinalprinciple oflaw that the burden ofproof In dvH cases Ties on the party who alleges anything In his favour'' The Applicant's counsel submitted that the intended forceful eviction by the Third Respondent, the Applicant wiii suffer irreparable loss, because disposal of the suit property will open him to a series

of litigations and cannot be attained by way of damages. The learned Counsel was not elaborate as to how a mere eviction from the suit property cannot be compensated by way of damages. Be as it may, in the affidavit in support of the application, at paragraph 18, the Applicant stated that the suit property was leased to Ms. Gaini Company for a long lease agreement of five years commencing on 01/08/2022, being just twenty five days prior the suit property was sold to the Third Respondent on 25/08/2022 as per paragraph 20 of the affidavit in support. But there is no lease agreement which was attached to the affidavit to affirm what was pleaded by the Applicant. At paragraphs 9 and ll(iv) of the counter affidavit, the Third Respondent stated that the lease agreement between the Applicant and the alleged Lessee expired on 31/07/2023 and further added that the Third Respondent had granted the Applicant and Lessee 30 days extension and another 14 days grace period for them reliocate. The Applicant did not counter these facts. At paragraph ll(iii) of the counter affidavit, the Third Respondent stated that the alleged Lessee Ms. Gaini Company has been engaging the Third Respondent for negotiation of a lease. Therefore the alleged loss and series of litigations, are mere illusion. This is because the Applicant have not even attached a single notice from the alleged tenant (Ms. Gain

Company) of intention to sue for breach or else frustration of the purported long lease agreement of five years. Therefore the argument of the learned Counsel for Third Respondent, that there is no valid lease agreement, reign. It is to be noted that the suit premises were sold last year on 25/08/2022. The Applicant is suing this August. According to the averments in the counter affidavit at paragraph 11 (i) the Applicant was served with a notice of transfer under power of sale dated 20/12/2022 from the Registrar of Titles, informing him that transfer will be registered within 30 days. At paragraph 12 of the counter affidavit, the Third Respondent stated that she is the registered owner of the suit premises, and pleaded that she is the one who stands to suffer irreparable loss. In the circumstances, there is nothing to be preserved by way of temporary injunction. In short, the Applicant failed to meet the three test for granting temporary injunction. The application is dismissed with costs.

LUVANDA

JUDGE 29/08/2023 Ruling delivered by virtual jbourt attended by Mr. Novatus Mihangwa learned Advocate and Ms. Saumu Nassoro Ngoma, learned Advocate for Applicant and Mr. Jovinson Karigwa learned Counsel for Third Respondent. EvB. LliVANDA \\. lUDGE V. f/i-:: 79/08/2023