JOPEPRI ETERPRISES LTD ANOTHER VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB - REGISTRY AT MOSHI MISC. CIVIL APPLICATION NO. 24676 OF 2024 (Arising from Civil Case No. 24324 of 2024) JOPEPRI ENTERPRISES LIMITED…………….……………….1ST APPLICANT JOHN AMBROSE MWASE…………………………….………….2ND APPLICANT VERSUS KCB BANK TANZANIA LIMITED……….................................RESPONDENT RULING 18th October 2024 A.P.KILIMI, J.: This application has been brought under Order XXXVII Rule 1 & 2 of the Civil Procedure Code, [Cap. 33 R.E. 2019]. The application was preferred under a certificate of urgency. The application is supported by an affidavit of John Ambrose Mwase, the 2nd Applicant and managing director of the 1st Applicant. The applicants are seeking for temporary injunction and orders as follows: 1 EX PARTE a) That this honorable Court may be pleased to make an order of temporary injunction restraining the respondent, their servants, agents, assigns, workmen and whomsoever will be acting under or through them from disposing the suit land being Plot. No. 30 at Kindi Msasani Village in Moshi District, held under a Certificate of Tittle No. 34968, registered in the name of the 2nd Applicant, through public auction intended to be conducted after expiration of 60 days default notice pending the hearing and determination of the application for temporary injunction inter parties; INTER PARTES b) This honorable court may be pleased to make an order of temporary injunction restraining the respondent, their servants, agents, assigns, workmen and whomsoever will be acting under or through them from disposing the suit land being Plot. No. 30 at Kindi Msasani Village in Moshi District, held under a Certificate of Tittle No. 34968, registered in the name of the 2nd Applicant, through public auction intended to be conducted after expiration of 60 days default notice pending the hearing and determination of the main case; c) Cost of this application be costs in the suit; and d) Any other orders that the honorable court may deem fit. At the hearing of the application Ms. Helen Mahuna learned advocate appeared and argued the application on behalf of the applicant while Mr. Mandera Mzirayi held brief of Mr. Denis Mworia for the respondent. 2 Addressing the court Mr. Mziray said that the respondent had no objection and that the prayer by the applicant be granted also the costs be in the main course. Ms. Mahuna prayed for her prayers to be granted. In determining this application, the issue is whether the application deserves grant. In answering this issue I will be guided by the principle as propounded in the case of Attilio vs Mbowe (1969) H. C. D. 284 which are; first, that there must be a serious question to be tried on the facts alleged and a probability that the plaintiff will be entitled to the relief prayed; second, that the court’s interference is necessary to protect the plaintiff from the kind of injuries which may be irreparable before his legal rights is established, and third, that on the balance there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from granting it. The first principle is as to whether there is a serious triable issue and there is a likelihood of the Court deciding in favour of the applicant. Based on the affidavit in support of the application especially under paragraph 14 the applicants stated to have fully discharged their obligation to pay off in full the disbursed loan and the averment has been supported with a copy of 1st applicant’s account statement. Again, considering the fact that the 3 respondent has issued a 60 days default notice to the applicants intending to dispose the suit property, these facts show that there is a clear dispute between parties and triable issues like whether the applicants have discharged their obligation of paying the outstanding loan facility and or whether the respondent wants to illegally dispose of the suit land. Based on this I find that the first principle is accordingly fulfilled. The second principle is examined in the context of irreparable loss. Based on the pleadings it is apparent that the applicants may suffer irreparable loss, if this application for temporary injunction is not going to be granted. Besides, the respondent not contesting the application, but even if he did, looking at the pleadings and the affidavit in support of the application, it is more likely than not that the applicants may suffer irreparable loss. It is not disputed that the suit property is legally owned by the 2nd applicant that is why the respondent agreed for it to be used as one of the collaterals in securing the loan facility. In the affidavit and in particular paragraph 15, the 2nd Applicant has pointed out what will befall them in the event the application is denied. He averred that he will suffer irreparable loss since the suit property is the only residential house remained after the 4 sale of all houses and properties because of the loan facility which has caused them to be bankrupt, insolvent, loss of income and economic hardship. Considering all these facts, in terms of loss it is without any doubt that the applicants may suffer irreparable loss. Therefore, the second principle is also met. The last principle that of who between the applicants and the respondent will suffer most on the balance of convenience, I again without hesitation and based on my conclusion in the first and second, find the third principle as to have as well been answered in the affirmative, that the applicants may suffer most if this application is denied. Now, since the respondent did not contest the application and the fact that the applicants have been able to justify as to why their application should be granted as above, For the foregoing, I thus proceed to grant temporary injunction and order that the respondents, its employees, workmen and agents be restrained from disposing the suit land being plot No. 30 at Kindi Msasani Village, in Moshi District, held under a certificate of title No. 34968 registered in the name of the 2nd Applicant pending hearing of the main suit. Costs to be in due course. 5 It is so ordered. DATED at MOSHI this 18th day of October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 18th day of October, 2024 in the presence of Ms. Helen Mahuna learned counsel for Applicant and Mr. Mandera Mzirayi for the respondent. Sgd; A. P. KILIMI JUDGE 18/10/2024 6