MCA NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 14691 OF 2024 (Arising front Civil Case No. 47 of 2022) KILIMANJARO TRUCK COMPANY LIMITED ……….……………1ST APPLICANT ROWLAND SAWAYA……………………..……………………….……2ND APPLICANT VERSUS THE ATTORNEY GENERAL …...…………………………….….1ST RESPONDENT THE TANZANIA ELECTRICAL MECHANICAL AND ELECTRONIC SERVICES AGENCY (TEMESA)…………..…..2ND RESPONDENT PERMANENT SECRETARY MINISTRY OF WORK………… 3RD RESPONDENT LEONARD PAUL KISENHA……………………………………....4TH RESPONDENT MJAHID MOHAMED …………………………………..………….5TH RESPONDENT LEGIT AUCTION MART COMPANY LIMITED……….………..6TH RESPONDENT RULING 29th July & 20th August, 2024 BWEGOGE, J.: The aforementioned applicants instituted an application herein under the certificate of urgency praying for an order for temporary injunction and maintenance of status quo against the 6th respondent to restrain the same 1 from disposing of the motor vehicle vide registration number T. 178 EAU or make a proclamation of sale or invite/solicit any interested buyers to buy the vehicle number T. 178 EAU the property of the 1st applicant pending the expiry of 90 days" statutory notice issued to the 1st, 2nd and 3rd respondents and, or the hearing and determination of the main suit intended to be filed against the respondents, among others. The application is brought under section 2 (3) of the Judicature and Application of Laws Act [Cap. 358 R.E. 2019] and section 95 of the Civil Procedure Code [Cap. 33 R.E. 2019] and supported by the affidavit of the 2nd applicant. In tandem with filing counter affidavit, the 4th respondent raised the preliminary objections on points of law thus: 1. This court lacks jurisdiction to entertain the current application, and to grant the orders sought. 2. The application is bad in law for contravening the provisions of Order XXI, rule 76 of the CPC. 3. The application is bad in law for suing the 6th respondent, who is a wrong party in law and fact. The brief facts of this case gathered from the depositions in the affidavit supporting the application herein are as follows: The 4th respondent filed Civil Case Number 47 of 2022 against the applicants herein and the 5th 2 respondent for tortious liability arising from the road accident that occurred on 24th December, 2021. The case was heard exparte and the exparte judgment and decree were entered against the applicants and 5th respondent respectively, for payment of a decreatal sum of TZS 300,000,000/= among others, to the 4th respondent herein. The decree- holder filed an application for execution of the exparte decree by way of attachment and sale of the 1st applicant’s vehicle. And the court appointed the 6th respondent, a court broker, to execute the decree. The warrant of attachment was duly issued to that effect. Consequently, on 29th May, 2024 the 6th respondent impounded the vehicle vide registration number T178 EAU, the property of the 1st applicant. And the 2nd respondent was engaged to conduct the valuation of the vehicle to ascertain its market value. The valuation report issued indicates that the vehicle at the time of purchase was valued at TZS 556,054,000, and it has depreciated to the tune of TZS. 417,040,000/. Hence, the residue value is TZS 139,013,500/. The applicants were not amused with the valuation report executed by the 2nd respondent. They allege that the 2nd respondent’s valuation is biased and unfair as the applicant was not involved during valuation; and the depreciating factors were not indicated. Therefore, the applicants seek 3 to challenge the valuation report by instituting a suit against the respondents herein. Hence, the applicants are seeking the intervention of this court, lest the intended suit against the respondents herein is rendered nugatory. During the hearing of this matter, the applicants were represented by Mr. Dickson Ngowi, the learned advocate; the 1st, 2nd and 3rd respondents were represented by Messrs Edwin J. Webiro and Mr. Pantaleo Urasa, the learned state attorneys; the 4th respondent was represented by Mr. Aloys Rugazia, learned advocate; and the 6th respondent fended for himself. The case proceeded exparte against the 5th respondent. In substantiating the 1st limb of the objections, Mr. Rugazia argued that looking at the pleadings lodged herein, the applicants are moving this court to grant an injunction order against the execution proceedings which resulted in the attachment of the suit property (vehicle with registration No T. 178 EAU) in Execution No. 23 of 2023. That, the proclamation of sale was pronounced by this very court against the suit property and necessary steps to sell the property were taken; such as the publication of the notice of sale in compliance with the proclamation of sale issued by this court. 4 Hence, the counsel opined that it is a law that an injunction order cannot be issued against the judicial process which also includes the execution process. The cases of the National Housing Corporation vs Peter Kassidi & Others (Civil Application 243 of 2016) [2019] TZCA 153 and Prada Enterprises Co. Limited vs. Joyce Alex Khalid & Others (Civil Application No.279/01 of 2020) [2023] TZCA 17468 were cited to bolster the point. He prayed this court dismiss the application herein with costs as this court has no power to grant the sought order. In respect of the 2nd limb of the objections the counsel argued that in terms of the provision of Order XXI, rule 76 of the CPC, it is instructed that no irregularity in publishing or conducting the sale shall vitiate the sale, but any person sustaining an injury is entitled to institute a suit for compensation or recovery of the specific property. That the proclamation of sale having been made, the applicant has no justifiable recourse unless the right to file the suit for compensation when the sale process is over; if the same would be aggrieved by the sale. Hence, he opined that the current application is premature. 5 Lastly, in validating the last ground of the objection, the counsel argued that the 6th respondent was improperly impleaded. That the 6th respondent is a non-existing party in law and in fact. That in terms of rule 5 (b) and (j) of the Court Brokers and Process Servers (Appointment Remuneration and Disciplinary) Rules the court broker is appointed as the natural person, not the company; hence, the same should have referred to by his name; Daniel Mbuga t/a Legit Auction Mart. The counsel opined that the defect pointed above, renders the matter herein defective. Based on the above submissions, the applicant’s counsel prayed this court to dismiss the matter herein with costs. Suffices to point out that, Mr. Webiro, counsel for the 1st, 2nd and 3rd respondents entirely concurred with the submission made by Mr Rugazia in respect of the 1st limb of the objection preferred herein. Further, he expounded that this court cannot be prayed to grant injunctive order to impede the judicial process. He fully subscribed to the earlier cited case by the applicants’ counsel but distinguished the latter cited case as it was merely opined that the Apex Court could not grant an injunction order. Regarding the 2nd limb of the objection, Mr Webiro argued that the cited provisions cited to substantiate the respective objection are not applicable in this case as the applicant is not challenging the sale process. And the 6 vehicle is yet to be sold. Hence, he opined that the 2nd objection has been raised prematurely. Likewise, concerning the submission made in support of the 3rd limb of the objections, the counsel contended that the alleged anomaly cannot be regarded as fatal to the case. The counsel directed the mind of this court to the provision of Order XXIX, rule 10 of the CPC which allows a party to be sued by his/her business name. Replying to the above arguments, Mr. Ngowi contended that the 3rd limb of the objections preferred herein is misplaced as it calls for evidence to ascertain whether the 6th respondent served the attachment order to the applicants. The case of Jackline Hamson Ghikas vs. Mlatie Richie Assey (Civil Appeal No. 567 of 2022) [2024] TZCA 366 was cited to buttress the point. The counsel opined that; no harm has been caused in suing the 6th respondent in his business name. In the same vein, the counsel contended that the 2nd limb of the objection; likewise, was prematurely raised as the sale process is not yet completed. Responding to the 1st limb of the objection, Mr. Ngowi contended that the application before this court is not to stop or frustrate the proceedings of this court, but for the examination of legality and, or propriety of the evaluation report prepared by the second respondent which mandated 7 the 6th respondent to publish the proclamation of sale of the suit property. That the jurisdiction of this court is pegged on section 2(3) of the JALO and section 95 of the CPC. Hence, this court can issue a temporary restraining order pending the filing of a suit against the respondents. Therefore, the restraining order sought herein is not against the judicial order but the evaluation document issued by the 2nd respondent and employed by the 6th respondent to proclaim sale. The counsel insisted that the application herein is seeking to challenge the evaluation of the suit process made by the 2nd respondent which they consider to have undervalued the suit property. And this court has jurisdiction to issue the relief sought in this case. Based on the above premises, the counsel prayed this application to dismiss the objections raised herein with costs. In rejoinder, Mr Rugazia argued that it is apparent on pleading that the prayers sought herein are seeking temporary/mareva injunction whereas the proclamation for sale was not issued by the 6th respondent but this court acting under Order XXI, rule 65 of the CPC. Moreso, the counsel contended that the issue herein is whether this court has power to grant the relief sought. The counsel enlightened this court that this question in no uncertain terms was answered in the case of 8 National Housing Corporation vs. Peter Kassidi & Others (supra) wherein the court opined that injunction cannot be issued against the judicial process whereas in this matter injunction is sought against the very order for sale issued by this court. Otherwise, the counsel reiterated his previous stance in respect of the 2nd and 3rd limbs of the objection raised herein. The issue arising herein is whether the objections on points of law raised herein are merited. Primarily, it settled law that a preliminary objection is expected to raise a pure point of law based on ascertained facts from the pleadings which, if argued, should be capable of disposing of the case. Hence, the preliminary objection cannot be raised if what is sought is the exercise of judicial discretion. See the cases; Attorney General vs. The Board of Trustees of the Cashewnut Industry Development Trust Fund, (Civil Appeal 72 of 2015) [2015] TZCA and Mukisa Biscuits vs. West End Distributors Ltd [1969] EA 696, among others. Now, I am bent on testing the objections fronted by the 4th respondent herein to find whether they pass the scales of justice. In this endeavour, I would commence with the 1st and pertinent preliminary objection herein. The charge thereof alleges that this court lacks jurisdiction to entertain 9 the current application and to grant the orders sought herein. The gist of the charge is premised on the argument that it is a law of this land that an injunction order cannot lie against the judicial process, the execution process inclusive. This argument was likewise supported by Mr. Webiro, the counsel for the 1st, 2nd and 3rd respondents. Conversely, Mr. Ngowi, the applicants' counsel contended that this court is enjoined with power to issue a temporary restraining order sought by the applicant pending the determination of the intended suit. Thus, the restraining order sought herein is not against the judicial order but the ongoing execution process prompted by the evaluation document issued by the 2nd respondent and acted upon by the 6th respondent in proclaiming the sale. At this juncture, in assessing the veracity of the charge made by the 4th respondent, I am constrained to revisit the prayer made by the applicant in the pleadings filed hereto. The chamber summons bear the following prayers: “Interparte: 1. This Court may be pleased to issue tem porary injunction and, or m areva injunction and m aintenance of status quo against the 6 th respondent not to dispose vehicle num ber T. 178 EAU or m ak e proclam ation of sale or invite or 10 solicit any interested buyers, be it by way of public auction or by private treaty, to buy vehicle number TUBE AU the property of the 1st applicant pending expiry of 90 days’ statutory notice to the 1st, 2nd and 3rd respondents. 2. This Court may be pleased to issue tem porary injunction and, or m areva injunction and m aintenance of status quo against the 6 th respondent not to dispose of vehicle num ber T.178 EAU or m ake a proclam ation of sale or invite or solicit any interested buyers, be it by way of public auction or by private treaty, to buy vehicle number T. 178 EAU the property of the 1st applicant pending hearing and determination of the main suit intended to be filed against the respondents. 3. Any other relief (s) this Hon. Court may deem just and fit to grant.” [Emphasis added]. It is apparent on the face of pleadings revisited above and reiterated in the supporting affidavit that the applicants, in substance, pray for injunction order(s). In the case of National Housing Corporation vs. Peter Kassidi & Others (supra), the Apex Court explained the difference between the injunctive order and stay of execution order as follows: "It bears reflecting that a tem porary injunction is an equitable relief for m aintaining the status quo betw een the parties pending the hearing and determ ination of an action in court. The remedy is in the nature of a prohibitory order granted at the discretion of the court against a party. On 11 the other hand, while an order for stay of execution is also in the nature of prohibitory order, it is addressed to the court carrying out the ex ecution to suspend or delay the enforcem ent of the decree concerned pending hearing and determ ination of a proceeding, ……….. What a stay of execution does, therefore, is to prohibit the court from proceeding with the execution further..." [Emphasis added]. Further, borrowing a leaf in Book; Sohoni's Law of Injunctions, 4th Edn. Premier Publishing Company, Allahabad, India 2013 at page 21 authored by V. S. Sohoni and S. V. Sohoni, the Court expounded as follows: "...difference between an order of injunction and an order of stay arising out of the fact that an injunction is usually passed against a party while a stay order is addressed to the court.” In the same vein, in the case of Prada Enterprises Co. Limited vs. Joyce Alex Khalid & Others (supra), while subscribing to the opinion made in the National Housing Corporation case, the Court further expounded that it would appear that the two judicial processes cannot be used interchangeably. And the court concluded that: “…this means that an injunction order cannot be used to prohibit a judicial process like execution of a decree.” 12 The above excerpts speak volumes that an injunction order cannot be employed to prohibit a judicial process such as the execution of a decree. The explanation given by Mr. Ngowi, in that the applicants’ counsel merely seeks temporary restraining order(s) pending the determination of the intended suit doesn’t make any difference. Likewise, the explanation that the impugned orders are sought against the 6th respondent cannot salvage the matter herein either. It is needless to point out that the 6th respondent has been engaged to execute the order of this court. Hence, literary, the applicants are seeking injunction orders against the judicial process of this very court. Suffices to say that the appropriate orders to be sought in the circumstances of this case would have been stay of execution pending the judicial proceedings preferred. I would find the 1st limb of the preliminary objection with substance. Having arrived at the above conclusion, I find it needless to further delve into the remaining limbs of the preliminary objections. Given the foregoing, I find the 1st limb of the preliminary objections on points of law meritorious. I hereby sustain the same. Accordingly, I find the application herein incompetent before this court for seeking injunctive 13 orders against the judicial process of this court. The application is hereby struck out with costs. So ordered. DATED at DAR ES SALAAM this 20th August, 2024. O. F. BWEGOGE JUDGE 14