CIVIL APPLICATION NO1273 OF 2024 MAGINGA BUSINESS HOLDINGS COMPANY LIMITED 4 OTHERS VS CRDB BANK PLC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1273 OF 2024 MAGINGA BUSINESS HOLDINGS COMPANY LIMITED....... 1st APPLICANT PASCHAL KINEMO............................................................ 2nd APPLICANT MATIKU WAMBURA...................................... ................. ...3rd APPLICANT SAMSON 3ACKSON............................................................ 4th APPLICANT JEREMIA MATIKO RYOBA.................................................. 5th APPLICANT VERSUS CRDB BANK P L C ................................................................. RESPONDENT (Application for Temporary Injunction from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) fMbagwa, J .) Dated the 10th day of January, 2023 in Commercial Case No. 6 of 2021 RULING 2nd December, 2024 & 9thJanuary, 2025 KITUSL J.A.: The applicants appeared though Mr. Nickson Ludovick, learned advocate, to persuade me that: "(b) this honourable court be pleased to grant a Temporary Injunction to prevent the Respondents and any Agent under instructions o f the Respondents from selling/disposing the school buildings/premises located on Plot No. 6 Block "C", LO No. 96253/10022, NKUHUNGU AREA WITHIN DODOMA MUNICIPALITY, with Certificate o f title No. 13883, and Piot No. 62 Block "G", MBEZI BEACH AREA IN THE CITY OF DAR ES SALAAM, with Certificate o f title No. 44023, (PROPERIES OF THE 1st APPLICANT) pending hearing and determination o f the intended appeal on the ground that... This application made under rule 4(1) and (2) (a) (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules), is supported by anaffidavit jointly taken by Paschal Kinemo, Matiku Wambura, Samson Jackson and Jeremia Matiko Ryoba, the second, third, fourth and fifth applicants respectively. However, before theparties could address me on that application, I called upon them to address a point of preliminary objection which Mr. Steph Axwesso, learned advocate for the respondent had earlier raised by a notice. The point reads: "This court has no powers to issues restraint orders to a matter which comes by way o f an appeal pursuant to the decisions o f this Court in Civil Application No. 279/01 o f 2020: Prada Enterprises Co. Limited vs Joyce Alex Khaiid & Others at page 10-11 and Civil Application No, 614/17 o f 2021: Hyasint Elias Malisa vs The Ministry o f Land, Housing & Human Settlements Development & Others at page 5-6". Arguing in support of the preliminary objection, Mr. Axwesso raised two or three points, the first being that in its previous decisions, this Court has declined to exercise powers of injunction. The learned counsel relied on the two cases cited in the notice of Preliminary Objection which are Prada Enterprises Co. Limited vs Joyce Alex Khaiid & Others Civil Application No. 279/1 of 2020 [2023] TZCA 17468 and Hyasinta Elias Malisa vs The Ministry of Land, Housing & Human Settlements Development & Others Civil Application No. 614/17 of 2021 [2023] TZCA 17752. He also cited the case of National Housing Corporation v. Peter Kassidi & 4 Others, Civil Application No. 243 of 2016 [2019] TZCA 153. Against that argument, Mr. Ludovick responded by submitting that this Court has the powers to issue an injunction in this case, citing other decisions of the Court that represent a different view, including the case of National Housing Corporation v. Peter Kassidi & 4 Others (supra) in which, he pointed out, the Court did not say that it has no jurisdiction to order injunction. I am aware of somewhat diverging views of the Court regarding its powers to order injunction. These seemingly diverging views are, I think, primarily due to the principle that each case is decided on the basis of its own peculiar facts and also that the cases involve the delicate decision whether or not to exercise the Court's inherent powers under rule 4. I have considered the cases cited by counsel and compared them with the instant case, and it is my conclusion that none of them fits into the prevailing situation. In the cases of Prada Enterprises Co. Limited vs Joyce Alex Khalid & Others (supra) and Hyasinta Elias Malisa vs The Ministry of Land, Housing & Human Settlements Development & Others (supra) for instance, the Court took the view that injunctive orders are more suited to be dealt with by trial courts. In National Housing Corporation v. Peter Kassidi & 4 Others, (supra) which I shall for convenience refer to as Peter Kassidi 2, relied on by both Mr. Axwesso and Mr. Ludovick, the court held that where appropriate, an injunction may issue against a party and not against a Court. I agree with Mr. Ludovick in his submission that in that case the Court did not say it has no powers to order an injunction. However, in National Housing Corporation v. Hamis Lusunga & 3 Others, Civil Application No. 82 of 2008 (unreported) which I shall conveniently refer to as Peter Kassidi 1, a single Justice of the Court issued an injunction under the then rule 3 (2) (a) and (b) of the Court of Appeal Rules 1979 which is similar to our current rule 4 (2) (a) and (b). In that case, execution of a decree of a subordinate court was looming against a person who was not a party to the proceedings. He therefore successfully applied for an order of injunction pending proceedings before the Court, and the Court's view was that the justice of the case warranted such an intervention. In UAP Insurance (T) Limited v. Yuda Thomas Shayo & Others, Civil Application No. 611/18 of 2022 [2024] TZCA 239 the Court ordered an injunction because execution of an uncontested decree was about to proceed in oblivion of payments having been made in satisfaction of that decree. In yet another case of Maryana Nassor v. Abla Estate Developers & Agency Limited & 3 Others, Civil Application No. 153/17 of 2022 [2024] TZCA 168 while appreciating that we do not have rules as in Kenya empowering us to issue injunctive orders, the Court proceeded to observe that "that is not the end o f the world for the applicant; she can still seek such recourse under the Rules!'. Therefore, such are some of the circumstances under which the Court agreed or refused to step in and grant injunctions. If necessary, I shall consider whether the circumstances of this case are such as would attract use of the Court's inherent powers under rule 4. This takes me to of the respondent's second argument that the intended sale is not in execution of any decree but is an exercise of the mortgagee's right of sale under a mortgage. The fact that the intended sale is the respondent's exercise of its power of sale under a mortgage, is a totally new dimension. The applicants are aware of that fact because they have pleaded the advertisement of the intended sale as annexture CRC-2 to paragraph 4 of the joint affidavit. The respondent's argument is that the applicants did not challenge the respondent's action anywhere prior to the institution of this application, and Mr. Ludovick has conceded to that. The learned counsel has insisted that rule 4 clothes the Court with inherent powers to act where it is in the interests of justice. Mr. Axwesso rejoined by submitting that the applicants have not demonstrated that they made attempts to challenge the intended sale. In the case of National Housing Corporation v. Hamis Lusunga & 3 Others (supra) of Peter Kassidi 1 Kileo JA took into account the fact that the applicant had no locus standi to appear before the subordinate tribunal to challenge the intended execution thus proceeded to exercise the Court's inherent powers under the Rules. In this case there is no justification for the applicants' decision to challenge the intended sale at this Court while they ought to have first done so at the High Court. Even the nomenclature of the application is misleading, in my view, as it reads "AppUcdtion for Temporary Injunction from the decision o f the High Court o f Tanzania..."while in fact what the applicants wish to be stopped is the sale in exercise of the lender's power under a mortgage. Moreover, going by our decision in National Housing Corporation v. Peter Kassidi (Peter Kassidi 2) I cannot injunct a Court decree. For the reason shown immediately above, I take the view that I have no jurisdiction to deal with this matter which ought to have been commenced at the High Court. Consequently, I sustain the preliminary objection and strike out this application with costs. DATED at DAR ES SALAAM this 8th day of January, 2025. I. P. KITUSI JUSTICE OF APPEAL Ruling delivered this 9th day of January, 2025 in the presence of Mr. Ludovick Nickson, learned counsel for the applicants and Mr. Florian Francis, learned counsel for the Respondent, is hereby certified as a true copy of the original.