Nyenzi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION N0.10730 OF 2024 {Arising from Execution No. 10141 of2024) MAJALIWA BURHAN NYEZI................................ 1st APPLICANT DR. BURHAN SALUM NYENZI.............................2nd APPLICANT CLIMATE CONSULT (T) LIMITED........................ 3rd APPLICANT VERSUS NCBA BANK TANZANIA LIMITED...................... 1st RESPONDENT NUTMEG AUCTIONEERS & PROPERTY MANAGERS........................................................ 2nd RESPONDENT RULING Date of Last Order: 04.06.2024 Date ofRuling: 28.06.2024 T.N. MWENEGOHA, J The applicant sought for an Order of this Court, to maintain the status quo of the following properties; - Farm No. 2103/T CT 46694 Kimara Area- Ubungo Municipality and Farm No. 2103/2 CT No. 46695, Kimara Area- Ubungo. Also, the respondents be restrained from completing the process of transfer of Plot No. 161 Block 13, Mbweni Mpiji Area, Bagamoyo District Council, Plot No. 129 Block 13 Kibada Block 1 Ukuni Area, Plot No. 169 Block No. 13 Mbweni Mpiji Area-Kinondoni Area, Plot 171 Block 13 Mbweni Mpiji Kinondoni Municipality, the properties which are owned by the 1st applicant. And Plot No. 188 Block 13 Mbweni Mpiji Area Kinondoni Municipal Council and Plot No. 190 Block 13 Mbweni Mpiji Area-Kinondoni Municipality, being the properties of the 2nd respondent. The Application was preferred under Order XXXVII Rule 1 (a) and section 68 (e) and 95of the Civil Procedure Code, Cap 33 R.E 2019. On the other hand, the 1st respondent raised an Objection on point of law that, the Court has no jurisdiction to entertain the Application. Advocate Gaspar Nyika for the 1st respondent, insisted in his submissions that, the Court cannot restrain a sell of a property that has already been completed. That, the present Application has already been overtaken by events. The Court cannot maintain the status quo by restraining the respondents from completing the sale process and transfer of the suit properties. He insisted that the said properties have already been sold on a Public Auction since January 29th 2024 as stated in the applicants Affidavit under page 9 and 10. To cement his arguments, he cited a number of cases including the case of National Bank of Commerce versus Dar es Salaam Education & Office Stationery (1995) TLR as cited with approval Dr. Ramadhan Kitwana Dau and Another versus Bank M Tanzania PLC & Others, Misc. Land Case Application No.466 of 2018, High Court of Tanzania at Dar es Salaam(unreported). On the other hand, Advocate Laurent Ntanga for the applicants was of the view that, the Objection raised by the counsel for the 1st respondent herein above along with his arguments in favour of the said Objection are misconceived. That, the counsel for the 1st respondent did not say if the purchasers of sold properties have paid the purchase price already in full and if the transfer has been affected. Since this is a matter of proof, then the Objection fails. In this Application, the applicants are seeking to restrain the respondents from completing the sale of the above listed properties. That the sale is yet to be completed, still the properties are in the hands of the respondents as the transfer cannot be done until the price is fully paid. I have considered the submissions of both counsels for and against the Objection raised. The issue for determination is whether the Objection has merits. Indeed, the instant case is based under the provisions of Order XXXVII Rule 1 (a) of the Civil Procedure Code, Cap 33 R.E 2019, which reads as follows; - Where in any suit it is proved by affidavit or otherwise - (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason ofits continued use by anyparty to then suit, or wrongly sold in execution of a decree; Plainly, the quoted provision above applies in circumstances where a certain act is about to happen, threatening to damage or alienate the suit property. Clearly, it can be noted that the purpose of granting such Orders is to preserve the status until the parties' rights are determined. If the action parties are seeking to stop in order to preserve the status are complete, such as in the case at hand, then such a prayer is simply overtaken by the event. iI- In the present Application, as noted, the applicants in their joint affidavit, under paragraphs 9 and 10, has stated clearly that some the properties in dispute were sold in a public auction and other properties were on the process of being sold (as seen under paragraph 11). Further, in his reply submission, the applicants' counsel did not dispute the allegations of the respondent's counsel on the selling of the properties in question. Rather, he wanted the 1st respondent to provide proof that the purchase price has been fully paid. I find this line of arguments to be evasive, especially where there is such admission in the Application that properties have been auctioned. Therefore, what I infer from the same is that it means only one thing, that, the properties in questions have already been disposed. It is irrelevant as to whether the price was fully paid or the same is to be paid in installment. The fact which remains undisputed is that, the suit properties listed herein above are not in the hand of the 1st respondent or the applicants. Therefore, there is no status to be maintained in respect of the said properties. For the reasons given here in above, I find the Objection to have merits and sustain it accordingly. This Application is incompetent. In the event, the Application is struck out with costs. Ordered accordingly. 28/06/2024