malamula nikusubila malwega vs tanzania postal bank 2016 tzhc 2072 26 august 2016

IN THE HIGH COURT OF TANZANIA AT IRINGA MISC. LAND APPLICATION NO. 47 OF 2016 (Originating from Land Case No. 8 O f 2016) MALAMULA NIKUSUBILA MW ALWEGA............ APPLICANT VERSUS TANZANIA POSTAL B A N K .......................... RESPONDENT RULING 21st JULY 2016 & 26™ AUGUST, 2016 R. K SAMEJI, 3. The applicant namely, MALAMULA NIKUSUBILA MWALWEGA has filed this application against the respondent namely, TANZANIA POSTAL BANK. The Application has been brought under Certificate o f Urgency by Chamber Summons made under Order XXXVII, Rule 1(a), 2(1) and (4) read together with Sections 68 (e) and 95 of the Civil Procedure Code, [Cap. 33. R.E.2002], seeking for grant of an order for temporary injunction to restrain the respondent, his agents, assignees, servants or any person acting 1 under it, from evicting the applicant from the suit property located on Plot No. 965 Block "CC" L.O No. 472620 at Mawelewele, Iringa Region, pending hearing of the application inter parties. The application is duly supported by the affidavit deponed by the applicant himself. The gist of the application as submitted by Mr. Districk Mwesigwa, the learned Counsel for the applicant and supported by the said Affidavit is that, on 13th March 2015 the applicant and the respondent entered into a loan agreement, where the applicant secured a loan facility at the tune of Tshs. 100,000,000/=. In accordance with the said loan agreement, the loan was supposed to be serviced within a period of thirty-six (36) months together with interests and other charges thereof, at the rate of 16% per annum. However, the applicant at some point, specifically on 10th May 2.016 suffered loss from the Oryx Company, which terminated the contract with him, the fact that fluctuated the applicant's business, hence affected his capacity to repay the loan facility. That, due to the said situation, the applicant communicated to the respondent via a letter dated 4th October 2016 requesting for a short period of time to settle the debt as he had started and 2 doing another business with Mihan Gas. The respondent refused to grant the request by the applicant and she is now intending to sell the collateral, the mortgaged security, Plot No. 965 Block "CC" L.O No. 472620 located at Mawelewele, Iringa Region. As such, the applicant has filed this application praying for issuance of a Temporary Injunction Order under Certificate o f Urgency preceded with Exparte Interim Orders pending the determination of the main application inter-partes. That, if this application is not granted, the respondent intention of selling the mortgaged security, will not only deprive the applicant's legal rights over the suit plot, but will also cause physical, mental torture and anguish, hence the applicant is bound to suffer irreparable loss economically/ psychologically and socially. Having listened to Mr. Districk Mwesigwa exparte, specifically after the respondent had ignored the summons of the court to attend and be heard on this application inter-parties, and perused the affidavit in support of the said application together with annexures appended to the Affidavit thereto, I am convinced that, the situation at the said premises requires an immediate 3 intervention of this Court. The only remedy at the moment and in the circumstances of the case is to grant.the application as prayed. Therefore, the application for Interim Injunction Order restraining the respondent, his agents, assignees, servants or any person acting under it, from evicting the applicant from the suit property located on Plot- No. 965 Block "CC" L.O No. 472620 at Mawelewele. in Iringa Region, is hereby granted and issued pending full hearing and determination of the main application inter-partes. I make no orders as to costs. It is so ordered. DATED at IRINGA this 08th day of December 2016. R. K. Sameji JUDGE 08/12/2016 4