marry atupele mungai vs national bank of commerce 2020 tzhclandd 67 27 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION No. 295 OF 2018 (Arising from Land case number 60 of 2018) MARRY ATUPELE MUNGAI...................... .... APPLICANT VERSUS NATIONAL BANK OF COMMERCE LIMITED RESPONDENT RULING S.M. MAGHIMBI, J: The Applicant Marry Atupele Mungai has moved this Court under Order XXXVII Rule 1(a), rule 2 (1) and Section 68 (e) of the Civil Procedure Code Cap 33 R.E 2002 2002, Seeking for an Order of temporary injunction against the respondent. The reasons advanced by the Applicant for the order of injunction to be granted is that she has filed a Land Case No.60 of 2018 claiming among other things, a declaration that the mortgage relationship entered between the respondent and applicant's husband over the land mentioned under paragraph 5 of the applicant's affidavit was a nullity for want of consent of the applicant as the spouse of the mortgagor therein, an order nullifying the same mortgage for breach of the law and want of consideration of the spouse of the mortgagor and an order perpetually restraining the respondent from interfering smooth ownership of the said land. In her submission, the applicant told this court that she is the joint owner of the mortgaged property and the wife of the late Joseph Mungai who was the guarantor of a loan facility that was granted to a legal entity by the name of Baobab Inn Apartments Ltd. That she came to know about the said transaction after the death of her husband after she and her sons where appointed as administrators of the estate of her late husband by the Kinondon Primary Court in Probate cause No.431/2016, however the said appointment was revoked by the Kinondoni District Court in 2018 through Civil Revision No.13 of 2017. She continued to submit that to date, there is no administrator of the Estate of the late Joseph Mungai and that the matter is still in court and yet to be finalized. That the Estate of the late Joseph Mungai could not be made party to this application as there is no one to speak for it yet and that the Applicant and her husband were a couple which followed purely African tradition. In reply, the respondent submitted that when the application was presented for filling on 21st May 2018, there was no pending suit whatsoever involving the present parties. That the truthfulness on the above contention finds corroboration in the title of the said filed application in which there is no suit case number indicated as of the date when the instant application was endorsed as received by the registry officer (on the 21st May 2018) and likewise three days afterwards when the said chamber application cleared for admission and accordingly stamped by the hon. Registrar (on 24th May 2018). Having gone through the applicant's application and submissions of the parties, at this point, I didn't see a reason to go into the nit and grits of the principles in granting temporary injunction. This is because at this initial stage of the application, I find that the application beforehand is prematurely before this court. From the records of the application, particularly para 5 of the applicant's affidavit, she avers that her late husband guaranteed a loan granted by the respondent to an entity known as Baobao Apartments Limited without her consent. In his submissions to support the application, Mr. Claudia Nestory, who drew and filed the submissions on behalf of the applicant, admitted that the applicant's husband is deceased and there is no administrator of the estate appointed yet as the matter is still in court hence the guarantor could not be made a party. To this Court's surprise, even the borrower entity is not a party to this application or the main suit which this application is subject of. In my strong view, this application is nothing but an abuse of process because all the necessary parties to the dispute are not included, it makes me wonder how the applicant intends to prove and save her alleged property from the respondent without having the crucial parties to the transaction joined in the suit. The contested transaction was a tripartite agreement involving the said Baobao Apartments Limited as the borrower, the respondent as the lender and the deceased Joseph Mungai as the guarantor. Therefore suing only one party out of the tripartite transaction does not make any sense as there will leave too many stones unturned as the necessary parties are not given opportunity to be heard. What I am gathering at this point is an applicant who only seeks an order of the court to restrain the defendant from disposing the mortgaged property, and not actually serious to have justice administered on what actually transpired in the transaction. Therefore until the applicant is serious and ready to have the matter prosecuted with all the necessary parties involved, I cannot in any way grant the orders sought in this application. The application therefore struck out with no order as to costs. Dated at Dar es Salaam this 27^ day of April, 2020 ........ S.M MAGHIMBI, JUDGE.