REVISION FINAL

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL REVISION NO. 13915 OF 2024 MOBIKEY TRUCKS AND BUS LIMITED…………………………..…………APPLICANT VERSUS FAMARI INVESTMENT (T) LIMITED………………………….……….…RESPONDENT (Arising from the Ruling of the District Court of Temeke at Temeke dated 31st May 2024 before 'Mkama, PRM in Misc. Civil Application No. 12782 of 2024) RULING 24th September 24th October 2024 MWANGA, J. By way of chamber summons, the Applicant has instituted the instant application seeking the following orders; i. That this Honorable Court be pleased to call and examine the records of the proceedings and order in miscellaneous application number 12782 dated 31st May 2024 by the District Court of Temeke. ii. The costs of this application be borne by the respondent. 1 iii. If there are any further orders and relief, the Hon. Court will deem fit to grant. The application has been preferred under section 44 (1) (a) of the Magistrate Court Act, Cap. 11 R. E 2019, and section 79 (1) (c) and 95 of the Civil Procedure Code, Cap. 33 R. E 2019. An affidavit of Concalo Vito, the principal officer of the Applicant supports the same. According to the Applicant’s supporting Affidavit, the matter originates from a business agreement between the Applicant and the Respondent in which the Applicant was to sell the trucks to the Respondent. Considering this, the Respondent was asked to make a down payment of 80 %. The remaining 20% was to be paid on the agreed schedule and manner described therein without fail. It was further decided that, during the subsistence of the agreements and for as long as the total purchase price is yet to be paid, the applicant will remain the title holder on the registration cards of the vehicles. The names of the title holders will change when the purchase price has been paid in full, and the residual values have been changed. It appeared that the respondent contravened them by defaulting payments despite several demands from the applicants, leaving an outstanding debt of Tsh. 742,000,000.00/=. Having failed to hold the 2 respondent accountable, and in endeavoring to settle this matter, the applicant demanded payments of the balance of the purchase price agreed from the respondent, where the respondent communicated his failure to pay the demanded balance and his intention to return the said vehicles to the applicant, an offer which the applicant accepted even though the Respondent had used the cars for almost three years. Facts went on that, on diverse dates of 2024, the respondent, through his authorized drivers/agents, delivered the said trucks to the applicants' premises as agreed, thereby ending the business relationship and marking the matter settled. Thus, in the daily pursuit of his business activities, the applicant decided to change the names on the registration cards from the respondent to the applicant's name to sell the said vehicles to another interested party. Upon application to the Tanzania Revenue Authority for the change of names on registration cards, the applicant asked the respondent to sign documents authorizing the same when the respondent refused to cooperate. The applicant decided to move forward and make the changes without involving the respondent by applying to the Tanzania Revenue Authority, an application that has not been successful to date. To their dismay, on 5th 3 June 2024, the premises of the Applicant were raided by a convoy claiming to have a court ruling for the release of the trucks from the applicant's premises. During that time, the applicant became aware of the verdict from the District Court at Temeke. It was averred further that the said proceedings, order, and ruling do not conform to the legal requirements of the Ruling as it fell short of the reasons for which the Magistrate had reached her findings and failed to analyze the evidence and that the said ruling required to be impugned illegality, irrationality, and procedural impropriety and that, the Trial Magistrate erred in law and fact in failing to find that the Respondent misguided the court in his evidence and finally that the trial Court had no jurisdiction to entertain the matter. Due to the above facts, the applicant brought this application to the court, praying for the prayers mentioned above. When served with the application, the respondent entered an appearance, but after he was given the order to file a counter affidavit, he disappeared; thus, the applicant prayed before the court to proceed exparte against the respondent the order, which was pleasantly granted. Hearing of the application was done orally, in which the applicant had a legal representation of Mr. Issa Mrindoko, learned advocate. The 4 respondent did not appear, hence proceeded exparte against her. Submitting in support of the application, Mr. Mrindoko sought leave of the court to adopt the applicant’s affidavit to form part of the proceedings; he said the impugned ruling is against the rules of temporary injunction. He argued that the release of the vehicle suggests that the case has been heard on merit and that the parties’ rights have been conclusively determined. He contended that the applicant was the owner of the cars; hence, there was a law violation that required this court’s revision. It was his prayers that the District Court Decision be quashed as there is no evidence in the main suit where the said application could have originated; thus, the same was issued contrary to the law. I have dispassionately considered the affidavit and the applicant’s submissions to find out whether the applicant's application is meritorious. Gathered from the record, the application by the respondent was brought before the court under order xxxvii Rule 1 (2), 2 (1) of the Civil Procedure Code, which provides that. “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 5 party to the suit or suffering loss of value by reason of its continued use to the suit or wrongly sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.” The above excerpt suggests that an order of injunction has the purpose of preserving the pre-dispute state until the disposal of the suit. This imperative requirement has been extended and refined in the decisions. Abdi Ally Salehe v. Asac Care Unit Ltd & 2 Others, CAT-Civil Revision No. 3 of 2012, where the Court of Appeal of Tanzania held as follows: “The object of this equitable remedy is to preserve the pre-dispute state until the trial or until a named day or further order. In deciding such applications, the Court is only to see a prima facie case, which is one such that it should appear on the record that there is a 6 bonafide contest between the parties and serious questions to be tried. So, at this stage the court cannot prejudice the case of either party. It cannot record a finding on the main controversy involved in the suit, nor can the genuineness of a document be gone into at this stage. Once the court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned for by way of damages. There, the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for worse, that he will suffer damage as a consequence of the plaintiff’s action or omission, provided that the threatened damage is serious, not trivial, minor, illusory, insignificant or technical only. The risk must be in respect of future damage.” The cited decisions convey one key message: a temporary injunctive order should not prejudice the case of either party and should not decide or make a finding on the main controversy involved in the suit. Even in the celebrated case of Atilio vs. Mbowe (1969) HCD 284, the principles for granting temporary injunction are as follows: Firstly, there must be a 7 serious question to be tried by the court and Probability that the plaintiff will be entitled to the reliefs prayed for (in the main suit). Secondly, the temporary injunction is necessary to prevent some irreparable injury befalling while the main case is still pending, and thirdly, on the balance of convenience, more significant hardship and mischief are likely to be suffered by the defendant if the order is granted. Looking at the records of the impugned ruling, it is apparent that the application No.12782 of 2024 arose from the main case, which is Civil Case No. 12781 of 2024. Thus, the counsel’s submission that the application did not originate from the main case is unfounded. The records reveal further that, the orders granted by the court in Misc. Civil Application No.12782 was the order prayed in the main case, Civil Case No. 12781 of 2024. For clarity, in the main case, the respondent prayed for the following orders; i. For an order that the defendant to release the plaintiff’s trucks registered as T 565 DUM - Man Tractor, T 766 DYA - Man Tractor, T 561 DUM - Man Tractor, T 563 DUM- Man Tractor, T 566 DUM - Man Tractor. 8 ii. For perpetual injunction to restrain the defendant from attaching the plaintiff’s trucks registered as T 766 DYA - Man Tractor and T 763 DYA, Man Tractor and other orders. My perusal of the impugned ruling reveals that the trial magistrate ordered that; i. The respondent, his agent, assignee, his servant and whomsoever working under his instructions is ordered to release the above named trucks with Reg; No. T. 566 DUM- make Man Tractor, T.561 DUM- make Man Tractor, T.568 DUM- make Man Tractor, T.553 DUM -make Man Tractor, and 559 DUM- make Man Tractor, held by the respondent head office. ii. The respondent, his against, assignee, his servant, and whoever is working under his instruction are restrained from taking the trucks with Reg; T 766 DYA—make Man Tractor and T 763 DYA—make Man Tractor held at the applicant's office pending the final determination of the application for a temporary injunction between parties. Applying the above authority in the facts of this application, it is apparent that the ruling is against the rules of temporal injunction as the 9 order to release the cars suggests that the main case was determined on merit and the parties' rights have been conclusively determined. For the reasons stated above, I, therefore, invoke the revisional powers bestowed to this court under section 44(1)(b) of the Magistrates Courts Act [Cap. 11 R.E 2019] and proceed to quash the trial court proceedings and set aside the ruling and orders of 31/05/2024. Consequently, the application is allowed with cost. It is so ordered. MWANGA JUDGE. 24/10/2024 COURT: The ruling was delivered at Dar es Salaam on 24th October 2024 in the presence of Mr. George Msandi Adv for the applicant and absence of the Respondent. MWANGA JUDGE. 24/10/2024 10