MRS IMMACULATA INNOCENT NGWANIJE VS FIRST NATIONAL BANK T LTD MISC

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IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC COMMERCIAL CASE NO 140 OF 2015 (From Original Commercial Case No 125 of 2014)

BETWEEN MRS IMMACULATA INNOCENT NGWANIJE------------------------------------------- APPLICANT

VERSUS FIRST NATIONAL BANK TANZANIA LIMITED-------------------------------- 1ST RESPONDENT LEONARD RUSUBAMANYA GWANIJE-------------------------------------------2ND RESPONDENT

RULING Date of Hearing: 1/7/2015 Date of Ruling: 27/7/2015 SONGORO, J The Applicant, Mrs. Immaculate Innocent Ngwanije filed an application to this Court applying for an order to restrain, First National Bank Tanzania Limited, the 1st Respondent, and Leonard Rusubamanya Ngwanije the 2nd Respondent, or their agents from selling the house situated at Plot No 262, Block "D" registered L.O No 65402, Sinza, Dar es Salaam. The application was made under Order XXXVII, Rule 1(a) , Section 68(e) and 95 of the Civil Procedure Code, Cap 33 [R.E 2002] and is supported by an affidavit sworn by Immaculate Innocent Ngwanije, the Applicant. Page 2 of 7 Respondents in the application are First National Bank Tanzania Limited and Leonard Rusubamanya Ngwanije who is the husband of the Applicant. Thus on the 1st July 2015 the application was called for hearing, the Applicant appeared in person, and pursued her application, while the 1st Respondent bank was represented by Mr. Deo Mushi, Learned Advocate, and Leonard Rusubamanya Ngwanije the second Respondent appeared in person. In pursuing her application, Applicant informed the Court that she has filed an application accompanied with an affidavit which bears her complaints. Next, Applicant requested the court to consider her complaint in the affidavit in support of the application. Thus when the court perused the Applicant affidavit it noted

that Applicant stated that, she is married to Leonard Rusubamanya Ngwanije the 2nd Respondent, and has two children with him namely Queen Ngwanije Born on 1/9/1992, and Irene Ngwanije born on 1/6/1995. Then Applicant complained in paragraph 2 of her affidavit that the second Respondent who is her husband, mortgaged a family house without her knowledge which was contrary to the law. Page 3 of 7 She then explained in her affidavit that, she just come to understand about the mortgage transaction on 16/4/2015, after was served with a copy of the Plaint without a court summons. The Applicant then contested in paragraph 3 of her affidavit that the mortgaged property is a family house, and once is sold her family will have no place to stay. In view of the above, the Applicant prayed for the court order to restrain Respondents from selling the said property. In response to the Application, Mr. Deo Mushi, the Learned Advocate for the 1st Respondent bank opposed the application, by stating that the application has no merit. Regarding the Applicant contention that, she is wife of the 2nd Respondent, Counsel for the 1st Respondent argued that Applicant did furnish the court with a marriage certificate, or any relevant document which was to prove if she is the wife of 2nd Respondent. On the bank loan advanced to the 2nd Respondent, the Learned Advocate pointed out that when the loan was

being processed and advanced to the 2nd Respondent, the 2nd Respondent who was the borrower, firmly informed the bank that, he has no wife and to prove that he a signed declaration to that effect. To prove that, the Counsel for the 1st Respondent bank, he attached FNB No 1. He then contested that the Mortgagor who is the 2nd Page 4 of 7 Respondent did not disclose to the Bank that he has a spouse and since that was not mentioned then the application has no merit. Also, the 1st Respondent Bank informed the court that, so far there is no notice for sale of the said house which was issued by the 1st Respondent bank. Mr. Mushi then clarified that what was issued by the 1st Respondent bank to the 2nd Respondent was a default notice. While on this point, the Learned Counsel for the 1st Respondent maintained that, due to the fact that there is no a notice of sale which has been issued the Applicant application is totally misconceived. For reasons he explained, Mr. Mushi prayed for the dismissal of the application for lack of merit. On his part, Mr. Leonard Rusumbanya Ngwanije, the 2rd Respondent also made a reply to the application, and he admitted that he issued his Certificate of Right of Occupancy as a guarantee to the loan which he took from the 1st Respondent bank. He also admitted that did not involve the Applicant who was his second wife, married in 1990. On the lack of

marriage certificate, the 2nd Respondent informed the court that going by a Christian faith and norms he may not secure a marriage certificate for the 2nd wife. He therefore left the matter for the court to decide. Page 5 of 7 The court has carefully considered the Applicant's application for temporary injunction for an order to restrain Respondents from selling the house on Plot No 262 and honestly find an Order of temporary Injunction under Order XXXVIII Rule 1 (a) of the Civil Procedure Code, Cap 33 [R.E 20021 is issued by discretion of the court where is a danger that the property may be damaged or wasted or alienated by any of the party to the suit and there is a risk of suffering loss of value. In deed Rule 1(a) of Order XXXVIII of Cap 33 states that; Where in any suit it is proved by affidavit or otherwise- (l)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 of its continued use by any party to the suit, or wrongly sold in execution of a decree; or Thus going by wording of Order XXXVIII of Cap 33 for an injunction to be issued, the Applicant was supposed to prove in her affidavit that there is a danger on the property being wasted or damaged or alienated by any of the parties. In other words there must be a compelling need to protect the property from such danger.

But the Application in her affidavit did not, if there was any looming notice or Order of intention to sale the said property. One would have expected that the Applicant in her affidavit would have at least disclosed in her affidavit, if she or the 2nd Respondent was served with a "notice" or an "order" of intention to sell a mortgaged house. After all the Applicant did not annexed to her Applicant any notice or order of intention to sale the property. Since the court was not furnished with any credible and convincing evidence that the 1st Respondent bank has issued "a notice o f intention" to sale the house, or there is any order of sale as alleged in her affidavit, I find the Applicant did not establish sufficient justification for the court to make an order of temporary injunction. By the way it seems to me, if at all, Applicant she was served with a copy of plaint, without a court summons as claimed in her affidavit it support of the application, then one would have expected her, if is she interested on the matter, to apply to be joined as a party to the suit, and pursue her rights if any. Reverting back to the application, as explained above, I did see not any substantial reasons for granting an injunction because there was no notice of intention of sell the house, I find there is no need for the court to exercise its discretion and issue an order of temporary injunction to Respondents. On the foregoing reasons, I hereby dismiss the application. Since, Applicant was not a party to the suit, I order each party to bears his own costs. Dated at Dar es Salaam this 27th day of July, 2015 Page 7 of 7 The Ruling was delivered in the presence of Ms Immaculata the Applicant, Mr. Deo Mushi for the Respondent Bank and 2nd Respondent.