mussa s kaboyonga vs issa siraju juma others 2019 tzhclandd 21 9 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 359 OF 2019 MUSSA S. KABOYONGA (As Administrator of the Estate of the late Siraju Kaboyonga Jum a).....................APPLICANT Versus 1. ISSA SIRAJU JUMA.................. . .1st RESPONDENT 2. TPB BANK PLC ................ .......... . .2nd RESPONDENT 3. STEVE TIMOTHY WAMBURA.... . .3rd RESPONDENT 4. REGISTRAR OF TITLES................ 4th RESPONDENT 5. COMMISSIONER FOR LANDS....... 5th RESPONDENT 6. HONORABLE ATTORNEY GENERAL ,6th RESPONDENT RULING OPIYO, J. The application is for temporary injunction made under order XXXVII Rule 1 (a), 2(1) and section 68 (c) and (e) of the Civil Procedure Code, Cap. 33 RE 2002, pending determination of the main suit, Land Case No. 84/2019. The prayer is supported by affidavit of Juma Siraju Kaboyonga as the administrator of the estate of the late Siraju Kaboyonga Juma. In support of the application, the Mr. Hardson Mchau, counsel for the applicant submitted in support of the application that the applicant and 1st respondent are blood brothers born to the late Siraju Kaboyonga Juma who died on 18/12/2012. After his death plot No.518 Block 44 area 16 - CT No. 186249/88 at Kijitonyama area was assigned to the applicant on behalf l of the children of the deceased. The late late Siraju Kaboyonga Juma in 2012 had secured that particular property in guaranteeing the 1st Respondent to secure loan amounting to 30,000,000/= (say Thirty Million only). In 2014 the first respondent took another overdraft facility to the tune of 40,000,000/= (say Forty Million) from 2nd Respondent (hereinafter referred to as 'second overdraft') based on the same property as security. At the time of second overdraft the guarantor, the late Siraju Juma Kaboyonga had already died. That, the 1st Respondent guaranteed himself using the disputed property as an administrator of the late Siraju Juma Kaboyonga. He continued to submit that on 15/3/2019, the 3rd Respondent went to the disputed property together with Street administrator and served Mr. Juma Kaboyonga Juma with notice of vacant possession of the disputed property. This prompted the applicant to conduct official search which revealed that the disputed plot had already been transferred to the 3rd Respondent. He contended that his prayer is well in line with what was enunciated in the case of Atilio V. Mbowe (1969) HCD 284, one is, there must be serious triable issue. Second is whether the court interference is necessary to stop irreparable loss. Third is Balance of inconvenience between the parties. Submitting on the first condition he submitted that, the 1st triable issue is based on the second over draft facility, whether it was proper or not, in that when the 2nd over draft facility was granted the guarantor had already died. The first respondent who acquired the overdraft guaranteed himself as the administrator of the estate of the late Juma Siraju Kaboyonga. Second issue is the sale of the property by 2nd Respondent to the 3rd Respondent. In counter affidavits of 2nd and 3rd respondents they have not shown if sale took place. No document shows that the property was indeed sold to the 3rd respondent. Number three, in transfer of title from Siraju Kaboyonga Juma to the 3rd Respondent no document is attached to the counter affidavit showing that the transfer was really accord. On condition No. 2 the issue is that the disputed house is applied as hostel, thus, the applicant has entered into agreement with some students for rent. So there are Rights of 3rd parties to be determined in relation to the disputed property. Therefore if the court does not interfere applicant will suffer some injuries, among others is that, there are properties of applicant in the disputed property. Also there are some tenants as pleaded in paragraph 13 of the affidavit who have lease agreement with the applicant. Therefore the applicant will suffer irreparable loss if that is not protected. On the 3rd condition, balance of inconvenience he submitted that, the applicant will suffer more as the other properties which are in the disputed property are not properties of the 3rd Respondent but of the applicant. Also there are some tenants who are trading in the building. So, denial of injunctive order will interfere seriously on the rights of third parties. After all the3rd Respondent bought plot No. 518 not properties which are therein. Based on those points he prayed for the injunctive order to restrain 3rd Respondent and his agents' servants from evicting any persons residing therein, or disturbing any person therein, pending hearing and determination of the main suit. He also prayed for costs of this suit. The first respondent had no objection to the prayer for temporary injunction. 3 The second respondent through her advocate, one Elisay submitted in objection to the application after adoption of their counter affidavit that on 2012 August the 1st respondent took a loan of 30 million which was to be repaid in 12 months which was renewed in 2014 to the tune of 40 million and landed property on plot No 518 at Kijitonyama was mortgaged to secure the loan. This was guaranteed by Issa Juma Siraju as administrator of the estate of the late Siraju K. Juma, the 1st respondent, who signed the documents to that effect. He default the repayment that is when the 2nd Respondent invoked his power of sale and sold the property to the 3rd respondent. The counsel cited the case of TA Kahare V. General Manager Mara Cooperative Union (1994) Ltd. (1997) TLR 17 where the main three guiding principles to guid the court in such applications were set out to include whether there is bona fide contest between the parties, on which side in the event of plaintiff's success will be the balance of inconvenience and whether in an occasion will protect the party to irreparable injury. She further submitted that there is no triable issue in this application. That, they do not find it a triable issue the argument that they did not annex the sale of the house as argued by the applicant's counsel. After all, the same has not been raised in the applicant's pleadings. She submitted that the 1st respondent did not guaranteed himself rather as administrator of the estate the 1st respondent was by then the administrator of the estate and there is nothing bad by him doing so as the owner had passed away and he was the one who administered his estate. Based on the second condition, the counsel disputed the argument that the disputed property is used as hostel by submitting that. If at all it is the tenants who are not parties to this application that are to be affected and applicant cannot plead on their behalf. She further argued that on the third condition that on balance of convenience the applicant will suffer loss since what is in the property is not for the 3rd respondent/ she argued that on the 9/8/2019 the advocate for the applicant introduced one Juma Kaboyonga as one who was living in the premises whose properties were taken from the house, thus the prayer has been overtaken by events. She contended, taking into consideration that 2rd Respondent is a bank doing banking business meaning borrowers must pay for the back to subsist. She cited the cases of Hydrox Industrial Services Ltd & Another V. CRDB 1996 Ltd & 2 others High Court DSM Civil Case No. 194 of 1999 at pg. 17 and 19. Where it was held that court should not act as a bush for borrowers to hide and case of General Tyre East Africa Ltd HSBC Bank PLC (2006) TLR 60 in which the court held that Bank and customer ought to respect their contractual conditions. The case of NBC v DSM Education and office stationary (1995) TLR 272 the courts interference was to be limited where mortgagee is selling in enforcement of contractual mortgage deed. The thus, prayed for the application to be struck out for being baseless with cost. Mr. Muya, counsel for the third defendant argued that the application has already been overtaken by events because the application was filed on 8th July, 2019 with the prayer to restrain the 3rd respondent from evicting residents therein while eviction had already taken place since 4/7/2019 as per eviction document attached to the affidavit (reference in paragraph 13 5 of the said affidavit). He submitted that granting injunctive order for the event that has already taken place will lead to confusion. If at all the applicant was to apply for nullification of eviction that had already taken place. He continued to argue that, granting injunction is not an automatic right, but applicant must state convincing facts to the satisfaction of the court citing the cases of Ibrahim v. Ngaiza (1971) HCD 249 and Christopher P. Chale v Commercial Bank of Africa Misc. Civil Application No.635 of 2017 to substantiate his arguments. He contended that the well set principles in the above cases have not been met by the applicant to warrant granting injunction. The law requires meeting all the requisite conditions not meeting the same in alternative. His further submission is that, it is well narrated in 3rd defendants counter affidavit, paragraphs 6, 7, 8, 9 and 10 how the 3rd respondent saw advertisement in Habari Leo Newspaper of 8th May, 2016. He got interested and attended the auction and emerged the winner in bid. After the purchase the second respondent assisted him in transferring title. That, the third respondent is the one who is currently holding title to the property. Although originally he could not proceed with transfer process as there was civil case No.216/2016 involving same plot, but on October 29th 2018, the said suit was truck out the fact which paved the way for them to proceed with transfer. So, legally the applicants are trespassers to the property of the 3rd respondent. He also argued that when the bank entered into agreement with 1st respondent, he was the administrator of the estate of the guarantor as appointed in 2013 as per the copy of letter of administration of by the 1st respondent attached. Thus, what took place was legal in the eyes of the law to the extent that the applicant, being an administrator from 2019, he has no power over transaction that took place during administration of 1st respondent. He contended that, when the 1st respondent guaranteed the loan as an administrator, he knew that bank will recover the loan from the same security, so it is a big surprise to see that the applicant and his brother, 1st respondent intend to benefit form their own wrong, if at all. That, 3rd Respondent has already paid 200,000,000/= since 4 years without benefiting from his property, so, it is the 3rd respondent who is suffering irreparable loss not them. They intend to use court to hide their injustice. On balance of inconvenience, if this court thinks it is proper to order the injunctive order, it is the 3rd respondent that will suffer than the applicants as he bought the house for commercial purpose which he has not reaped so far. Lastly, he prayed that, the application being meritless, as it has already been taken by events, it should be dismissed with costs. In rejoinder, Mr. Hardson, stated that as the application is against 3rd respondent, the counter affidavit of 2nd respondent does not state the story Elisay has given, only para 8 and 9 speaks something, thus most of her submissions are mere assertions from the bar and the cases distinguishable because the applicant prayers in this application are against the 3rd respondent and not the bank, second respondent herein. He also submitted that, it is for the court to determine whether granting of the application will lead to confusion, not the counsel for the 3rd 7 respondent, as the court is aware of the existing status quo of the disputed property from site visit it conducted. He thus, reiterated his prayer for the application to be granted with costs. I have gone through the submissions of all sides in this application and gone through their respective affidavits. The issue before this court at this juncture is to consider whether the applicant's application before this court has merits. In order to answer the above question, I will start by referring to the land mark case of Attilio vs. Mbowe (1969) HCD 284 which established the conditions which are required for the grant of an application for temporary injunction. The above case laid down three conditions which are; (i) There must be a serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed. (ii) That, the court's interference is necessary to protect the plaintiff from the kind o f injury which may be irreparable before his legal rights is established, and (Hi) That, on the balance o f probabilities there will be hardship and mischief suffered by the plaintiff from the withholding o f the injunction than will suffered by the defendant from the granting o f it Also the case of Suryakant D Ramji vs Saving and Finance Limited and Others (2000) TLR 121 the court laid down three conditions which must be satisfied by the applicant, that 8 "the basis for granting temporary injunction is that there should be in existence o f a serious triable issue between the parties, a looming danger o f irreparable injury o f the plaintiff and on balance o f convenience, the existence o f more sufferings by plaintiffif the injunction is refused than would be the case with the defendants if granted; between the two therefore the plaintiffstands to lose more if the injunction is refused'. Starting with the first condition that there must be serious issues and arguable questions requiring the determination of this court, and probability that the plaintiff will be entitled to the relief prayed; I find that this condition has been met as there is disputed fact on the ownership of the disputed property, if it still belong to the applicant as an administrator of the estate of the Siraju Kaboyonga Juma or to third respondent as a purchaser through a valid sale. Thus, provided there are contested facts, this condition is not hard to prove. Coming to the second condition that the court interference is necessary so as to protect the applicant from the kind of injury which may be irreparable before his legal right is established; my finding is that, in this application, in case applicant will be entitled to the reliefs prayed, the kind of injury which may be occasioned to the applicant more or less affect the third parties more that the applicant who is not residents therein. The justification the applicant advances is the monetary gain from the alleged rent, and loss to those third party tenants. The respondents submitted that, the prayer of refraining 3rd respondent from evicting the residents therein has been overtaken by events as they have already been evicted before this 9 application came in place, the fact that is highly disputed by the applicant. After rival arguments on the existing state of affairs of the disputed property, court had a chance to visit locus in quo after failing to determine the application without visiting the locus in quo to find out the existing state of affairs therein, whether eviction has taken place or not. At the site visit, the court found that, it is the 3rd respondent who was in possession of the disputed property after forceful eviction on 4th/7/2019. He had deployed security guards to secure the place, and all the operations at the site were not active, as the alleged students were no longer in occupation, save for one shop that was open on that day and stationary which though closed on that day, it was confirmed it was still running. As a result the court came to note that there are rights of 3rd parties that were to be affected in the course of further eviction as tenants to the disputed property. Therefore, in the view of this court, since the eviction was only partly successful there is a need to preserve the disputed property in the state the court found it on the day of site visit, pending determination of the main suit to allow balanced convenience on both sides. This is, allowing the prayer not to evict only the third parties against whom the eviction was not completed by the time of site visit, i.e. the shop and the stationary tenants. For the rest, the court is hesitant to award the prayer that has been overtaken by events. In the circumstances, I need not dwell in detail on the third condition as the existing circumstances calls for a balanced convenience on both sides as noted above. I therefore proceed to order that the application is partly allowed to the extent that:- 10 1. The 3rd respondent, his agents, servants, assignees all or whosoever will be acting through him are refrained from harassing/disturbing or evicting the two tenants (small shop and stationary) who were continuing with business at the disputed property during the site visit, to the disputed property conducted on 23/6/2019 pending expiry of their tenancy contract or determination of the Land Case no 84/2019 whichever comes first. 2. The 3rd respondent to maintain the disputed property in its current status pending determination of main suit, Land Case No.84/2019. 3. The applicant is allowed to collect his properties that are still lagging at the disputed premises after eviction in presence of both sides under the supervision of street leadership. 4. No order as to costs own costs. M. P. OPIYO JUDGE 9/ 9/2019 li