NEEMAN MAKONGORO SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 3377 OF 2024 NEEMAN LAZARO MAKONGORO (As Administrator of The Estate of the late Awadhi Zuberi Athumani)....................................... 1st APPLICANT URBAN AND RURAL ENGINEERING SERVICES LIMITED................................................................... 2nd APPLICANT VERSUS AMANA BANK LIMITED RESPONDENT RULING Date of last Order: 25/2/2025 Date of Ruling: 28/2/2025 LALTAIKA, J. The applicants herein NEEMAN LAZARO MAKONGORO (As Administrator of The Estate of the late Awadhi Zuberi Athumani) and URBAN AND RURAL ENGINEERING SERVICES LIMITED have moved this court under Order XXXVII Rule 1(a) and Section 68(e) of the Civil Procedure Code [Cap 33 R.E. 2019], seeking an order for a temporary 1 injunction to restrain the respondents from dealing with the suit property pending the determination of Land Case No. 2969 of 2025. The application is supported by an affidavit sworn by the 1st Applicant and the and 2nd Applicants Director, while the respondents filed a counter­ affidavit objecting to the relief sought. Hearing of the application on 25/2/2025 was initially scheduled to take place virtually but later ordered to proceed physically. Whereas Mr. Elisha Daniel, learned Counsel, advocated for the Applicants, the Respondent enjoyed the legal services of Mr. Haji Sama, learned Advocate. The next part of this Ruling is a summary of submissions by Counsel followed by my analysis of the law and the verdict. Mr. Elisha, Counsel for the Applicant, explained that the Applicants sought to restrain the Respondent from conducting a public auction, transferring, selling, or conducting eviction in respect of the suit properties, which he proceeded to list as follows: 1. Landed property with certificate of Title (CT) No. 102314, Plot No. 74, Block D, Kinondoni Municipality. 2. Landed property with CT No. 70553, Plot No. 34, Block 2, Mivumoni, Kinondoni, Dar es Salaam. 3. Landed property, Plot No. 308, Block A, Sinza, Ubungo, Dar es Salaam. 4. Landed property, CT No. 155269, MG Plot No. 181, Block A, Zegereni, Kibaha. 2 5. Landed property, CT No. 154751, MG Plot No. 179, Block A, Zegereni Area, Kibaha. 6. Landed property, CT No. 154693, Plot No. 50, Block R, Mapinga, Bagamoyo. 7. Landed property, CT No. 154660, Plot No. 47, Block R, Mapinga. Mr. Elisha submitted that the case of ATILIO v. MBOWE (1968) HCD 284 established principles governing applications for a temporary injunction, which required the applicant to demonstrate the existence of a prima facie case, the likelihood of suffering irreparable loss, and that the balance of convenience should tilt in the applicant's favor. On the first issue regarding the existence of a prima facie case, he contended that there were triable issues to be determined in Land Case No. 2969 of 2025, which was pending before the court. He referred to paragraphs 3 to 11 of both supporting affidavits, which raised concerns regarding the existence of a Mortgage Deed and the legality of the mortgage, if any. He further argued that the procedure for exercising the right to sell mortgaged land had been questioned, as the Respondent had not issued a notice of intention to sell the mortgaged property. Instead, Counsel averred, the Respondent had merely initiated the process by painting on the walls of the first three properties named above, stating that they were subject to a public auction by Amana Bank. 3 According to Mr. Elisha, this fact alone constituted a triable issue that required determination in the pending land case. Regarding the second condition, which related to the likelihood of suffering irreparable loss, Mr. Elisha contended that, as stated in the supporting affidavit, the 1st Applicant was in possession of the first two properties, which were used by her family for residential purposes. If the injunction was not granted, Counsel averred, she and her family would be rendered homeless, leading to a series of unnecessary lawsuits. Similarly, he asserted that the 2nd Applicant was in possession of the third to seventh properties, which were used for business purposes. If the injunctive order was not granted, Mr. Elisha reasoned, the 2nd Applicant would lose its business property, resulting in unnecessary economic hardship. Based on these facts, he maintained that the Applicants would suffer irreparable loss if the injunction was not granted. On the third requirement—the balance of convenience—Mr. Elisha contended that the Applicants stood to be inconvenienced more than the Respondent. He pointed out that the Respondents had granted the loan to fund a project and had participated in discussions regarding payment with 4 REA (Rural Energy Agency). He argued that there was a high probability that, once REA processed the payment, the Respondents would receive their money. If the application was not granted, Counsel emphasized, the Applicants were more likely to suffer irreparable loss, as the 1st Applicant's family would lose their home, and the 2nd Applicant would lose its business premises and facilities. Based on the foregoing, Mr. Elisha prayed for the court to grant the orders sought in the chamber summons. Mr. Sama, Counsel for the Respondent, vehemently objected the Application. He observed that the Applicants had relied on the celebrated case of ATILIO v. MBOWE (supra) but sought to emphasize the position stated in CHRISTOPHER P. CHALLE v. COMMERCIAL BANK OF AFRICA Mise. Civil Application No. 635 of 2017 TANZLII, which held that: all conditions set out must all be. met. And so, meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction. Mr. Sama identified the key issue as whether the Applicants had demonstrated merits in their affidavit sufficient for the court to exercise its 5 discretionary power. Addressing the first condition, he referred to MARIAM CHRISTOPHER v. EQUITY BANK (T) LTD and CHRISTOPHER MAKINDI EDWARD Mise. Land Application No. 1070 of 2017 which required two conditions to be met: (i) The leave sought by the Applicant had to be one that the court was capable of awarding, (ii) The Applicant had to show at the very minimum that, in the absence of rebuttal evidence, they were entitled to the relief sought. Mr. Sama strongly argued that, based on paragraphs 1 and 17 of the 1st Applicant's affidavit and paragraph 11 of the 2nd Applicant's affidavit, the Respondents' counter affidavit (paragraph 3) maintained that the Respondents had never been served with a summons or plain document regarding the pending case. He asserted that these facts remained uncontested, as no reply to the counter affidavit had been requested or filed. The Respondents contended that no proof of marriage or an official search from BRELA in respect of the 2nd Applicant had been annexed to the affidavit to support the allegations. Furthermore, no reply had been filed to contest this assertion, leading him to conclude that the Applicants had failed to demonstrate the first condition. 6 Turning to the second condition, he explained that it entailed two elements: first, the existence of a substantial or material injury that could not be adequately compensated by damages, and second, the Respondents' financial incapacity to remedy the injury. These, he stressed, had to be demonstrated and proved by the Applicants through their affidavit. He noted that the 1st Applicant had stated that the 1st and 2nd premises were her sole home and that she would become homeless if the auction proceeded. However, she had failed to demonstrate that the Respondents lacked the financial capacity/ to indemnify the Applicants in the event they succeeded in the suit. To buttress his arguments, he cited NATIONAL FURNITURE LTD v. EXIM BANK LTD and 2 ORS Mise. Land Case No. 1002 of 2016 TANZLII. Regarding the third condition, he contended that the Respondents would suffer greater hardship. He emphasized that the Respondents were a business institution that generated income from financing facilities. A failure to service a financing facility, he argued, would render the Respondents unprofitable, jeopardize their ability to meet their obligations, and potentially lead to bankruptcy. 7 He further stressed that the amount financed to the 2nd Applicant, which was secured by the suit premises, was public money. He cited MOHAMED IQBAL HAJI v. ZADIMU INVESTMENT LTD Mise. Land Application No. 5 of 2020, which emphasized that banks must recover their loans to remain in business. In conclusion, Mr. Sama submitted that the Applicants had failed to justify the issuance of the orders sought. He recalled the words of the Supreme Court of Kenya in the Consolidated Presidential Election Petition of 2022, where Her Ladyship Chief Justice Martha Koome remarked that the evidence presented had amounted to nothing more than hot air. With that, he prayed that the application is dismissed with cost. Mr. Elisha, in his rejoinder submission, maintained that the applicants had demonstrated the existence of triable issues in Land Case No. 2969 of 2025. Addressing the issue of irreparable loss, he asserted that the applicants had sufficiently demonstrated that they would suffer irreparable loss if the application were not granted. He dismissed the respondents' contention that they were capable of providing remedies, arguing that such 8 an assertion was untenable, as it was impossible to remedy the plight of a homeless person who also suffered greater emotional distress. Regarding the balance of convenience, he emphasized that the financing in question was for a public project under the Rural Energy Authority REA, with the corresponding payment still pending. He explained that once the payment was processed, the respondents would receive their money. However, if the application were not granted, the applicants would lose their property due to claims that public funds had been used to finance the project. Considering these circumstances, he urged the court to consider the uniqueness of the case and grant the application. I have dispassionately considered the pleadings, submissions, and the applicable legal principles. The law governing the grant of injunctions is well settled. As articulated in ATILIO v. MBOWE [1969] HCD No. 284, the applicant must satisfy the following three conditions: 1. The existence of a prime facie case with a probability of success. 2. That the applicant stands to suffer irreparable loss which cannot be adequately compensated by damages. 3. That the balance of convenience favors the applicant. 9 On a Prima Facie Case, the applicants argue that they have a valid claim over the suit property, which is the subject of litigation in Land Case No. 2969 of 2025. At paragraphs 3 to 11 of both supporting affidavits, they raised concerns regarding the existence of a Mortgage Deed and the legality of the mortgage, if any. At this stage I am barred from assessing the pending suit in depth as that would amount to prejudging. However, based on the materials before this court, the applicants have sufficiently demonstrated triable issues hence the existence of a prima facie case. For an injunction to be granted, the applicant must establish that they will suffer irreparable harm if the order is not issued. The applicants have submitted that they will be rendered homeless should the injunction be denied. I entertain no doubt in agreeing with Mr. Elisha that the loss of a home constitutes irreparable harm, as monetary compensation is inadequate to remedy the emotional and social consequences of displacement. The respondents' argument that financial compensation is available does not hold weight in this case, as the applicants' potential suffering extends beyond mere monetary loss. The second condition is therefore satisfied. 10 On the Balance of Convenience, the court must weigh the relative hardship of granting or denying the injunction. The applicants argue that the property in question is their only residence, while the respondents contend that they are entitled to proceed with their claims, However, the applicants have pointed out that the financial transactions in question relate to a public project (REA), and the respondents will be compensated once the funds are processed. It is my considered view that the applicants risk losing their property due to claims of public funds being used for its financing, which would cause them greater hardship than the respondents would suffer by a temporary delay. As emphasized in NATIONAL FURNITURE LTD v. EXIM BANK LTD and 2 ORS, Mise. Land Case No. 1002 of 2016, TANZLII, where the risk of permanent loss to one party outweighs the temporary inconvenience to another, an injunction should be granted. It must be emphasized that a temporary injunction neither clears the debt nor lasts forever. In the upshot, it is my holding that the applicants have met all three conditions for the grant of an interim injunction. Consequently, the 11 application is hereby granted. The respondents, their agents, or any other persons acting on their behalf are restrained from selling, transferring, or otherwise dealing with the suit property pending the final determination of Land Case No. 2969 of 2025. Costs shall abide by the outcome of the main suit. It is so ordered E.I. LALTAIKA JUDGE 28.02.2025 Court: Ruling delivered in Court Chambers this 28th day of February 2025 in the presence of Mr. Haji Sama, Counsel for the Respondents and in the absence of the Applicants and/or their Counsel. 12