MIsc

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM MISC. LAND APPLICATION No. 3129 OF 2024 (Arising from Land Case No.2875 of2024) PATRICK EDWARD MOSHI..................................... APPLICANT

VERSUS NCBA BANK OF TANZANIA LTD....................... 1st RESPONDENT EL MALIK ABOUT T/A SANTANA INVESTMENT LTD........................................ 2nd RESPONDENT ELIZABETH WILLILO MANGESHO................ 3rd RESPONDENT

REGISTERED TRUSTEES OF LUTHERAN CHURCH OF TANZANIA................. 4th RESPONDENT YONO AUCTION MART AND COMPANY LTD....5th RESPONDENT

RULING 3(P April 2024 & 24" May, 2024 L. HEMED, J, This application has been preferred under Order XXXVII Rule 1&4 of the Civil Procedure Code, [Cap.33 R.E 2019] seeking for an order that "status quo be maintained pending determination of the main suit', that is Land Case No. 2875 of 2024. The application has been supported by i the affidavit of the Applicant and resisted by the 1st, 2nd, 3rd, 4th and 5th respondents. Hearing of it was by way of written submissions. Mr. Benedict Bahati Bagiliye, advocate acted for the Applicant. The 1st and 5th respondents were represented by Mr. Thomas Sipemba, advocate while the 3rd and 4th respondents enjoyed the legal service of Ms. Joan Mwesigwa, learned advocate. I have gone through the rival submissions. The pertinent question to be answered is whether the application is meritorious. One of the provision under which this application has been brought is Order XXXVII Rule 1 of the Civil Procedure Code {supra} which provides thus:- '7. 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 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 । (b) that the defendant threatens, or intends to remove or dispose of his property with a view to

defraud his creditors... "[Emphasis added] The above provision lays conditions under which an injunctive order can be granted in respect of the disputed property. Such conditions are as fol lows:- 1. The property must be in danger of being- fi) wasted, damaged, or alienated by any party to the suit; or (ii) suffering loss of value by reason of its continued use by any party to the suit; or (iii) wrongly sold in execution of a decree; or 2. The defendant threatens, or intends to remove or dispose of his property with a view to defraud creditors. 3 According to the affidavit deponed to support the application, the Applicant alleges to own the suit landed properties known as plots No. 588, 589 and 590 Mbezi Beach - Dar es Salaam. He has also averred that he guaranteed the loan which was obtained by Patco Enterprises (T) Limited in July 2007 from African Banking Corporation (T) Limited and later with United Bank of Africa Limited (UBA). The borrowing company defaulted in servicing the loan which led to the issuance of 60 days notice for payment ofTZS. 914,547,908.41/=. It is also very clear from the averment of the Applicant that the suit properties have already been sold. This being the case, the question that needs to be addressed is whether, the conditions provided under Order XXXVII Rule 1 of the Civil Procedure Code (supra) have been met. Going through the affidavit and the

submissions made by the Applicant, there is nowhere stated that the suit properties are in danger of being wasted, damaged, or alienated by the respondent. The Applicant has not said if he will suffer loss of value by reason of its continued use of the property by the respondent. What I have noted from the affidavit and submissions is that, the Applicant is complaining about the process of disposing the suit landed properties. He alleges that the 1st Respondent had no mandate to authorize the 2nd Respondent to dispose of the suit landed properties and that the 2nd Respondent had no valid licence to conduct the auction. The Applicant also faults the auction itself on the ground that procedures were not adhered to. These grounds, do not fit squarely within the conditions provided under Order XXXVII Rule 1 of the CPC. They are thus not good grounds fit to grant the instant application. I am also aware of the decision in Atilio vs. Mbowe [1969] HCD 284, where Hon. Georges, C.J, did set the following criteria in granting the order of injunction, that: i. There must be a serious question to be tried on the facts alleged, and the probability that the plaintiff will be entitled to the relief prayed; ii. The Applicant stands to suffer irreparable loss requiring the courts intervention before the applicants legal right is established; and 5' iii. That, on the balance of convenience,

there will be greater hardship and mischief suffered by the Applicant from withholding of the injunction than will be suffered by the Respondent from granting it. In the light of the conditions herein above, the question is whether the instant case meets them. Having examined the rival affidavits and submissions I realized that the Applicant admits that there was default in servicing the loan which he guaranteed by pledging the suit premises as security. He also admits that the suit premises were sold due to that default. This being the case, I do not find primafacie case having been established to warrant the court to grant the orders sought. I have also read all 37 paragraphs of the affidavit together with submission that support the application, I could not find any deposition made showing irreparable loss to be suffered by the Applicant if the order sought is refused. Failure to demonstrate irreparable loss entitles the court to withhold the injunctive order. It is trite law that the three conditions propounded in Atilio vs. Mbowe {supra) must be met cumulatively. In the instant case, the Applicant has failed to meet two conditions. In that regard, I cannot labour to proceed to determine the 3rd condition. Additionally, I have taken judicial notice that previously, the Applicant was sued in this court by Commercial Bank of Africa for recovery of TZS. 1.1 Billion or sell of

the suit mortgaged properties. The suit initiated through Land Case No. 49 of 2011 which ended in favour of the Bank. In other words, the Applicant lost in that case and the decision in the said case has never been varied. This being the case, the court cannot issue injunctive order against its decree. In the final analysis, I find no merits in the instant application. I do hereby proceed to dismiss it with costs. Order accordingly. 7