Penzia Nicodemus Haule v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA MISCELLANEOUS LAND APPLICATION NO. 25044 OF 2024 (Original Land Case No, 23735/2024 of the High Court of Tanzania at Iringa.) PENZIA NICODEMUS HAULE ................... APPLICANT

VERSUS VERTEX GROUP EXPERTS LIMITED ............................. RESPONDENT

RULING ].T Nov &27h Dec, 2024 D.B. NDUNGURU, J: The applicant filed this application under certificate of urgency for an order of temporary injunction under section 68(e) and Order XXXVII Rule 1(1) of the Civil Procedure Code [Cap 33 RE 2022]. She seeks that this court be pleased to issue an interim injunction restraining the respondent, her servants and agents from entering and remaining in the suit property at Plot No. 77 Block N, Makambako area (suit property) pending determination of the suit. The application is supported by the affidavit of the applicant herself. In her affidavit, she averred that she was the lawful wife of the late i Thobias Mbilinyi who was the lawful owner of the suit property. Being the lawful wife, the suit property was acquired jointly, thus, was among the matrimonial properties. She averred further that on 25th August 2024, the respondent forcefully trespassed into the suit property claiming to be the lawful owner. In her counter affidavit, the respondent resisted the application. She stated that the suit property was the property of Nazareti Company Ltd, It was later mortgaged to Grofin SGB Ltd. It was then sold tp the respondent due to failure by Nazareti Company Ltd to pay the loan. In the hearing of the application Mr. Moses Ambindwile, learned advocate appeared for the applicant whereas Mr. Tumaini Mfinanga, learned advocate represented the

respondent. In supporting the application, the applicant's counsel adopted the applicant's affidavit. He contended that the applicant has demonstrated good reasons for the court to grant this application. He contended further that the applicant being the legal wife of the deceased, one Haule/Mbilinyi is the legal owner of the suit property as the property was acquired during 2 the subsistence of their marriage. The respondent has, thus, trespassed into the suit property ordering the applicant to vacate the suit property. He argued further that unless temporary injunction is issued against the respondent, the applicant will suffer irreparable loss as the applicant operates a dispensary in the suit property providing health services to the public. Thus, endangering health incase death occurs, the same cannot be compensated. He also argued that on the balance of convenience, the applicant stands to suffer more if the application is not granted than the respondent. In his view, the applicant will suffer more as she has invested heavily on the suit property providing health services to the community unlike the respondent who will not be prejudiced if the application is granted. The respondent's counsel on the other hand strongly disputed the applicant's application. He argued that the applicant has not met the principles set in Atilio v. Mbowe (1969) HCD 284. He argued further

that the applicant has not established a prima facie case as she has not provided evidence showing that the late Thobias Mbilinyi was the legal owner of the suit property, marriage certificate alone is not sufficient proof 3 of ownership. In addition, he argued that there is no law that prohibits spouses from owning properties separately. To cement his argument, he cited the case of Trustees of Anglican Church Diocese of Western Tanganyika v. Bulimanyi Village Council & 2 Others, Miscellaneous Civil Application No. 1/2022, High Court of Tanzania - Kigoma (unreported) which emphasizes on the presence of documents to establish ownership. On the second principle of whether the applicant will suffer irreparable loss, the respondent's counsel argued that the applicant has not provided any evidence to prove the actual loss she will suffer but rather she has a mere fear of loss. In his view, the applicant's mere statement that the respondent has illegally entered the suit property needs to be backed up by evidence as such is a criminal offence. He urged the court to dismiss the application with costs as it is intended to deprive the respondent the right to use the suit property. In rejoinder, the applicant's counsel reiterated his submissions in chief. He insisted that the applicant has established a prime facie case on the balance of probability as she has proved that she was the

lawful wife of 4 the late Mbilinyi, thus, the property could not be used as a collateral without spouse consent. In determining this application, I will consider the record, pleadings and parties' submissions. Applications of this nature are within the discretion of the court. Such discretion must however be exercised judiciously. Court has set criteria to be applied in exercising such discretion. The criteria were set in Atilio's case. The said principles are one, there is a prima facie case; two the applicant will suffer irreparable loss once injunction is not granted; and lastly, on the balance of convenience the applicant is likely to suffer more if the injunction is not granted than the respondent. The issue for my determination, therefore, is whether the applicant has met the three principles outlined above. The record shows that the late Thobias Mbilinyi had secured: a loan from Grofin AGB Limited for Nazareth Medical Centre Limited. The deceased failed to service the loan, therefore, the suit property was sold to the respondent. Therefore, the respondent is a bona fide purchaser. The fact that the applicant is the lawful wife of the 5 deceased is not the only proof that the suit property is a matrimonial property. The applicant has not established a prima facie case. Again, the applicant contended that she stands to suffer irreparable loss as she operates a dispensary

in the suit property. In my view, the applicant has not provided actual evidence to prove the irreparable loss she will encounter once the application is not granted. In Tanzania Cotton Marketing Board v. Cogecat Cotton (1997) TLR 63 the Court stated: "The applicant had further more failed to indicate, beyond the vague and generalized assertion of substantial loss, that the loss would be irreparable. Any loss which the applicant was likely to suffer to could be adequately compensated for by an award ofdamages". Based on the above authority, I find that the applicant has failed to prove the irreparable loss she will incur once the: injunction is not granted. Turning to the last principle of balance of convenience, the applicant has stated that she stands to suffer more if the application is not granted than the respondent. The respondent being a Bonafide purchaser has the right to enjoy her rights over the suit property. The court cannot be used to cause injury or deny an innocent party. Court cannot be used by the 6 defaulting party to grant injunction restraining the innocent party from realizing its rights. In the upshot, the applicant has failed to discharge her duty of proving existence of prima facie case, irreparable loss and balance of convenience. I hereby dismiss the application with costs. D.B. NDUNGURU

JUDGE 27/12/2024 7