RACHEL HENRY KANYENYE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO. 156 OF 2022 RACHEL HENLY KANYENYE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS CRDB BANK PLC & ANOTHER .............................. RESPONDENT / DEFENDANT RULING BADE, J, RULING DATE OF LAST ORDER 17/03/23 DATE OF RULING 31/03/23 BADE,J. The above-named applicant filed an application by way of Chamber Summons supported by an affidavit applying for a temporary injunction order to restrain the Respondent their agents and/or workmen from evicting Her from the suit land located at Moshono, Moshono Ward, Arusha Municipality within Arusha Region pending the determination of Land Appeal No. 47 of 2022 now pending in this Court. The application is brought under the provisions of Order XXXVII Rule 1(a), (b) Section 68 (c) and section 95 of the Civil Procedure Code, Cap 33 R.E 2019. The application is supported by a sworn affidavit of the Applicant and the Counsel for the Applicant adopted the contents of the affidavit as part and parcel of his submission in support of the application, The matter is argued exparte by the Applicants only as the Respondent through a letter written to the Court, had decided to forgo their right to oppose it. This was after they entered appearance and had scheduled filing of the Counter affidavit. Instead of filing the same, a letter dated 15th December 2022 was received in the Court file that the Respondents do not intend to oppose the application. Strange as it sounds, this court proceeded to grant the prayer for the Applicant to file written submission which was duly abided to. Page. 1 To put context on the matter, there is filed a main suit i.e. Civil Case No. 64 of 2020 which is the result of Civil Appeal No. 47 of 2022 where the Applicant herein had sued the respondents claiming that the statutory notice dated 19th July, 2020 demanding the Applicant / Plaintiff to pay the whole amount of the loan and the broker's commission amounting to TZS 80,144,698.44 was illegal since the contract between the Applicant and the 1st Respondent had not yet expired. The said statutory notice was followed by 14 days’ notice (Annexure RHK3) issued by the 2nd respondent. The case intended to challenge the validity of the above referred notices while the loan agreement was still valid. It is alleged further that the case was not heard on merit because the Court raised the issue of jurisdiction suo motto and struck out the case. The applicant herein preferred an appeal against the struck-out order insisting that the court was wrong in raising the issue of jurisdiction suo motto and deliberating it without affording the parties the right to be heard. The High Court allowed the appeal and remitted the file back to the trial court so the parties can be given right to be heard. The court required the parties to address the issue of jurisdiction and hence reaffirmed its previous decision that the court was not vested with jurisdiction and hence struck out the case. The applicant preferred the current application because the court issued a ruling in the struck-out order, and there is no decree which would help the Applicant in filing the application for a stay of execution. The Applicant’s counsel explains that they neither have an application for execution filed to the court nor a decree capable of being executed by the respondents herein hence the requirement of a decree stipulated under Order XXI Rule 24 [1] is missing in the case. Meanwhile, the respondents are intent on disposing off the applicant’s property without filing execution hence the necessity of the current application in order to stop them from disposing off the referred property pending the determination of the Civil Appeal No. 47 of 2022. This Court issued an order to maintain the status quo on 12th December 2022 but on 16th December 2022 the respondent issued another notice and intended to dispose the applicant’s property on 17th December 2022, despite the existence of the order of maintenance of the status quo. We are aware that submission is not evidence but we would like the Court to take judicial notice of the letter filed in the court on 17th February 2023 in which the notice issued by the second respondent on 16th December 2022 is attached to see that the respondent are indeed interested and intending to auction the applicant property while we have an appeal before the court which is challenging the validity of the notices issued by the respondents. In supporting the Application, the counsel for the Applicant maintains that this honorable Court is vested with the jurisdiction and powers to grant an application of this nature. The power to grant temporary injunction order has been always at the discretion of the Court to be exercised judicially. The requirement of Order XXXVII Rule 1 is that, in order to be granted an application for temporary injunction one must prove the existence of suit by an affidavit or otherwise. In the case of TANZANIA MOTORS SERVICES LTD & ANOTHER V. MEHAR SINGH t/a THAKER SINGH, CIVIL Page. 2 APPEAL NO. 115 OF 2005 CA at page 8 defined suit as:- "The term "suit" is a very comprehensive one and is said to apply to any proceeding in a Court of Justice by which an individual pursues a remedy which the law affords him. The modes of proceedings may be various; but if the right is litigated between the parties in the Court of Justice the proceeding in (sic) is a suit." The Court went on at page 8-9 of the referred case stating that:- “It is evident that the word "suit" is a word of comprehensive import and we subscribe to the view that the appellant's petition falls within the ambit of the word "suit". We borrow the above wisdom to show the court that since the petition of appeal is a suit then the application for temporary injunction can be preferred in the existence of the petition of appeal. The counsel further urge that the application before this Court has satisfied the three settled conditions to be established before the Court can grant temporary injunction order as they were enumerated in the land mark case of ATILIO versus MBOWE (1969) HCD 284 wherein the following principles were set out: - "(i) It must to satisfied that there exists a prima facie case serious enough to be tried on the facts alleged and with a probability of decree be issued in favor of the Applicant. 1. The award of damages to the Plaintiff/Applicant will not provide an adequate remedy for the loss sustained as a result of the Defendant/Respondent's infringement. 2. The Plaintiff stands to suffer greater hardship from the withholding of the injunction than that suffered by Defendant if it is granted" Expounding on these principles, the Counsel argued that it is clear that there is a serious case to be tried by this Honorable Court. The case which was filed in the Resident Magistrates' Court which the Court decided not to hear on merit on the reason of lack of jurisdiction. The contention on this particular point is on the remedy - striking it out instead of transferring or returning it to the Court vested with jurisdiction. This matter is yet to be heard on merit and we contend that the Resident Magistrate Court is vested with Jurisdiction to entertain the suit. It is further contended that since the loan agreement was not expired then the notice issued was illegal and against the law, something which is a real dispute needing to be resolved by a court of law. Consequently he argues, as long as there is a dispute on the loan agreement, then the notices issued by the respondents (i.e. Annexure RHK2 and Annexure RHK3) are without a legal basis and unlawful. To buffer his position that the Court erred in striking out the case basing its decision that it lacked jurisdiction instead of returning it to the Court with competent jurisdiction was discussed in the case of QAMARA KWASLEMA GWAREH V. ANWARY HASSAN & 2 OTHERS, Civil Page. 3 Appeal No. 92 of 2015 at page 6 where the Court stated that:- "As regard the alternative ground of appeal, the learned counsel for the appellant contended that even assuming for the sake of it that the trial court had no jurisdiction; to the extent that the court did not decide the case on merits, it was wrong for the judge to proceed with the dismissal of the suit. Initially, Mr Materu urged that the trial court should have, instead, simply struck the suit but, after a brief dialogue with us, the learned counsel refined his stance and submitted that the trial court should have returned the plaint to be presented to the court in which the suit should have been instituted in terms of Order VII Rule 10 (1) of the Civil Procedure Code Chapter 33 of the revised Laws (the Code]." He further urged that Paragraphs 3 and 4 to the applicant’s affidavit in support of this application together with the annexture thereto i.e. annexture "RHK2" is clear that the property mortgaged by the applicant to secure the said loan agreement is in danger of being disposed off. Further, it is claimed at paragraph 5 to the applicant's affidavit that despite the fact that all the notice was issued while the loan agreement was still valid i.e was not expired, the applicant has never been afforded the right to be heard regarding the dispute arising from the said loan agreement, concluding that this point raises a serious case to be tried by this Honourable Court, thus the first principle is well established. Expounding the second principle as enumerated hereinabove, it is clear that the award of damages to the applicant will not provide an adequate remedy for the loss of the applicant's home i.e. Un surveyed landed property located at Moshono Ward, Arusha Municipality if the same is auctioned by the second respondent. This is because the 1st and 2nd Respondents have no right to sale the disputed farm. If this application is not granted and consequently the applicant is evicted then payment of damages will not give back to the applicant her wrongly sold the home. She will not get the same home if the Court decided the appeal in her favor. It is further argued that the respondents are about to evict the applicant from the suit land at any time from now. It is our contention that the damage to be suffered will be great and cannot be recovered by payment of damages. This is due to the fact that after taking possession the 2nd respondent will sell it to a third party, who will stand as a bonafide purchaser for value, making its recovery a cumbersome procedure or irrecoverable. Lastly, the counsel maintains that if this application will not be granted the applicant stands to suffer great hardship than the respondents. This is because the applicant depends on the disputed land as her home for herself and her family, and that the grant of this application will not prejudice the respondents in any way. The referred the Court to the case of T.A. KAARE versus GENERAL MANAGER MARA COOPERATIVE UNION (1987) T.L.R 17 where while considering the principles in grant of an order of injunction, the High Court held that: - "The power to grant such an application has always been discretionary to be exercised judicially by the application of certain well settled principles. The first such governing principle as indicated supra is that the Court should consider whether there is a bonafide contest in between the parties. Secondly it should consider on which side will be the balance of inconvenience if the injunction does not issue, bearing in mind the principle of retaining Page. 4 immovable property in status quo. Thirdly the Court should consider whether there is an occasion to protect either of the parties from the species of injury known as "irreparable" before his right can be established keeping it in mind that by "irreparable injury" it is not meant that there must be no physical possibility of repairing the injury but merely that the injury would be material i.e one that could not be adequately remedied by damages." The same position is also depicted in the case of KIBO MATCH GROUP LTD versus H.S. IMPEX LTD (2001) TLR 152. When granting an application for temporary injunction in this case the High Court held that: - “The Court is satisfied that unless immediate action is taken the applicant may suffer irreparable damage, whether quantifiable or not, and further the final decision would be nugatory as consequence of not granting the temporary injunction” The Applicant’s counsel concludes by urging that on the basis of the authorities cited herein above it is our humble prayer that this Honourable Court be pleased to grant temporary injunction order pending the hearing and determination of Application No. 24 of 2019 now pending in this honorable Court. He also prays for costs. Having read the submission by the Applicant, it is now opportune to determine if the Application has merit for an order of injunction to issue. The position regarding issuing of temporary injunction has been severally pronounced and is well discussed in the cases of Anna Investment Co. Ltd & 3 Others vs National Microfinance Bank Plc & 2 Others, Misc. Land Application No. 465 of 2021; and Winfrida Patrick Kibuta & Another V. Rhodice Simon Moshi, Misc. Land Case No. 01 of 2022. In fulfilling the condition that there has to be a prima facie case/serious question with a probability of success, the Applicant cannot escape from showing a) the relief sought in the main suit is one that which the court is capable of awarding and b) that the Applicant should at the very minimum show in the pleading that in the absence of any rebuttal evidence the applicant is entitled to the said relief. See Agency Cargo International vs Eurafrican Bank (T) Ltd, High Court, Dar Es Salaam, Civil Case No. 44 of 1998 (Unreported) when explaining what the Applicant is required to show, the court said: "It is not sufficient for the Applicant to file a suit with claims, the Applicant must go further and show that he has a fair question as to the existence of a legal right which he claims in the suit " So basically the Court is tasked with checking and measuring out from the applicant’s averments whether the court has referred to the conditions as propounded for the grant of the order; including the reliefs sought, whether the claims have raised a serious question for determination by the court (whose extent of proof of there being a serious question for determination is not conclusive evidence but rather the facts as disclosed by the filed pleadings) and at whose convenience is the balance; and then assess whether there is a justification for granting the order. See Surya-Kant D. Ramji vs Savings & Finance Ltd & 3 Others, High Court, Commercial Division Dar es Salaam, Civil Case No. 30 of 2002. Page. 5 Arguably, it can be contended that since the claim arises from contractual terms and the current situation is a direct result of those contractual terms, the Court has no business to interfere with the express contractual terms of the parties and restrain a party from executing it since the Respondent are clearly basing on the presence of a default entitling them to enforce the security. However, I am convinced that a prima facie case that is uncontested has been established by the Applicants, and thus I hold that there is a case made with serious issues to be determined. I am mindful that the purpose of granting a temporary injunction is to prevent irreparable injury or loss, befalling the Applicant while the case is still pending. The Counsel for the Applicant has demonstrated fairly the loss that the Applicant was going to face in case the order is not issued. One of which is the loss of her place of abode as well as a business since the landed property that serves as both, and she is expected to work in order to service the contested unexpired loan facility. From the facts which have been described in the Applicants' affidavit and the counsel submission, it is my view that in the event that the injunction order is withheld, the Applicant herein whose landed property is going to be attached shall suffer irreparable loss. Thus the second condition of temporary injunction has been similarly met. And lastly, as regards the third condition, on the balance of inconvenience, the Applicant's Counsel is of the view that on the comparison, and in the event where the prayer sought is denied, the Applicants will suffer more than the Respondents herein. In the case of Alice Awino Okello vs Trust Bank Ltd & Anor LLR NO. 625 (CCK) which was quoted in the case of Kisimani Holdings Ltd & Anor vs Fidelity Bank HCCC NUMBER 744 of 2012 [2013] EKLR, the Court of Appeal of Kenya stated that: Page "...the balance of convenience is in favour of the Applicant as the sale of one's property is a serious matter that deprives one of a right recognized in law and as such should not be allowed to proceed on doubtful circumstances” For those reasons, the Applicant prayed to the Court to grant him the injunction sought. Comparatively, when all has been said, I think that the Applicant is the one who is going to face more hardship if the temporary injunction is denied; unlikely for the Respondent. In the event, therefore, I find the third condition has likewise been met. So having weighed the facts in totality, I hold that this is a fit case for a temporary injunction since the Applicant has been able to meet all the conditions for granting a temporary injunction. Consequently, I hereby grant the order of temporary injunction as prayed. Page. 6 It is so ordered. DATED at ARUSHA on the 31st March 2023 Dated at ARUSHA this 17th of September 2024 . A. Z BADE JUDGE OF THE HIGH COURT Page. 7