Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 10125 OF 2023 (Arising from Land Case No. 9685 of 2023) RICHARD KIMWAGA STIKA.................................. ................. 1st APPLICANT JAPHETH MATIKO.................................................................. 2nd APPLICANT VERSUS NCBA BANK TANZANIA....................................................... 1st RESPONDENT BENS AGROSTAR LTD......... ................... ................ ............. 2nd RESPONDENT NAMPULA AUCTION MART..................................................3RD RESPONDENT RULING. Date of last order: 26/06/2024 Date of ruling:30/07/2024 S.D. MWAIPOPO, J This is an application for temporary injunction filed in this court by the applicant under Order XXXVII Rule 1 (a), Section 68(c) and (e) of the Civil Procedure Code Cap 33 [R.E 2019]. The applicants herein decided to file this immediate application seeking for the court's intervention so as to restrain the 1st and 2nd respondents from disposing the suit properties comprised in Plot No.204 and 2016 Block B Mikocheni area 1 with CT no. 186307/85, Plot No.2305 Mbezi Beach area with CT No. 139573 Kinondoni Municipality pending the hearing of this application inter parties. The Application is supported by an Affidavit affirmed of RICHARD KIMWAGA SITKA, the 2nd applicant, and is opposed by a Counter Affidavit sworn by SIFUNI FADHILI MCHOME Manager of the 2nd Respondent. The Application was heard by the way of written submissions. The Applicants were represented by Mr. Saimoni Lymo Advocate, the 2nd Respondent was represented by Jovinson Kagirwa Advocate and the 1st and 3rd Respondents enjoyed the services of Samsoni Mbamba, learned Advocate. Arguing in support of the Application for temporary injunction, the Learned Counsel for the Applicants submitted that the Applicant herein has instituted Land Case No.9685 of 2024, seeking for the declaration that the action of the 1st and 3rd Respondents (defendants) to publish and advertise for sale the properties of the Applicants is unlawful, a declaration that any intended sale or auction of the Plaintiff's landed properties, if any, is illegal and unjustifiable for failure to observe the 2 mandatory procedures. He continued submitting that following the filing of the above mentioned case the Applicants decided to file this immediate application seeking for court's intervention so as to restrain the 1st and 2nd Respondents from disposing the suit properties comprised of Plot No.204 and 2016 Block B Mikocheni area with CT 186307/85, Plot No.2305 and Mbezi Beach area with CT No. 139573 Kinondoni Municipality, pending the hearing of this Application inter parties. The Applicants went on submitting that the basis of this Application fails within the legal principles for the court to grant an injunction, which are well elucidated in the famous case of A7ILIO v MBOWE (1969) HCD 284. These requirements are; a) The presence of the triable issue; That is there must be a prima facie case in the sense that there is a serious question to be tried on the facts and that there is a probability that the suit would ultimately be decreed in favour of the Applicant; b) Irreparable Loss/injury; That the award of damages to the Applicant at the conclusion of the suit would not provide an adequate remedy for any loss that the applicant may suffer. c) The balance of convenience; that the balance of convenience must 3 d) show that the Applicant stands to suffer greater hardship from the withholding of the injunction than will be suffered by the Respondent if it is granted. Starting with the first condition on triable issues; for the Applicants to be eligible for injunction, they have to demonstrate that they have prima fade case against the Respondent. What amount to a prima facie case has been explained in the case of ATI LIO V MBOWE (Supra) where it was stated that in order to establish the presence of prima facie case, the Applicants need to establish that there are serious question to be tried on the facts with a probability that the suit would ultimately be decreed in favour of the Applicants. It was submitted that in the Affidavit of the Applicant paragraph 28 & 29 the Applicants have shown that the case which has been filed at the High Court is due to unlawful, illegal arrangements between the 1st and 3rd Respondent, with intention to sell the mortgaged property by way of a bid while knowing that payment will be and have initially started to be effected in the 1st Respondent's accounts and so far as, to date a total amount of Tanzania Shillings four Hundred Million(TZS 400,000,000) have been effected into the 1st Respondent's account. 4 He further stated that the ill intents to sell the mortgaged properties to the Applicant's detriment while knowing that there is an arrangement which is unconditional to satisfy the whole claim, from the Government of Tanzania and which the 1st Respondent has confirmed and agreed to wait until June 2024, it shows that there is a triable issue which can only be determined upon hearing of the main case. He added that in determining the issue of triable issues, there is no need to dig deeper in the quest to prove such issues as that will be equivalent to do a hearing of the suit itself as it was held in the case of Asteria Augustine Mokwe v National Microfinance Bank Pic & Others, Misc. Civil Application No.148 of 2020, High Court of Tanzania at Mwanza at page 14 where it was observed that; "there is no need at this stage to go into detail of proving the triable issue since doing so as is tantamount to hearing of the suit itself, which is not the case here.... ", It should be noted that, in establishing triable issues in a prima facie case one has to establish that in the absence of some important answers to the issues raised by the Applicants, the Applicants are entitled to the relief sought as it was held in Chai Bora Limited v Alvic Builders (T) Limited & Another, Misc. Civil Application No. 133 l*P“' 5 of 2021 HCT at page 10; "It is my considered view that the Applicant has managed to solicit a prima facie case to the main suit for the court to determine the controversy at hand. From the same also, I find that the Applicants have at minimum managed to show at the very beginning of the pleadings that, in the absence of some important answers to some matters, the Applicant is entitled to the relief sought but upon consideration and analysis of-the evidence and determination of those matters to clear the controversy between the parties". On the condition of irreparable loss/injury he submitted that the Applicants are also required to demonstrate that in the event the orders sought in the chamber summons are granted, he will suffer irreparable loss. The definition of what amounts to irreparable loss has been provided in Chai Bora Limited v Alvic Builders (T) Limited & Another, Misc. Civil Application No. 133 of 2021 HCT at page 11 where it is observed that; "Irreparable injury is an injury which could not be adequately remedied by damages". He contended that the Applicants herein are the legitimate owners of the suit premises, in paragraph 30 of the Affidavit in support of the 6 Application by JAPHET MATIKO, the Applicants have demonstrated how they will suffer an irreparable loss. It is the Applicants' submission that in the event the court does not grant the orders sought in the chamber summons and the 1st and 3rd Respondent proceed to dispose the suit premises, the Applicants will suffer loss which cannot be compensated through damages as they have no any other means of abode with their families and they will be subjected to economic hardships if the 1st and 3rd respondents are not prevented by the intervention of this Honourable Court. The irreparable loss at this juncture is comprised of the loss of two residential houses and place of abode owned by the Applicants in which their families reside to date. Therefore, it is their submission that the Applicants are likely to suffer irreparable loss to the extent of losing their only residential houses where their families duly resides and call home. They further added that despite the fact that the Applicants' properties used to service security agreement for the 2nd Respondent herein but disposition of such properties will constitute irreparable loss as they will have no any other means of abode with their families and thereby rendering the Applicants to be subjected to economic hardship. See the 7 case of Sigori Investment & Another v Equity Bank Tanzania Limited & Another Misc. Land Application Number 56 of 2019, High Court of Tanzania (Dar es Salaam Registry) "From the facts which has been described in the Applicant's joint affidavit, it is my firm view that in the event where the injunction order is withheld, the Applicants herein as business institution whose properties in issue are tools for their business of which is expected to service their loan facility, will suffer irreparable loss". On balance of convenient, the Applicants are also required to show that they are likely to suffer more than the Respondents in the event the Respondents proceed with the disposition of the suit premises since the intended sale of the suit premises is likely to harm the Applicants more as the same cannot be recovered once sold while on the other hand the 1st and 3rd Respondents will not suffer enormous loss as the Applicants, for the reasons that if the main case is decided in their favour, the suit property will still be available for realization, as it was held in the case of Asteria Augustine Mokwe v National Microfinance Bank Pic & Others, Misc.Civil Application No.148 of 2020, HCT At Mwanza. (4'V 8 That the extent of suffering likely to be faced by the applicants is enormous compared to the 1st and 3rd Respondents if the houses and suit premises are not sold for the above stated reasons. The learned counsel ended up submitting that, the three conditions are in line with the Application for temporary injunction and the same have been met as enshrined in the above cited court decisions. It was their humble request that the prayers set forth in the Application are granted based on the set of facts as adduced in the supporting Affidavit, with costs. Submitting in rebuttal, the learned counsel for the 1st Respondent prayed to adopt the affidavit sworn by the 1st Respondent to form part of his submissions. He went on submitting that, the filed suit as mentioned by the Applicants is the onewhich gives life to this Application. The same has already been determined by Hon. Mango hence this court has no jurisdiction to entertain the same. That the Applicants did not dispute existence of the decision of this honourable court concerning the same suit premises and the same parties, therefore, the decision has never been overturned. He added that granting the order sought amounts to reopening of the proceedings in a matter which has already been determined, which will 9 amount to correcting the decision of Hon. Mango, a Judge with the same rank, thus this court is functus official. The Court of Appeal in the case of Maria Christom Lwekana v Placid Richard and another. Civil Application No. 549 of 2017 (unreported) held at page 17-18) that; "The fact that in the Ruling of Hon. Makani it was held that the parties were all beneficiaries of the estate of the late Richard Lwekama and they are all claiming ownership of the said property on account of the said distribution of the estate by the administrator one stephem lekamwa, demonstrates that the preliminary objection before her was a string of what was been determined by Makuru J as it relates to the probate case of the estate of Richard Lwekama. Therefore, with due respect, we are of the view that Makani, J having found that she should not have proceeded to hear and determine again an objection on whether the matter was res judicata understanding that another judge had dealt with a similar issue relating to the same subject matter. It is settled that a judge or Magistrate should refrain from setting aside the decision of a fellow Judge or magistrate". He further went on submitting that, the principles stated under the case of Atilio v Mbowe's case against the matter at issue, that all the 10 decisions of Asteria Agustine Mokawe & that of Chai Bora (supra) are distinguishable and irrelevant at the matter at issue for the reason that in this case there is already a decision of this court regarding the same parties and the same subject matter, which was concluded by the court of the same hierarchy. He also made reference to the contents of para 4 of the Counter Affidavit and admission made by the Plaintiffs under paral6,17,18 of the Plaint and the copies of the Consent judgment. That the Application does not fit under the said principles for granting temporary injunction. Submitting further on the conditions for the grant, the learned counsel argued that, there is no triable issue or serious question with a probability that the suit would be decreed in in favour of the Applicants for the reason that the suit has already been determined by this honourable court hence there is no chance of success or likehood of the suit to be decreed in favour of the Applicants, that the intended sale was in accordance with the settlement order (consent settlement order) of this court as per the Hon. Z Mango Judgement. It was his prayer that the present Application be dismissed with costs. 11 In his reply submissions, the 1st Respondent also raised a point of law which touches on the jurisdiction of this court that, this Court is functus official to determine the Application at hand, for the reason that the suit which is Land Case Number 9685 of 2024 as mentioned by the Applicants, is the one which gives life to this Application and the same has already been determined by Hon. Mango J, hence this court has no jurisdiction to entertain it. That the Applicants did not dispute the existence of the decision of this honourable court concerning the same suit premises and the same parties, the decision which has never been overturned. He added that granting the order sought would amount to reopening of the proceedings, in a matter which has already been determined, which will amount to correcting a decision of Hon. Mango a judge of the same rank. This court after going through the Affidavit of the Applicants as deposed under paragraphs 16,17,18,19 and 20, has observed that it is not in dispute that, there was a case between these parties herein which was decided by Hon Judge Mango through the Deed of Settlement then the Court entered Consent Judgment. I have gone further through the Affidavit of the Applicants under paragraph 21-29, and found that, the 12 Applicants contentions/claims are based on the breach of the Settlement Deed entered before this Court. Further that since the present application is on temporary injunction pending the hearing of the main case which is Land Case No 9685 of 2024, I can say that the point of law has been brought pre maturely in this Application, as it was supposed to be raised and determine in the main case so that both parties can have time to argue on the point. Having said so I will proceed to determine the Application for Temporary Injunction and the key issue that will be addressed is whether the application has merit. In doing so I will be guided by the principles or conditions well elucidated in the famous case of ATILIO v MBOWE (1969) HCD 284. These conditions are as follows; a) Presence of triable issue; That there is a prima facie case in the sense that there is a serious question to be tried on the facts with a probability that the suit would ultimately be decreed in favour of the Applicant. b) Irreparable Loss/injury; That the award of damages to the Applicant at the conclusion of the suit would not provide an adequate remedy for any loss that the Applicant may suffer. c) Balance of convenience; that the balance of convenience must 13 show that the Applicant stands to suffer greater hardship from the withholding of the injunction than will be suffered by the Respondent if it is granted. Starting with the first condition on the presence of a triable issue or a prima facie case. What amounts to a triable issue or presence of the primafacie case was discussed in the case of Colgate Palmolive vs zakaria provision store and others, civil case no i/1977 referred at page 158 in Kibo match group ltd Impex ltd ,2001, TLR 152, the court while discussing the concept of a prima facie case, the court stated that; "In principle the prima facie case rule does not require that the court should examine the material before it closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed, for to do so, would amount to prejudging the case on its merit. AH that the court has to be satisfied of is that on the face of it, the plaintiff has a case which needs consideration and that there is likelihood of the suit succeeding". Coming back to the case at hand, the learned counsel for the Applicants has submitted that, the Applicant's Affidavit under paragraphs 28 & 29, show that that the case filed at the High Court is due to unlawful and illegal arrangements between the 1st and the 3rd Respondents who 14 intends to sell the mortgaged property by way of a bid while knowing that payment will be and has already started to be effected in the 1st Respondent's accounts and so far a total amount of Tanzania Shillings four Hundred Million(TZS 400,000,000) has been effected into the 1st Respondent's account. I am alive to the fact that, the court at this stage is not required to go into the details of proving the triable issue at this stage, as doing so will amount to pre-empting the hearing of the suit itself. However, this court has found that there are bonafide contentions between the parties. Applicants have indeed established that there is a triable issue to be determined by the court on the claims for unlawful, illegal arrangements between the 1st and 3rd Respondent with intention to sell the mortgaged property and the status of payments to warrant this court to conclude that there are serious questions to be tried on the facts alleged and a probability that the Plaintiff will be entitled to the relief claimed. Furthermore, there also an issue on the competence of the main suit itself which needs to be resolved. I am aware that, at this stage it is only incumbent upon me to consider if there is a demonstrated bonafide claim in the intended suit. I am not expected, at this stage, to resolve complicated issues of facts and law as that would be prejudicial to the 15 pending suit. See the case of Abdi Salehe Vs. Asac Care Unit Ltd Civil Revision No. 3 of 2012, SC and Colgate Palmolive vs zakaria provision store and others; Coming to the 2nd condition, that is irreparable loss, which is to the effect that; the award of damages to the Applicant, at the conclusion of the suit would not provide an adequate remedy for any loss that the Applicant may suffer. The 2nd Applicant has deposed under paragraph 30 of the Affidavit in support of the Application that, in the event the court does not grant the orders sought in the chamber summon and the 1st and 3rd Respondents proceed to dispose the suit premises the Applicants will suffer loss which cannot be compensated through damages as they have no any other means of abode with their families and thus they will thereby be subjected to economic hardships if the 1st and 3rd Respondents are not prevented by the intervention of this Honourable Court. With regard, to this condition, this court has found that since the Applicants states that the suit houses are used as their premises and they live with their families, if the court grants the Application, then they may suffer irreparable loss if the same will be sold. r'J v 16 Regarding the 3rd aspect on the balance of convenience, the Applicants are also required to show that they are likely to suffer more than the Respondents in the event the Respondents proceed with the disposition of the suit premises. What amounts to balance of convenience was explained by the CAT in the case of Salehe vs Asac care unit Ltd, Ayoub Salehe Chamshama and Kenya Commercial Bank Civil Revision no. 3 of 2012 DSM CAT DSM Unreported pg 9, where it was stated that; "And on the question of balance of convenience, what it means is that before granting or refusing the injection, the court may have to decide whether the plaintiff will suffer greater injury if the injunction is refused than the defendant will suffer if it is granted". I have observed the submissions of the parties, and I am of the position that in totality there are contested issues between the parties on the competency of the main case, the status of payment of the loan etc which all need to be to be resolved by the trial court in the main case. Further, since the Applicants have argued that the intended sale of the suit premises is likely to harm them than the Respondents once the premises are sold and that the 1st and 3rd Respondents will not suffer enormous loss if the main case is decided in their favour, since the suit property will still be available for realization, then it is also my firm position that the balance of convenience tilts in favour of the Applicants. 17 Having said so, I therefore find that, all the conditions for granting temporary injunction have been met. The Application for temporary injunction is granted, the 1st and 3rd Respondents are restrained from disposing the suit properties comprised of Plot No.204 and 2016 Block B Mikocheni area with CT 186307/85, Plot No.2305 Mbezi Beach area with CT No. 139573 Kinondoni Municipality pending the hearing of the Land Case No. 9685 of 2024. I give no order for costs It is so ordered. Dated at Dar es: salaam this 30th day of July 2024 S.D MWAIPOPO JUDGE 30/07/2024 18