salome andrew komba ta salome commercial centre vs international commercial bank tanzania limited another 2023 tzhclandd 17181 24 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 735 OF 2023 (Arising from Land Case No. 373 of 2023) SALOME ANDREW KOMBA T/A SALOME COMMERCIAL CENTRE...........APPLICANT

VERSUS INTERNATIONAL COMMERCIAL BANK (TANZANIA) LIMITED.........1st RESPONDENT MUDU COMPANY LIMITED..............................................................2ND RESPONDENT

RULING 17/11/2023 & 24/11/2023 A. MSAFIRI, J. The applicant have brought this Application under Order XXXVII Rules 1(a) and 2, Section 68(e) and Section 95 all of the Civil Procedure Code, Cap 33 R.E 2019, (herein the CPC) praying for the order of this Court to restrain the respondents from the sale of the mortgaged property prior to the adhere with the loan facility terms and also an order to restrain the respondents from disposing of the mortgaged property prior to the issue of demarcation to be resolved. The Application has been taken at the instance of the applicant and is supported by the affidavit of Salome Andrew Komba. The Application was contested by the respondents through their joint counter affidavit deposed by ! Alt?’ Marie Mang'enya, a Principal Officer of the 1st respondent. The applicant aisc filed a reply to counter affidavit which was also deposed by Salome Andrew Komba. At the hearing which was oral, the applicant was represented by Mr. Simon, Josephat Machumu, learned advocate, while the respondents were represented by Mr. Thomas Rwebangira, learned advocate In submissions, Mr. Machumu submitted that the affidavit of Salome Andrew Komba shows clear that she is the lawful owner of the suit property with Title No. 55928 Plot No. 1030 situated at Mbezi Beach. That on 07th January 2019, the applicant in her personal capacity entered into loan facility with the

1st respondent for the purposes of constructing a commercial center at the suit piot * hat the duration for the loan was seven (7) years and as a security for loan, tne applicant mortgaged the suit plct/suit property. Mr. Machumu submitted further that while the construction was going on, the applicant faced a challenge of Covid 19 pandemic which caused the decline of many business hence, there was no tenants to lease the business building as it was expected to and planned by the applicant. That following the said challenge, in 8th January 2020 the applicant and the 1st respondent agreed to amalgamate the loan facility so as to enable the completion of the construction of the commercial center which was impacted by Cov'd 19 pandemic. That even after the completion of the construction of commercial center, the business did not go 2 AU- well as anticipated, something which have hindered the loan repayment Mr. Machumu stated that, despite the fact that the interest is appreciating and the duration for the loan is (7) seven years, the 1st respondent has engaged the 2nd respondent, an auctioneer who has started the process of disoosing of the suit property. He said further that there is a loan agreement which binds the parties, whereoy the terms of dispute resolution is to first settle the dispute amicably and on failure of that, the party to insititute the matter at the

High Court. The counsel for the applicant stated further that, it has recently came to the knowledge of tne applicant that there is a new sketch map of the area whereas the two properties of the applicant's neignoour on the suit property one Cnarles Owe has been found to be within the mortgaged property'. And that the applicant has requested the Commissioner for Land to resoive tnat issue for the thiid party to be protected. The counsel urged the Court to grant the Application so that the two parties can sit down and settle tne dispute as the applicant is ready to pay the loan. Replying, Mr Rwebangira prayed to adopt the contents of the counter affidavit to form pad of his submissions. He stated that the applicant has agreed to have defaulted loan repayment and that tne 1st respondent nas sent tne notice of reminder to the applicant That the applicant admitted to receive the notice and promised to repay TZS. 800 Million within 31 days out she failed to fullil the 3 ,Mk- promise. That, the applicant's last repayment was on 16/3/2022 where she paid Tshs. 200,000/= only. Mr. Rwebangira submitted further that injunction is an equitable relief hence the applicant should have shown the efforts she has done to make payments but instead, when she was served with default notice, the applicant filed a suit at the District Land and Housing Tribunal of Kinondoni and got an ex-parte

injunction which had the same prayers as the current Application but later she withdrew the said Application for reasons known to herself. On the issue of Covid 19 pandemic challenge, the counsel for the respondents stated that it was taken care of by the loan restructuring. That the applicant went to the Bank of Tanzania seeking for assistance and the loan payment was extended to 31/10/2023 however, the loan was not paid as promised until now. On the issue of interest of the neighbour in the suit property, Mr. Rwebangira stated that it is not shown whether Charles Owe has lodged a claim on his landed property. And that the applicant made a statutory declaration that there is no one having claim of interest in the suit property. He added that in the counter affidavit, the respondents have shown that if the injunction is granted, the process of recovery of loan will be stopped and will cause loss which might lead to Bank bankruptcy. That the Bank can compensate the applicant by way of damages. 4 To bolster his points he cited various cases including the case of General Tyre East Africa Ltd vs. HSBC Bank Pic., TLR [2006] 60 at page 61, and the case of SJ3 Iwawa's Company Ltd vs. Access Bank Tanzania Ltd, Misc. Civil Application No. 387 of 2019, HC (Unreported). He prayed for the dismissal of the Application with costs. In rejoinder, Mr. Machumu mostly reiterated his submissions

in chief. He added that the applicant has every intention of paying the loan and all she wants is to stop the process of sale while she is getting time to pay the loan. He submitted further that the encumbrances on the suit property is recent and that the applicant has no intention of evading the loan repayment but she is concerned about her neighbour whose property is located within the suit property. He concluded that the three conditions are there for the applicant to be warranted right to seek injunction to restrain the respondents. He reiterated his prayers. The Court's powers to grant temporary injunction is governed by the provisions of Order XXXVII Rules 1 and 2, and Section 68(e) of the CPC. These powers have been interpreted and elaborated so succinctly in a number of decisions including the famous case of Attilio vs Mbowe (1969) HCD 284. In the said case, conditions for granting the temporary injunction were set. These conditions are also reflected in many other cases after Attilio vs. Mbowe's case. The conditions are namely existence of serious question to be tried on the facts 5 alleged, demonstration that the applicant stands to suffer irreparable loss if injunction is not granted, the loss incapable of being monetary compensated and the balance of convenience in favour of the party who will suffer greater inconvenience if injunction is or is not

granted. Temporary injunctions are a discretionary remedy but which ought to be used judicially. Courts cannot grant them even when it is convenient to do so if the applicable conditions enumerated above has not been fully satisfied. Having carefully considered the rival submissions by the parties along with the contents of pleadings i.e. affidavit, counter affidavit and reply to the counter affidavit, the major issue for determination is whether the applicant has managed to fulfil or meet the three mandatory conditions cumulatively so that to warrant this Court to grant the interim injunction as prayed. In his submissions in Court, the counsel for the applicant did not address the Court on the said mandatory conditions and how they have been established therefore the Court has to look into facts as pleaded in the affidavit to see whether the conditions have been established. I say so because it is trite law that in Applications in which evidence has to be proved by affidavit like the one at hand, the applicant is required to state all the facts in the affidavit and not during the submission. Submissions are not evidence and cannot be a substitute of affidavit rather an elaboration or arguments on evidence and law. (See the case 6 ’ of Court of Appeal of The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government & 11 Others,

Civil Appeal No. 147 of 2006 (Unreported). On the first issue of establishment of a serious issue to be tried on the facts alleged, I have read the contents of the affidavit of the applicant and the applicant has stated at paragraph 8 that the respondents have ignored to adhere with the terms of the loan facility as agreed by the parties in that contract which is fundamental breach of the contract. However, the applicant have not attached the said loan agreement in the affidavit and have not stated the terms of the contract which are claimed to be breached by the respondents. In his submissions before the Court, the counsel for the applicant, Mi Machumu has stated that the duration of loan agreement is seven years (7) from 2019 so the time has not expired. However, in the same breath, the counsel submitted that the applicant is admitting the default of repayment and still intends to pay the loan and that, what she needs is to stop the process of sale so that she can get time to pay the loan. Here, the applicant admits the default and wants the Court to grant the injunction so that the two parties can sit down and settle the matter as she is ready to pay. What I see here is not a serious arguable issue but the need of time by the applicant to settle the loan while using this Court to get that time she needs. I should point out that the interim injunction is an equitable remedy

and not the instrument to be used by the defaulters to seek on gaining time while looking for ways to pay their debts. There should be a bona fide, serious contest between the parties and not mere allegations and causes for defaulting in payments. The applicant has averred that another reason for seeking interim injunction is the fact that it has recently been discovered that the land property of her neighbour Charles Owe is within the mortgaged land. Basing on that fact, the applicant stated that she wants to protect the interest of her neighbour who is a third party. However, it is my finding that first, the said Charles Owe cannot be termed as a third party to this dispute, second, even if he could be termed as third party, the said neighbour Charles Owe did not even depose an affidavit to support the applicant's claims. What we have is the applicant's letter to the Commissioner for Land. On their part, the respondents have demonstrated how the applicant has been reminded to repay the loan, how she has promised in writings on the payments and again defaulted. As I said, the applicant have failed to establish that there exist a serious arguable issue hence the first condition was not met. On the second condition, the applicant was to establish that she stands to suffer irreparable loss if the Court will not intervene. In the case of Abdi Ally Salehe vs. Asac Care Unit Limited

& 2 Others, Civil Revision No. 3 of 2012, CAT at DSM (Unreported), the Court of Appeal has this to say about the establishment of this second condition. It stated thus; Af I1 8 "Once the Court finds that there is a prima facie case, it should then go on to investigate whether the applicant stands to suffer irreparable loss, not capable of being atoned by way of damages. There the applicant is expected to show that, unless the court intervene by way of injunction, his position will in some way be changed for worse; that he will suffer damage as consequence of the plaintiff's action or omission..... "(emphasis mine). From the above position, it is mandatory that the applicant has to show that she is in danger of suffering irreparable injury if the injunction sought is not granted. Furthermore, it is not enough to state that one will suffer injury but must demonstrate how one will suffer the said irreparable injuries and they should be incapable of being atoned in monetary award. In the current Application, the affidavit is silent on this second condition. It is not shown whether the applicant stands to suffer the irreparable injuries and how she is going to suffer the said injury. Even in the submissions of the counsel for the applicant before the Court, as I have said earlier, the counsel's submissions has based on the issue of breach of loan agreement by the respondent and

the need of the two parties to settle the matter as per their agreement. He said that the court's intervention is necessary as the applicant's loss of her property by sale is an injury. However the counsel did not state how the applicant will suffer the irreparable loss if this Application will not be granted. I find that the applicant have failed to establish the second condition. 9 On the third condition on the balance of convenience, the applicant's affidavit is also silent. Even in the submissions by the counsel for the applicant, he did not submit on this condition at all. It was during rejoinder when he argued that they believe that the three conditions have been established for the applicant to be granted injunction. I find that the third condition was also not met. In the circumstances, it is my finding that the applicant has failed to meet the three conditions as per requirement hence the Court cannot exercise its discretion and grant the Application as sought. For the above reasons the Application is hereby dismissed with costs. 10