stamili selemani kibiga vs tib development bank ltd others 2018 tzhclandd 386 8 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPL. NO.634 OF 2017

STAMILI SELEMANI KIBIGA APPLICANT

VERSUS TIB DEVELOPMENT BANK LIMITED .1st RESPONDENT AYUBU ALLY MKONDE................ 2nd RESPONDENT KAM COMMERCIAL SERVICES 3rd RESPONDENT SABEKI GENERAL TRADING COMPANY LIMITED...4th RESPONDENT Date of Last Order: 27f 0412018 Date of Ruling: 08/06/2018

RULING S.A.N. WAMBURA J: The applicant Stamili Selemani Kibiga filed this application under Order XXXVII Rule 1(a) 2(1) and Order XUII Rule 2 and Section 95 of the Civil Procedure Code Cap. 33 R.E 2002, praying for the following orders; (a) That this Honourable Court may be pleased to grant temporary injunction restraining the I st and 3rd respondents, their agents, and or workmen’s from auctioning, disposing, selling, alienating or evicting the Applicant or family members from the suit property at Plot No. 41 Block 20 Kibada area, Temeke Municipality Dar Es Salaam City under Certificate of Title No. 111884 pending the hearing of Land Case. (b) Costs of this application be in the main case. (c) Any other reliefs this Court may deem just to grant. The application was supported by her sworn affidavit. The applicant was represented by Mr. H. Kijazi Advocate whereas the 1st respondent TIB Development Bank Limited enjoyed the legal services of Mr. S. Mbiti learned counsel, 2nd respondent Ayubu Ally Mkonde was represented by Mr. R. Wilson and the 3rd respondent Kam Commercial Services was represented by Mr. Mbiti Advocate. Supporting the application, Mr. Kijazi contended that the applicant being the wife of the 2nd respondent did not issue her consent in respect of the mortgaged property on Plot No. 20 Kibada Area. He averred that the mortgage and sell of the disputed property by the

3rd respondent is null and void as there was no consent of the spouse. Mr. Kijazi stated that the applicant and her children are residing in the said house todate. Hence if she will be evicted from the house, they will have no place to live for being homeless and they will suffer an irreparable loss. He prayed to this court to adopt the applicant’s affidavit to be part of his submission. He therefore prayed for the application to be granted as prayed. In rebuttable, Mr. Mbiti challenged the applicant’s application on the ground that the applicant has failed to show anything serious to be determined by this court. He contended that the applicant’s husband swore an affidavit that he has no spouse. He contended that the 2nd respondent had secured a loan by mortgaging his house so it was his duty to repay the loan upon failure by the 4th respondent to repay the loan as a guarantor. Mr. Mbiti was of the view that if the bank is not allowed to exercise its rights under the law, the bank will suffer irreparable loss. To cement his argument, he referred to the case of NBC VS DSM EDUCATION AND OFFICE STATIONERY (1995) TLR 276. He therefore prayed for the dismissal of the application with costs. On the other hand Mr. Wilson submitted that he supports the grant of the application because there are issues which need to be determined in the main suit. That the issue as whether the affidavit

of the 2nd respondent is a legal one and whether the 1st respondent can exercise the property of the 2nd respondent to the 4th respondent. He was of the view that by granting the application the 1st respondent has nothing to lose as the house will still be there and they will be able to sell it if they win the case. He therefore prayed for the injunction to be granted pending the hearing of the main suit. In reply Mr. Kijazi stated that although the 1st respondent denied that the 2nd respondent has a wife, he still maintains that he has a wife which is the applicant. He therefore prayed for the application to be granted as prayed. The purpose of issuing an Order for an interim relief is to evolve a workable formula to the extent called for by the demands of the situation, keeping in mind the pros and cons of the matter and striking a delicate balance between two conflicting interests, such as injury and prejudice likely to be caused to the parties if the relief is granted or refused. Further to that an injunction may be granted to protect a party from an irreparable infringement of or on his rights as well as when it is just and convenient to do so. It is aimed at preventing irreparable injury which is substantial and cannot be adequately remedied or atoned for by damages. The court’s powers to grant temporary injunctions are governed by the provisions Section 68 (c) and Order

XXXVII, Rules 1 and 2 of the Civil Procedure Code Cap. 33 R.E 2002, which have been interpreted and elaborated so succinctly in a number of decisions including that of Georges, CJ. (As he then was) in the case of Atilio v Mbowe (1969) HCD 284. It is generally agreed that there are three conditions which must be satisfied before such an injunction can be issued; that is:- (i) There must be a serious question to be tried on the alleged facts and a probability that the plaintiff will be entitled to the relief prayed, (ii) That the court’s interference is necessary to protect the plaintiff from the kind of injury which may be irreparable before his legal right is established and, (Hi) That on the balance there will be greater hardship and mischief suffered by the plaintiff from withholding of the injunction than will be suffered by the defendant from the granting of it " According to the applicant’s affidavit and arguments if this court will not grant this application, the applicant will suffer an irreparable loss which would not be compensated by an award of damages and there will be greater hardship and mischief suffered by the applicant from withholding of the injunction than will be suffered by the 1st respondent by granting it. On the 1st principle of granting an injunction, this court finds that on the face of it the applicant/plaintiff has a case which needs consideration.

In the case of Colgate Palmolive Vs Zakaria Provision 6 Stores And Others Civil case No. 1 of 1997 (unreported), Mapigano J (as he then was) held that; “I direct myself that in principle the prima facie case rule does not require that the court should examine the material before it close it 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 merits, all 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." Further to that an injunction may be granted to protect a party from an irreparable infringement of or on his rights as well as when it is just and convenient to do so. It is aimed at preventing irreparable injury which is substantial and cannot be adequately remedied or atoned for by damages, as it was held in the case of Kibo Match Group Ltd Vs. H.S Impex Ltd (2001) T.L.R 153. On the last test, which is on balance of convenience, I am of the opinion that the balance of inconvenience tilts on the applicant’s favour because if the house is sold he will have no place of aboard while the respondents cans ell the same once the matter ends in their favour. Therefore having examined the present chamber application in depth and on the strength of the pleadings and submissions

by both advocates as well as on the strength of the authorities cited herein, I am satisfied that this application can succeed. I accordingly grant a temporary injunction in favour of the applicant Stamili Selemani Kibiga to restrain the 1st and 3rd respondents, their agents, and or workmen’s from auctioning, disposing, selling, alienating or evicting the Applicant or family members from the suit property at Plot No. 41 Block 20 Kibada area, Temeke Municipality Dar Es Salaam City under Certificate of Title No. 111884. The Order to last for a period of six (6) months only which is the statutory period of issuance of such Orders. Costs in due cause. S.A.N.^VAM^tJRA

JUDGE 08/06/2018 9