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

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

The applicant satisfied the three conditions for a temporary injunction: there is a serious question to be tried regarding spousal consent and the validity of the mortgage, the applicant would suffer irreparable loss if evicted, and the balance of convenience favors the applicant as the respondents can still sell the property if they succeed in the main suit.

Citation
stamili selemani kibiga vs tib development bank ltd others 2018 tzhclandd 386 8 june 2018
Parties
Applicant: Stamili Selemani Kibiga; 1st Respondent: TIB Development Bank Limited; 2nd Respondent: Ayubu Ally Mkonde; 3rd Respondent: Kam Commercial Services; 4th Respondent: Sabeki General Trading Company Limited
Court
TANZLII
Jurisdiction
Tanzania
Judgment Date
8 June 2018
Procedural Posture
Miscellaneous Land Application / Ruling on Application for Temporary Injunction
Outcome
Temporary injunction granted for six months
Legal Topics
Temporary Injunction, Mortgage Without Spousal Consent, Irreparable Injury, Balance of Convenience
Source Language
English
Land Law Civil Procedure Temporary Injunction Mortgage Without Spousal Consent Irreparable Injury Balance of Convenience

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Parties

Stamili Selemani Kibiga

Applicant

TIB Development Bank Limited

1st Respondent

Ayubu Ally Mkonde

2nd Respondent

Kam Commercial Services

3rd Respondent

Sabeki General Trading Company Limited

4th Respondent

Procedural Posture

Miscellaneous Land Application / Ruling on Application for Temporary Injunction

Legal Issues

  1. 1 Whether a temporary injunction should be granted to restrain auction/sale/eviction from mortgaged property pending the main suit
  2. 2 Whether lack of spousal consent renders the mortgage and sale null and void

Ratio Decidendi

The applicant satisfied the three conditions for a temporary injunction: there is a serious question to be tried regarding spousal consent and the validity of the mortgage, the applicant would suffer irreparable loss if evicted, and the balance of convenience favors the applicant as the respondents can still sell the property if they succeed in the main suit.

Court Disposition

Temporary injunction granted for six months

Orders

  • 1st and 3rd respondents, their agents, and workmen are restrained from auctioning, disposing, selling, alienating or evicting the applicant or family members from Plot No. 41 Block 20 Kibada area, Temeke Municipality Dar Es Salaam City under Certificate of Title No. 111884 for six months.
  • Costs in due cause.