Misc Commercial Application No 19881 of 2024 Girls Guide Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 19881 OF 2024 THE REGISTERED TRUSTEES OF THE TANZANIA GIRL GUIDE ASSOCIATION…………………………APPLICANT VERSUS MOHAMMED BUILDERS LIMITED……………………………………RESPONDENT RULING Date of last order: 05/09/2024 Date of ruling: 27/09/2024 AGATHO, J.: Under a certificate of urgency, The Registered Trustees of the Tanzania Girl Guide Association, (TGGA), (the applicant) is moving this court by virtue of section 68(e), Order XXXVII Rule 2(1) and Section 95 of the Civil Procedure Code, Cap 33 R:2019 (the CPC), as well as Section 2(3) of the Judicature and Application of Laws Act Cap 533 RE 2019 (the JALA) for an interlocutory order restraining the Respondent from managing and/or dealing with Tower C of the building situated at Plot No 1088 Upanga Area, Kibasila Road, Ilala, Dar es Salaam, currently held under CT No 1 19330, previously held under CT No 1 86169/40 pending determination of the main suit. Also, for an order that the Respondent temporarily hand 1 over to the Applicant management of Tower C of the building situated on Plot No 1088 Upanga Area, Kibasila Road, Ilala Dar es Salaam, currently under CT No. Il 9330, previously held under CT No 186169/40 pending determination of Commercial Case No 18122 (the main suit) between the parties herein plus any other reliefs that this court may find to be justifiable to grant. The application is supported by an affidavit deponed by Wintapa Lulia, General Secretary hence a principal officer of the applicant. The Respondent filed a counter affidavit sworn by Nixon Tugara, her principal officer, in which the respondent is disputing the application in its totality. The background to the application is of essence. Under a joint venture, the applicant owns 26% of a landed property developed at Plot No 1088 Upanga area, Kibasila Road Ilala Municipality while Jafferji Developers Limited (JDL) owns the rest 74% of the building. The building comprises of three towers, namely tower A, B and C. The applicant owns tower C in lieu of her 26% share in the Joint Venture. It is this tower for which the two parties herein had entered into a Property Management Agreement. In the agreement attached and labelled TGGA 2 entered on 1st July, 2018, the respondent, Mohammedi Builders Limited 2 is required to manage the property for a period of one year, in accordance with certain terms and conditions stipulated therein. It is the applicant’s contention that the respondent is operating in breach of terms of the property management agreement by inter alia, refusing to hand over the property back to the owner and forcefully continues to manage the property despite expiry of the property management agreement. It is upon this basis that the applicant sought the court’s intervention by lodging the main suit which is now pending in this court. According to her affidavit in support of this application, under paragraph 19 (i-iv), the applicant states that as of now, she continues to suffer irreparable loss in the sense that she is unable to operate efficiently because of delayed remittance and unfounded deductions by the respondent, also its international membership in the World Association of Girl Guides and Girls Scout is at the verge of being suspended following failure to pay membership fees. She is also unable to pay salaries to her staff in time and unable to pay her suppliers due to economic hardship caused by the respondent’s acts. From her counter affidavit, the respondent throws all the blame back to the applicant stating that the purported mismanagement of the property 3 and economic hardship is mostly caused by the applicant’s own deeds and on balance it is the respondent who is more likely to suffer loss if the injuction is granted than the applicant in case it is not although in the applicant’s affidavit it is not stated as to who will suffer more loss if the orders sought will be denied/granted. The respondent deponed further that if the application will be granted the order will affect some innocent souls such as sub contractors, cleaners, security personnel, tenants and residents. Lastly it was her submission that the applicant’s affidavit does not show whether or not loss suffered cannot be atoned by money. When this application came up for orders on 27th August 2024, the applicant was represented by Godwin Nyaisa and Denis Machui learned advocates and advocate Yohana Ayall together with Nickson Tugara, principal officer of the respondent, appeared for the respondent. The court ordered that the application be disposed of by way of written submissions. In compliance to the order, and as the practice is, the applicant rolled the dice first by filing her submission in chief. The applicant prayed to adopt the contents of the affidavit in support of the application and the reply to 4 the Respondent's counter affidavit to form part of this submission. In her submissions, the applicant started by stating that it is trite law that temporary injunctions are equitable in nature and for that purpose there must be equitable grounds (material) for court's intervention by way of injunction. She acknowledged that the landmark case of Atilio vs. Mbowe (1969) HCD 284 did set tests/conditions for the grant of injunction the same being: -i. That, on the facts alleged, there must be a serious question to be tried by the court and a probability that the plaintiff will be entitled to the relief prayed for in the main suit, ii That the temporary injunction sought is necessary in order to prevent some irreparable injury befalling the Plaintiff while the main case is still pending, and iii That on the balance, greater hardship and mischief is likely to be suffered by the Applicant/Plaintiff if temporary injunction is withheld than may be suffered by the Respondent /Defendant if the order is granted. The learned advocates drew the attention of the court to some facts which the respondent allege are not disputed; one, that the Applicant owns 26% of the suit property as deponed by the Applicant in paragraph 3 of the affidavit and admitted by the Respondent in paragraph 3 of the counter affidavit; two, the Applicant entered into a Property Management 5 Agreement with the Respondent in respect of Tower C, for one-year period, subject to renewal, as deponed at paragraph 4 of the affidavit and admitted by the Respondent in paragraph 4 of the counter affidavit; three, the Property Management Agreement expired since 30th June 2019 and the Applicant's efforts to have it renewed was unsuccessful as deponed in paragraphs 9 and 10 of the affidavit and paragraphs 8 and 9 of the counter affidavit; four, the Respondent continues to forcefully manage the Applicant's property despite irreconcilable differences between the parties and in absence of renewal of contract, as deponed in paragraphs 11, 12, 16, 17 and 18 of the affidavit and paragraphs 10, 12, 13 and 15 of the counter affidavit. Five, following the failure to renew the contract the Applicant issued notice of termination of the contract and consistently demanded hand over of the property. The Respondent accepted the termination but imposed an onerous condition to handover the property as deponed at paragraph 10, 16 and 17 of the Applicant's affidavit and paragraph 9 of the counter affidavit. Whether that condition is justified or not is a question to be tried by the court. With regard to existence of a prima facie case/triable issue, it is the applicant’s submission that the facts gleaned from the affidavit are 6 serious questions to be tried by the court and there is a probability that the plaintiff will be entitled to the relief prayed for in the main suit. The learned counsel moved the court to be inspired with a decision in Misc. Civil Application No. 253 of 2016, Barreto Haulliers Mawanyika (T) Ltd versus Josephine E. Mwanyika and Another, (unreported). As for the irreparable loss, the applicant submitted that pursuant to paragraph 9 and 10 of the affidavits, the Property Management Agreement expired on 30th June 2019 and efforts to renew it proved futile. The Respondent continues to forcefully manage the property against Applicant's will and interests. The Respondent is taking various steps against Applicant's interests which leads to financial difficulties on the part of the Applicant. There has also been delay in remittance of rentals by the respondent. It is the applicant’s argument that the breaches complained above have definitely subjected the applicant to suffer irreparable loss in the manner stated under paragraph 19(i), (ii), (iii) of the affidavit. It is the applicant’s further averment that the Applicant and its members stand to suffer loss that cannot be adequately atoned by way of damages more than the Respondent who is a mere agent/property manager. To bolster this argument, the counsel cited the case of Southern Africa 7 Extension Unit (SAEU) vs Kibabi s/o Building Contractor Co. Ltd & Another, Misc. Land Application No. 4 of 2022 (unreported) Finally on this point, it was the applicant’s submission that the respondent was bound to vacate from the position of managing the property anyway since he was never meant to be a lifetime property manager of Tower C. It is the applicant’s firm view that the irreparable loss test tilts in favour of the Applicant than the Respondent. Submitting on the inconveniences that may be caused, the applicant stated that she stands to suffer greater hardship/ inconvenience from the withholding of the orders sought than the Respondent if injunction is granted because the Applicant is the owner of the suit property and has greater interest in it than the Respondent. The Respondent was merely a property manager whose contract has expired. The applicant confronted the Respondent’s allegation that applicant's affidavit does not show on the balance of probability who will suffer more. She submitted that paragraphs 19(i), (ii), (iii), (iv) 20 and 21 of her affidavit are clear on the hardship/inconvenience likely to be suffered by the Applicant. She cited this court's decision of Prestige Investment SA vs Lamar Commodity Trading DMCCC & 3 Others, Misc. Commercial Application No. 164 of 2023 (unreported) to this effect. 8 About the orders sought being conclusive in nature, the applicant refuted this contention insisting that the orders sought here are merely interlocutory. Conclusively it was the applicant’s submission that she has met all three requirements for the grant of injunction. The applicant therefore invited the court to grant the application pending determination of the main suit. In her reply, the respondent before addressing the court regarding the application, she entreated the Court to assess the legality of Applicant’s existence and propriety of this Application before it and whether the same has been brought properly by a right party before the court. She submitted that the Applicant in her reply to the Respondent’s Counter Affidavit under paragraph 8 stated that the Applicant is a non- governmental organization. The respondent went on submitting that as per section 18 of the Non-Governmental Organizations Act, 2002 as amended by Written Laws (Miscellaneous Amendment) (No.2) Act of 2005 Non-governmental organization is a legal entity capable of suing and be sued on its own name but the Applicant herein is suing through the board of trustees of an Association. It is the respondent’s submission that the Applicant has no capacity to sue and therefore this application lacks merits and stands to be struck out. 9 Without prejudice to the foregoing, the Respondents in opposing the Application prayed to adopt her Counter Affidavit in addition to this submission. The respondent reiterated the four conditions which must be satisfied cumulatively by the court for a grant of an order for temporary injunction as they have been stated in the case of Atilio vs Mbowe Supra). I find it nugatory to restate the conditions as they had been listed earlier while discussing the applicant’s submission. The respondent submitted that the primary basis for the grant of an injunction is demonstration of a serious question to be tried on the facts alleged which leads to the establishment of a prima facie case. In a circumstance where the Plaintiff has failed to establish the prima facie case, then injunction cannot be granted by the court. Going by the conditions jotted down in the case of Atilio vs Mbowe (supra), the respondent stated that reading the Applicant’s Affidavit in support of the Application and the submission made thereof, it is vivid that there is no prima facie case warranting grant of the Application for injunction as there are no facts stated by the Applicant to establish serious questions which may require parties to litigate. The respondent thereafter explained broadly on what I honestly believe is meddling with the main suit. The respondent quoted the case of Miriam Maro v Bank of Tanzania, Civil 10 Appeal No. 22/2017 (unreported) in which the Court of Appeal referred to its position taken in the case of Unilever Tanzania Ltd v Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009 (unreported) in which the Court of Appeal of Tanzania relied on the decision of the Supreme Court of Nigeria in Osun State Government v Daiami Nigeria Limited, Sc 277/2002. Another case referred to was that of Haji Nadi versus Shakoor & Fons Limited, [1984] T.L.R 122 The respondent invited the court to consider that the respondent is still remitting to the applicant monthly rent without failure including the last remittance for the month of July 2024 which was made before registration of this application hence the Applicants failure to pay membership fees and employee’s salaries cannot be counted on respondent’s side. Concerning an irreparable harm, the respondent stated that it is a kind of harm that cannot be adequately compensated by damages. It is her view that the Applicant has failed to show any such irreparable harm and if there is any harm as the Applicant claims, it can be fully remedied through damages if proven at trial. Among other cases, the respondent cited the case of Msimbazi Creek Housing Estates Ltd vs. Diamond Trust Bank Tanzania PLC Misc. Commercial Application No. 2 of 2024 at page 11 where the Court stated that it is a cardinal law under this condition 11 that the injury which the applicant shall suffer must be irreparable. That is, which cannot be atoned by award of damages”. On balance of inconveniences, the respondent submitted that the balance of inconvenience strongly favours the Respondent since if the temporary injunction is granted, the Respondent will suffer significant prejudice, while the Applicant would face no undue hardship if the injunction is denied. This is because the disputed property has a number of people which are working on the said facility under the respondent all are paid from the proceeds obtained from property commission. The respondent also is using part of agreed amount in servicing the loan obtained from Jaferji Developers Limited which is a sister company to the respondent. Regarding the argument that the orders sought are conclusive in nature the respondent submitted that handling over the suit property to the Applicant as requested is conclusive and pre empties the main suit. In conclusion, the respondent restated that the Applicant has neither demonstrated a prima facie case nor has shown that they would suffer irreparable harm. Furthermore, the balance of convenience and the interests of justice weigh in favour of the Respondent. The Respondent implored the court to dismiss the Application in its entirety with costs. 12 The applicant in her rejoinder condemned the manner by the respondent of raising a preliminary objection challenging Applicant's capacity to sue within her reply, on ground that the Applicant is suing through the board of trustees of an association instead of suing as a non-governmental organization. She submitted that it is improper for the Respondent to raise a preliminary objection in his reply submissions, without there being prior notice of preliminary objection. By doing this the Respondent is taking the Applicant by surprise, which practice cannot be condoned by the Court. She further stated that a requirement of a notice is meant to prevent surprise and ensure fair hearing. She referred the court to the case of Gabinius Singano vs St. Timoth Pre and Primary School, (Labour Revision 8 of 2019) 12020] TZHC 4221 (unreported -copy annexed) at page 5 this court observed: -"The law is silent on the manner which a preliminary objection should be raised, however, practice has shown that one should give notice of preliminary objection and the essence of the notice is to allow the other party prepare his defence. Other cases with this similar stance like the case of Commissioner General (TRA) vs Pan African Energy T. Ltd (Civil Application No. 206 of 2016) [2017] TZCA 157 (unreported) were cited. 13 Thereafter, the applicant reiterated her written submissions in chief extensively still in a bid to make a point that the Applicant has met all three requirements for the grant of injunction. The applicant therefore beseeched the court to grant the application pending determination of the main suit. I have prudently assessed the parties' written submissions and also gone through the chamber summons, affidavit in support of application, the counter affidavit as well as the laws applicable. I take note that there is not any formal notice of preliminary objection filed by any party in this case. The issue left for determination therefore is whether the application for a grant of temporary injunction has merits. It is vital to recollect that granting an order for temporary injunction is totally discretional upon the court. As it is for any discretional powers, in order for the same to be exercised, the applicant must furnish the court with sufficient reasons to persuade it to raise its discretional arm. There must be a foreseeable injury to be caused on the part of the applicant if the order is not granted. The main objective of this equitable remedy is to preserve the pre-dispute state until a further order is issued. 14 As correctly submitted by both parties, in cases of this nature, the importance of principles for granting of a temporary injunction laid down in the case of Atilio vs Mbowe (supra) cannot be overemphasized. Alike principles have been discussed by the Court of Appeal in the case of Abdi Ally Salehe vs Asac Care Unit Limited, Civil Revision No.3 of 2012 (unreported). In this case, the court had the following to state: - It is common ground in this case that the principles of granting a temporary injunction are now well settled; and they are that:- (i) the plaintiff must show a prima facie case with probability of success (ii) the applicant will suffer irreparable loss if injunction is not granted, such loss being incapable of being compensated by an award of damages; and if in doubt; (iii) the balance of convenience in favour of the party who will suffer the greater inconvenience in the event the injunction is or is not granted. (See GIELLA V CASSMAN BROWN AND CO. LIMITED (1973) EA 358). The objective of this equitable remedy is to preserve the pre dispute state until the trial or until a named day or further order. In deciding such applications, the court is to see only a prima facie case, which is one such 15 that it should appear on the record that there is a bona fide contest between the parties and serious questions to be tried. So, at this stage the court cannot prejudge the case of either party. It cannot record a finding on the main controversy involved in the suit; nor can genuineness of a document be gone into at this stage (See SARKAR ON CODE OF CIVIL PROCEDURE (10th ed. Vol. 2 pp 2009- 2015) As it can be observed from Abdi’s case quoted above in determining applications for temporary injunction, parties and the court must refrain from going to the merits of the main suit. I have made it a point to read the record of this case which among other things includes a plaint of the main suit which is pending in court. It is clear that the application contains similar paragraphs with questions that ought to have been determined in the main suit. However, knowing that the jurisdiction of the court as far as this application is concerned is only to see whether the conditions explained above are met, this court will confine itself to just that. The first question to be determined is whether there is a prima facie case/triable issues. From the submissions by parties and the record brought, there is no doubt that there is, pending in this court a suit between the parties herein, that is Commercial Case No 18122/2024. Without beating around the bush, with the presence of this case and 16 considering the cause of action as articulated in the plaint and the applicant’s affidavit , I hold that there are triable issues to be determined by the court hence the first condition for a grant of temporary injunction is met. The second criteria to be looked upon is whether the applicant will suffer irreparable loss if injunction is not granted, such loss being incapable of being compensated by an award of damages. The applicant in her submission in chief submitted that her financial ability to meet its daily operations leading to difficulties in meeting employees' salaries, payments to suppliers and applicant's international obligations is limited. Further the applicant annexed correspondences between the applicant and World Association of Girl Guides and Girls Scouts to the affidavit marked "TGGA- 11" showing that because of financial difficulties, the Applicant failed to pay membership fees as there has not been much coming in from the investment/property at issue. As a result, the Applicant has been stripped off its right to vote in this year's World Annual General Meeting which shall take place this month i.e. from 27th — September 2024. Unfortunately, this contention is not backed up by any proof. My interest was drawn to examining the contents of the mentioned annexure TGGA 11 only to find an email correspondence which acted as a warning to the applicant for 17 payment of membership fees. This plainly means that the applicant was set to mislead the court and exaggerate the situation. In any event, it is not proved that the only investment relied on by the applicant to fulfill her international obligations is the property in issue. Even if that would have been the case, there is no evidence that she has been stripped off her right to vote in this year's World Annual General Meeting which shall take place this month i.e. from 27th — September 2024 which would have constituted an irreparable loss. The respondent on his side is steady that the applicant’s failure to pay fees to the association have nothing to do with the economic hardship caused by the misunderstanding between them. I agree with the respondent in the sense that the applicant has not been able to advance any loss that will be irreparable in terms of monetary compensation. In my well-thought-out view, considering that the prospective losses sought to be avoided by a grant of temporary injunction in this case can all be atoned by monetary compensation, I find that this condition is not fulfilled. As rightly submitted by the respondent, the alleged outstanding payments owed (to the Respondent) by the Applicant if any, are monetary in nature and can be resolved through appropriate legal remedies such as 18 a claim for breach of contract and damages. Therefore, the threshold for irreparable harm has not been met. This is in line with this court’s case of Msimbazi Creek Housing Estates Ltd vs. Diamond Trust Bank Tanzania PLC, Misc. Commercial Application No. 2 of 2024 where the court stated it is a cardinal law under this condition that the injury which the applicant shall suffer must be irreparable. That is, which cannot be atoned by award of damages. The third condition is hinged on balance of convenience between parties. The applicant has submitted that since she is the owner of the property, then she is prone to suffer more loss than the respondent who is a mere property manager. The respondent avers that there are various personnel whose living is dependent on the building, in case an order for injunction is granted then they will be injured. Putting these arguments in a beam balance it is obvious that since the beginning of the Property Management Agreement, the building has been under the management of the respondent, that is in the year 2017. Managing of the property among other things involved recovering rent from tenants and so forth. The record shows that the respondent has been remitting monthly rent without failure including the last remittance for the month of July 2024 which was made before lodging of this application. Undoubtedly, the 19 applicant has not been able to establish that she is in a greater risk of inconvenience than the respondent if the application will not be granted as prayed. This is because on the current arrangement she still receives the remittance collected by the respondent, something she has not disputed. The applicant also moves the court to grant an order for the Respondent to temporarily hand over to the Applicant management of Tower C of the building situated on Plot No 1088 Upanga Area, Kibasila Road, Ilala Dar es Salaam, currently under CT No. Il 9330, previously held under CT No 186169/40 pending determination of Commercial Case No 18122 (the main suit) between the parties herein. This prayer in my view, steps into the shoes of the main suit as its granting will be pre emptying the determination of the main suit In the event I must conclude that under the circumstances pertaining to this case, the Applicant has failed to demonstrate sufficient cause to warrant this court to exercise its discretion in granting an order for temporary injunction as sought. Accordingly, the Application is hereby dismissed. Costs in the main cause. 20 Order accordingly. DATED at ARUSHA this 27th Day of September 2024. U. J. AGATHO JUDGE 27/09/2024 Court: Ruling delivered today, 27th September 2024, by Hon.Minde, Deputy Registrar in the presence of the parties. U. J. AGATHO JUDGE 27/09/2024 21