misc land app 13487 SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 13487 OF 2024 VERAELI ELIYA KOMBE........................................................ APPLICANT

VERSUS OSCAR JOSSEY MUNISI................................................ 1st RESPONDENT HAPPINESS JOHN LEOLE.............................................. 2nd RESPONDENT ARIBA COMMERCIAL BANK PLC.................................... 3rd RESPONDENT SUMA JKT AUCTION MART COMPANY LTD................... 4th RESPONDENT

RULING 18/9/2024 & 04/10/2024 MSAFIRI, J. This is the ruling on the Application brought under Section 68 (e), Order XXXVII Rule 1(a), Rule 2(1) and Section 95 all of the Civil Procedure Code, Cap 33 R.E 2019, (herein the CPC). The applicant is praying for the court to issue an interim injunction order restraining the respondents, their agents or servants from any attempt of sale or disposing in anyhow, the applicant's property in dispute in Land Case No 13263 of 2024 vide a house at Mwananyamala kwa Kopa with Residential License No. KND 011648 pending hearing and final disposal of the said main case. The Application has been taken at the instance of M.B. Kabunga & Company MU' 1 Advocates and is supported by an affidavit sworn by Veraeli Eliya Kombe, the applicant. The Application was contested by the respondents who filed their counter affidavits. The counter affidavit by the 1st respondent was deponed by Oscar Jossey Munisi, the 2nd respondent also filed her counter affidavit which was deponed by Happiness John Leole, while the 3rd respondent counter affidavit was deponed by one Charles Kazimoto, the Head of Credit Management of the 3rd respondent. The 4th respondent did not file counter affidavit nor entered appearance in court. The brief background according to the affidavit and counter affidavits is that the applicant claims to be the lawful owner of the suit property which

is described as Plot No.KND/MNY/KKP5/10 located at Mwananyamala kwa Kopa area, Kinondoni Municipality in Dar es Salaam City, with Residential License No. KND011648. The applicant said that in February 2018, he agreed to offer his personal house (the suit property) as collateral to cover a loan facility of TZS 36,000,000/= offered by the 3rd respondent to the 1st and 2nd respondents who are husband and wife. The applicant said that he believed that the 1st and 2nd respondents would repay the said loan as agreed but he later discovered that the said respondents has an ill intentions of defrauding his property by purposely refusing or neglecting to repay their loan. That he became aware for the first time in July 2019 that the 1st respondent have defaulted to repay the loan after receiving a demand notice from the lender. 2 Bank, the 3rd respondent. That he realized that the sale of the suit property by auction was to be conducted by the 4th respondent on 7th June 2024 under the instructions of the 3rd respondent hence he has instituted the main suit which is Land Case No. 13263 which is pending in this court. The hearing of the application was by way of written submissions and the applicant's submission in chief and rejoinder was drawn and filed by Mr. Andrew Kanonyele, learned advocate and the 3rd respondent's reply submission was drawn and filed by Mr David Wasonga, learned

advocate. The 1st,2nd and 4th respondents did not file written submissions as ordered by the court hence the application was determined basing on the submissions by the applicant and the 3rd respondent. I have gone through the submissions by all the parties through their counsels and I commend them for the well-presented submissions with authorities which I have well considered in determination of this Ruling but I have no intention of reproducing everything that was submitted. The counsels for the parties have all agreed on the mandatory conditions which have to be complied with by the applicant seeking for temporary injunction in order for the court to exercise its discretion and grant the sought order. They agree on the principle set in the case of Attilio vs Mbowe (1969) HCD 284 where the three conditions were set which govern the court in grant of injunction. It is trite law as agreed by the parties to the suit through their advocates that the Court's power to grant injunction is predicated upon the applicant meeting, cumulatively, all the three conditions set out in the celebrated case of Atilio vs Mbowe (supra). The three conditions as pointed out by the counsels are briefly that first, there must be a prima facie case/serious issue to be tried, second, that the court interference is necessary to prevent irreparable injury befalling the applicant and third, the applicant

have to establish that he will suffer more mischief than the respondent if the sought injunction will not be granted. My major task now is to determine whether this application is meritorious i.e. whether the applicant has met cumulatively all three mandatory conditions as pointed out herein above. On the first condition; in the affidavit supporting the application, the applicant has admitted to guarantee the loan which was issued to the 1st and 2nd respondents by securing his landed property. He has admitted that the 1st and 2nd respondents have defaulted to repay the loan. At paragraph 10, he said that he became aware of the default when he was served with the demand notice from the lender Bank sometimes in July 2019. At paragraph 11, the applicant said that he personally intervened and attempted to repay the loan so as to rescue his house but he failed due to financial constraints. He said further that the 1st respondent (the borrower) made only four repayment instalments. The deposit receipts were attached with the affidavit. 4 That after several attempts to sale the suit property, later on 30tn May 2024, he received a phone call from the 4th defendant that the 3rd respondent has again instructed the 4th respondent, to conduct sale by auction of the suit property and that the auction will take place on 7th June 2024. The applicant's main complaint is that the auction will

be conducted without proper notice of sale by auction. To cement this, in his submission Mr Kanonyele, counsel for the respondents reproduces the provisions of Section 134 (2) of the Land Act, Cap 113 whereby the mortgagee has a duty to ensure that the sale is publicly advertised. He also cited Section 12(2) and (3) of the Auctioneers Act, Cap 227 which demand the public notice to be issued before the mortgaged land is issued. In reply, the 3rd respondent in her counter affidavit has vehemently denied the applicant's claim and avers that all procedures for the conduct of auction has been strictly adhered to and that the notices were duly served. However, I find the situation to be a bit strange. This is for the reason that the applicant is complaining of the irregularity of an auction which has not yet taken place. In his submissions, Mr Kanonyele has told the court that the property which is "threatened to be sold" is the property of the applicant. The applicant does not contest the right of sale of the mortgagee in the case of the mortgagor's default. This right is provided under Section 132 of the Land Act. What the applicant through his counsel is contesting is the 3rd and 4th respondents' acts of threatening to dispose of the suit property by auction without following the proper procedures. Af c 5 In my view, the auction has not taken place as to ascertain whether

the procedures has been adhered or not. The applicant admits that he is a guarantor to the loan and he and the borrowers have defaulted on loan repayment. He does not contest the move of sale by the mortgagee but the procedure. It is my finding that since the auction has not been conducted, one cannot conclude that the procedures has been adhered to or not. In such circumstances as of now, I have failed to see a serious contesting issue between the parties. On the second condition; in the affidavit supporting the application at paragraph 16, the applicant simply states that the respondents particularly the 4th respondent under instructions of the 3rd respondents, still they are intending to proceed with the sale of the sale by auction of the suit property, and that if they are not restrained by this court, that act will cause hardship and irreparable loss as he has overwhelming chance of success in the main case which is pending in this court. In the affidavit it is not shown how the applicant will suffer the said irreparable loss. Even in the submission in court by Mr Kanonyele, he has not elaborated on how the applicant will face the said irreparable loss. The counsel simply submitted that the applicant is the one who is likely to suffer more than the respondents if the sought injunction will not be granted. That the applicant will irreparably suffer before his legal right is

established. In the case of Abdi Ally Salehe vs. Asac Care Unit Limited & 2 Others, Civil Revision No. 3 of 2012, (CAT-DSM), (Unreported) at page 8, it was held that: M - "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 for by way of damages. There the applicant is expected to show that, unless the court intervenes by way of injunction, his position will in some way be changed for the worse;.... The risk must be in respect of a future damage." (emphasis added). In the instant case, the applicant have failed to show how he will suffer irreparably. I believe that the fact that one has overwhelming chance of succeeding in the pending case is not enough to show sufferance which is not capable of being atoned by damages. If the applicant will succeed in his main case then, he stands to be atoned by damages. In this, I find that the applicant has also not succeed to meet the second condition. Since the applicant has failed to meet the two conditions in the application where the three conditions as stated above has to be met cumulatively, this court cannot exercise its discretion and grant the sought interim injunction. The Application is dismissed with costs. It is so ordered. /I i/! I— A.MSAFIRI

JUDGE 04/10/2024