19960606 TZHC Dar es Salaam

- IN TIIE HIGH COURT OF TANZANIA -(. DAR ES SALAAM DISTRiaI' REGISTRY -AT DAI~ ES SALAAM CIVIL CA.SE NO. 123 OF 1996 WiU~ANCHI MARINE PRODUGrS (T) LTD. •••••••••o••oc•••• PLAINTIFF versus I OWNERS OF MOTOR VESSELS ••••••••e•••ooooeoooeo•o•••o DEFENDANT RULING ...... - This is an application for temporary injunction to restrain the respondents or their agents from withdrawing and/or interfering 1n any manner with the two ships which are the source of the c.ispute involved iri the main suit. What the applicants are alleging in the main suit is that respondents are in breach of a charter party whereby the applicants chartered the two vessels from the respondents. For this alleged breach applicants are,. claiming, in their plaint, liquidated sum of money as compensation for damages suffered. But pending the determination of the said suit t{:e applicants are asking the Gourt in this application to immobilised the said vessels. To support this application applicants have filed an affidavit of one Bakari Abdallah Kupa -wn:rr.~ is the Operations Manager of the Applicants Company. Among other things the deponent asserts that the temporary injunction is scught in order to enforce due payment of the compensation due and owing to the applicants by the respondents. In opposing the application respondents are denying that they are in breach of the charter party agreement as contended by the applicants. They contend that the agreement ceased to operate after its duration had expired. Alternatively tliey accuse-~ the applicants for non compliance of the terms of the charter party. Temporary injunction is only issued after the Court is satisfied of the existence of some conditions. First the applicant must show that there is serious triable issue, involved in the pending suit •.. S.econclly it must be apparent from the pleadings and other available documents that the court is likely to, award the applicants the i,Y>rl th;rrilv nr1 the balatice of / convinience the applicant is likely to suffer more if the prayed temporary injunction is refused than the respondent if it is granted. There is no doubt that in the present case there are serious triable issues involved. Basically each party is blaming the other for breaching the. terms of the charter party agreement. However, by whatever standard, it cannot be said that the main suit is likely to be adjudicated in favour of the applicants. For example one of the alleged breach of the terme of the charter party agreement is that applicants have failed to ensure the two vessels. In rebut of this allegation applicants produced as annexture to the affidavit in support of the application a note from corporate insurance addressed to whom it may concern certifying that the two ships are ensured,. Quite justifiably,. oo'P16el for the respondent criticised this note for ooing too weak to controvert the alleged breachi There is no explanation why applicants. decided to produce this note rather than copies of cover notes. Thus as the matter stands, applicants cannot be absolbed from any blame hence with probability of succeeding in his cla.:i.m. As indicated earlier, applicants are· claiming compensation for damages and not seeking specific performance of the contract. In case they 'win the .case, applicants _:will be ,adequately .:compensated by mon€y. ,. Thus 1whether the two vessels continue to. oparate or not· appl.icants will not be prejudiced as far is_ the reliefJ they are praying for a.re concerned. On the other hand reGpo!!-dents are bC>und to suffe;r_, more if the vessels. are immobilised. In fact it is for the interest of the• applicants that the . .... t. . vessels are allowed to operate. so t~at re~pon4ents can generate income and pay the applicants in case judgment is entered againpt them. Based on ·these. observations it. is '.held.that the application is not sustainable hence dis~ssed with costs •. ·, . . . _'(_ :_; \," 1,, •.- u~· A;- MSUMI .JUDGE 6/6/96 For the .A.pplicru+t s: Mr. El-Maamry For the Respondentst Absent I El-M,aamry: Ws:-;;ray for mention date. Order; Mention on 19/6/96 before the District RBgistrar.