Lukonge Gambunala Mhandagani vs Azania Bank Limited & 2 Others (Misc. Land Application 519 of 2021) [2021] TZHCLandD 6830 (2 December 2021)

Key Facts

Transaction Type

Issues

• The first legal issue concerned whether the applicant demonstrated a serious question to be tried about the illegality of the public auction. The applicant alleged that the auction process violated legal requirements by lacking proper notice, advertisement, and valuation, while the respondents claimed compliance with procedures.
• The second issue evaluated if the applicant could prove irreparable harm would result from withholding the injunction. The court found the applicant failed to specify the nature of the loss or demonstrate it could not be remedied by monetary compensation, despite claims about potential title transfer to the 3rd respondent.
• The third issue examined if the hardship on the applicant from denying the injunction outweighed the respondents' potential hardship. The court concluded the applicant did not sufficiently establish this, noting the property was already sold and the applicant failed to detail specific consequences of withholding relief.

Holdings

• The court ruled that the applicant did not establish that the balance of convenience favored granting the injunction. The evidence did not sufficiently show that the applicant would suffer greater hardship than the respondents if the injunction was withheld, particularly since the mortgaged property had already been sold and the legality of the sale remained unproven at this stage.
• The application for a temporary injunction was ultimately dismissed because the applicant failed to cumulatively satisfy all three conditions (serious issue to be tried, irreparable loss, and balance of convenience). The court emphasized that the applicant could challenge the auction's legality in the main suit but could not justify the injunction based on the current pleadings.
• The court found that the applicant established a serious triable issue regarding the legality of the auction procedures conducted by the respondents, as there were allegations of non-compliance with statutory requirements such as lack of advertisement, failure to serve the 14-day notice, and absence of a valuation report. However, the court determined that the applicant failed to satisfy the other two conditions for a temporary injunction.
• The court concluded that the applicant did not demonstrate irreparable loss that could not be remedied by monetary damages. The applicant's claim of potential hardship due to the transfer of property to the 3rd respondent was deemed insufficiently supported, as the loan agreement's terms indicated the applicant was aware of default consequences.

Remedies

• The costs of the application are to follow the outcome of the main suit (Land Case No. 160 of 2021).
• The court dismissed the applicant's request for a temporary injunction. The costs of the application are to be determined based on the events in the main suit (Land Case No. 160 of 2021).

Legal Principles

Precedent Name

• Mirea Co. Ltd vs. Juma Shabani Lugendo
• Harold Sekiete Levira & another vs. African Banking Cooperation Tanzania Ltd (Banc ABC) and another
• Attilio vs. Mbowe
• Fulgence Pantaleo Kavishe t/a Double Way Auto Parts vs. Tanzania Postal Bank

Cited Statute

Judge Name

Passage Text

• In the present application, as per the pleadings, the applicant has not exhausted on how the applicant will suffer irreparable loss and how such a loss cannot be remedied by damages. On applicant's title of ownership being moved to the 3rd respondent, Mr. Madibi has not shown how this will affect the applicant irreparably.
• From the above reasons I find that the applicant has managed to establish only one condition that there is a triable case. This is because he claimed there is illegality in the conducts of public auction by which the suit property was sold. The applicant is at liberty to contest the legality of auction before the competent court of law. However, he failed to establish the other two conditions, as he did not reveal in his affidavit on the irreparable loss or injuries he will suffer if the injunction is not granted, and which cannot be compensated by damages.
• The three conditions which must be satisfied before such an injunction can be issued are as follows: 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 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, 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.

Damages / Relief Type