Mareva Injuction Case 2

IN THE HIGH COURT OF TANZANIA
(DAR S SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM
MISC CIVIL APPLICATION NO. 585 OF 2021
LEOPARD NET LOGISTICS COMPANY LIMITED......... APPLICANT

VERSUS
TANZANIA COMMERCIAL BANK LIMITED...... 1st RESPONDENT
CHIEF EXECUTIVE,
TANZANIA FOREST SERVICE AGENCY............ 2nd RESPONDENT
AFRIMAX ENTERPRISES LIMITED.................. 3rd RESPONDENT
ATTORNEY GENERAL...................................... 4th RESPONDENT
RULING
Last Order: 14/12/2021
Ruling:28/12/2021
MASABO, J.:-
Leopard Net Logistics Company Limited has moved this court under a
certificate of urgency. The main prayer in her application is for a mareva
injunction restraining the sale of Plot No. 67 H2 FLUR Ill with CT. No.
186104/20 located at Temeke with Dar es Salaam which was mortgaged
to secure a loan from the 1st Respondent. The order is sought to restrain
the respondents jointly or severally, its directors, employees, servants,
agents and assignees from selling alienating or disposing in any way the
disputed premise and the developments therein.
The application is by way of chamber summons filed under section 2(3)

of the Judicature and Application of Laws Act [Cap 358 R.E 209] and is of
accompanied by an affidavit deponed by one Nabil Juma Iddi Rashid who
is identified as the Principal Officer of the Applicant from which the
i
following facts are discernible: The genesis of the matter is a contract for
harvest and collection of different species and forests produce at Rufiji
Hydropower Project. The contract is between the applicant and the 2nd
respondent and was executed on 20th December, 2018.Through this
contract, it is asserted, the 2nd respondent agreed to sell the applicant all
types of trees in blocks No.3 and 4 comprising of 6000 hectares with total
volume of 207,000 cubic meters.
Having executed the contract, the applicant approached the 1st

respondent for a loan to boost her working capital whereby she secured
a total of Tshs 1,100,000,000/=. She then proceeded to pay the necessary
charges and procured two trucks worth 59,000,000/=. When the harvest
started, she realized that she was shortchanged as there were huge
discrepancies on the measurement and volume of block 3 and 4. The
actual measurement of these blocks and their actual volume were far
below what was stipulated in the agreement executed by the parties.
Contrary to what was demonstrated in the agreement, there were no trees
but shrubs and bushes. As result, the harvest did not yield the contractual
quantity. Only 2000 cubic meters were harvested and transported. The
applicant’s operation was frustrated further when TANESCO burned her
from accessing the project area before the expiration of the contract
period.
The 1st respondent was notified of these misfortunes which prevented the
applicant from repaying the loan but still, on 22nd June 2021 she issued
the Applicant with the 30 days default notice demanding payment of
Tshs.1,331,957,588.56 in 60 days’ time failure of which would make the
2
disputed premise liable for sell and on 1st November 2021, she issued
another notice through the 3rd Respondent demanding payment of the
outstanding sum within 14 days. It is this notice which has disgruntled the
applicant who now intends to sue the respondent but, owing to the
requirement for a 90 days’ notice to sue the Government, he has filed this
application seeking intervention as she is worried of that the 1st
respondent will sale the disputed promise pending the expiry of the 90
days after issuance of the notice.
During the hearing of the application, Mr. Elly Msyangi, learned counsel
appeared for the Applicant whereas the respondents enjoyed the service
of Mr. Daniel Nyakiha, learned State Attorney.
Submitting in support of the application, Mr. Msyangi adopted the

applicant’s affidavit and proceeded to submit that, the application seeks
to restrain the respondents from selling the disputed plot. It has been
filed pending expiration of 90 days’ notice to sue the Government. The
notice which is a mandatory legal requirement has been issued and is due
for expiration on 9th February 2022. He submitted further that, the
application is within the jurisdiction of this court and cited the case of
Abdallah M. Malik & 545 Others v AG, Misc Land Appl. No. 119 of
2017, HC. Land Division (unreported) and Jitesh Ladwa v Yono
Auction Mart and Co. Ltd & Others, Misc. Civil Land Application No.
26 of 2020 HC. Dar es Salaam District Registry (unreported) where it was
held that, this court has jurisdiction to entertain and grant mareva
injunction. He prayed further that; the prayer be granted as the
respondents will never be prejudiced if mareva injunction is granted.
3
Mr. Nyakiha firmly resisted the application. He adopted the content of the
counter affidavit deponed by one Lilian Akwitunda and proceeded to argue
that, the application is devoid of merit as it is only aimed at evading the
obligation to repay back the loan. He cited the case of Mareva [1980]1
All ER 213 from which the mareva injunction emanates and argued that
in this case, the court cautiously considered the order of freezing an asset
subject to the anticipatory case noting that, the principle can only apply
in special and proper case. He proceeded to argue that, principles
applicable to other kinds of injunctions apply to Mareva injunction. Thus,
as propounded in Atilio v Mbowe (1969) HCD 284 and Christopher P.
Chale v Commercial Bank of Africa, Misc. Civil Application No. 635 of
2017 (HC, Dsr es Salaam Registry (unreported); three things must be
available for an injunction to issue. One, there must be a serious question
of law that would entitle the applicant to a relief. Two, the courts
interference is necessary to protect the applicant against an irreparable
injury. Three, balance of convenience in that it has to be demonstrated
that there will be greater hardship suffered by the applicant if the
application is withheld. These three conditions must all be met for an
injuction to be granted in an ordinary injunction and so in mareva
injunction.
Mr. Nyakiha argued further that, the facts deponed by the applicant in
paragraph 2 of the affidavit are devoid of merit as the agreement between
the applicant and the 2nd respondent expired on 20 February 2019 and
there is no any agreement whatsoever. Besides, the 1st respondent was
given extension of time to collect tools and forest produce which remained
on the site. The applicant defaulted payment of the loan for one year and
4
has never paid a single installment since being advanced the loan
although he has continued to do business and reap profit while 1st
respondent has continued to suffer loss. Thus, there is no serious triable
issue between the parties and, on the balance of the convenience it is the
1st respondent who stands to suffer more compared to the applicant. For
the 1st respondent to continue with business, the applicant and other
clients, must repay the loan due. The Applicant’s refusal to repay the loan
has substantially affected the respondent’s operation. The balance of
convenience, consequently, lies on the respondent’s favour. He added
that, all three conditions are in favour of the respondent. If the applicant’s
prayer is granted the 1st respondent will not regain the money. Finally, he
argued that, the cases cited by the applicant are irrelevant as they deal
with the issues of jurisdiction of the court to deal with injunction.
In the rejoinder, Mr Msyangi distinguished Christopher Chale’s case as

it was filed during the pendency of the case. He maintained that this
application has merit as there is a dispute to be tried and, if the property
is auctioned the applicant will suffer irreparable loss as the disputed
premise may be disposed of prior to the expiration of the 90 days.
I have carefully and dispassionately considered the content of the

application and the prayers thereto, the affidavit filed in support of the
application and the counter affidavit filed by the respondent and their
respective annextures. From these documents, it is common ground that
the interim injunction is sought before institution of the suit. The issue for
determination, therefore, is whether the application for interim injunction
can issue? An interim injunction order preceding the institution of a suit
5
or mareva injunction as it is commonly known, is a common law remedy
developed by the courts of England. It derives its name from the case of
Mareva Compania Naviera SA v International Bulkcarriers SA
[1980]1 All ER 213 where Lord Denning accorded a broader interpretation
to section 25 of the Judicature Act of 1873. Since then, the application
has been applied in many jurisdictions, albeit with certain modifications
and improvements. Applying this principle in Aetna Financial Services
v Feigelman (1985) 1 SCR 2, the Supreme Court of Canada stated that,
in granting mareva injunction, two conditions must be satisfied. One, the
applicant must demonstrate a strong primafacie case or a good and
arguable case and two, having regard all the circumstances of the case,
it appears that granting the injunction is just and justifiable.
In our jurisdiction, it is a settled principle of law that, this court has

jurisdiction to grant such injunction under section 2(3) of the Judicature
and Application of Laws Act which braces the application of common law
and equity in our jurisdiction. This position has been stated in plethora of
authorities, including Abdallah M. Malik & 545 Others v AG (supra);
Jitesh Ladwa v Yono Auction Mart and Co. Ltd & Others (supra);
Ugumba Igembe & Machanya Nemba Singu v The Trustees Of
The Tanzania National Parks & The Attorney General,
Miscellaneous Civil Application No. 1 of 2021, HC- Mbeya (unreported).
And, as argued by both parties, for such an injunction to issue, the court
must be satisfied that there is no pending suit because, as pointed out in
Daudi Mkwaya Mwita v Butiama Municipal Council & AG, Misc.
Land Application No 69 of 2020, HC Musoma (unreported), mareva
injunction cannot be applied or granted pending a suit. It is an application
6
pending obtaining a legal standing to institute a suit. It may be issued
where, the applicant cannot institute a law suit because of an existing
legal impediment. Since the instant application is applied pending the
expiry of the 90 days’ notice to sue the Government which impends the
institution of a suit by the applicant, there is no doubt that the application
falls within the realm of mareva injunction and can be issued if the
conditions for grant of injunction are demonstrated.
As correctly argued by the learned state Attorney, the criteria articulated

in Atilio v Mbowe (supra) as regards grant of injunction apply in the
instant application. Thus, the applicant must demonstrate a primafacie
case. He must show that there is a serious question to be tired on the
alleged facts and probability that the applicant will be entitled to the relief
prayed; he should demonstrate that, the court's interference is necessary
to protect the applicant from the kind of injury which may be irreparable
before his legal rights is established and lastly, the balance of
convenience. Thus, on balance there will be greater hardship or mischief
suffered by the plaintiff from withholding of the injunction than will be
suffered by the defendant from granting of it.
Regarding the triable issue, all what is required at this stage is for the
applicant to demonstrate that he has a case worth consideration and that
there is a likelihood of the suit to succeed See: Colgate Palmolive v.
Zakaria Provision Stores and Others; Civil Case No. 1 of 1997 HCT
(Mapigano, J) (unreported). Looking at the facts asserted in the
application, much as there could be a triable issue between the applicant
and the 2nd respondent, the applicant has miserably failed to demonstrate
7
a triable issue between her and the 1st respondent against whom the
interim injunction is sought. I say so because, the applicant does not
dispute to have obtained the loan from the first respondent and to have
mortgaged the suit property as security. He duly acknowledges his
indebtedness and total default of the credit facility extended to him on
22nd January 2019. With these facts at hand and in the absence of any
demonstration in the applicant’s affidavit that the 1st respondent was party
to the misrepresentation by the 2nd respondent or that repayment of the
credit facility was contingent to the contract between the applicant and
the 2nd respondent, I do not see how the enforcement of loan recovery
measures by the 1st respondent which is sought to be restrained would
constitute a triable issue with the possibility that the applicant will emerge
successful.
Regarding irreparable loss and balance of convenience, I entirely agree

with Mr. Nyakiha that the applicant has failed the test as the averments
that the applicant stands to suffer irreparable loss and that on the balance
there will be greater hardship and mischief suffered by her if the injunction
is withheld are merely casual and unsubstantiated hence incapable of
forming a basis for a judicial pronouncement. It need not be
overemphasized that, the requirement to demonstrate all the three criteria
is a mandatory requirement. Failure/omission to demonstrate any of them
is fatal and attracts dire consequences on the outcome of the application.
Underlining this point, this court (Rutangwa J (as he then was in Charles
D Msumari & 83 Others v The Director of Tanzania Habours
Authority, Civil Appeal No. 18 of 1997, HC (Tanga) (unreported),
emphatically stated thus:
8
“Courts cannot grant injunctions simply because they
think it is convenient to do so. Convenience is not our
business. Our business is doing justice to the parties.
They only exercise this discretion sparingly and only to
protect rights or prevent injury according to the above
stated principles, court should not be overwhelmed by
sentiments however lofty or mere highly driving
allegations of the applicants such as the denial of the
relief will be ruinous and or cause hardship to them and
their families without substantiating the same. They
have to show they have a right in the main suit which
ought to be protected or there is an injury (real or
threatened) which ought to be prevented by an interim
injunction and that if that was not done, they would
suffer irreparable injury and not one which can possibly
be repaired.” [emphasis added]
In the foregoing, I find the application devoid of merit and I hereby

dismiss it with costs.
DATED at DAR ES SALAAM this 28th December 2021.
28/12/2021
X
Signed by: J.L.MASABO
J.L. MASABO
JUDGE

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IN THE HIGH COURT OF TANZANIA

(DAR S SALAAM DISTRICT REGISTRY)

MISC CIVIL APPLICATION NO. 585 OF 2021

LEOPARD NET LOGISTICS COMPANY LIMITED......... APPLICANT

The application is by way of chamber summons filed under section 2(3)

Having executed the contract, the applicant approached the 1st

Submitting in support of the application, Mr. Msyangi adopted the

In the rejoinder, Mr Msyangi distinguished Christopher Chale’s case as

I have carefully and dispassionately considered the content of the

In our jurisdiction, it is a settled principle of law that, this court has

As correctly argued by the learned state Attorney, the criteria articulated

Regarding irreparable loss and balance of convenience, I entirely agree

In the foregoing, I find the application devoid of merit and I hereby

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