Mackanja J: A
The applicant has deponed in the affidavit which supports the application that he is a shareholder and a director of a limited liability company known as Union Metal Works Ltd. The aforesaid company secured from the respondent company a loan which together with interest, was amounting to Shs 57,701,602.00/= as at 15 June 1992. The B applicant mortgaged as security for that loan his real property known as `Plot No 8, Block `A' Service Trade Sinza in Dar Es Salaam' for which he holds a letter of offer No D/KN/A/22620/1 dated 1 July 1992. The applicant states in his affidavit that M/S Union Metal Works Ltd have failed to repay the loan and the respondent wants to exercise his C rights under the mortgage by selling the security for the loan.
The purpose of this application is to seek an injunction which will restrain the respondent, its agents and/or servants from carrying out the proposed sale. The D applicant swears in his affidavit that the sale, which amounts to foreclosing, offends the law of this country. Mr Lebba, advocating for the applicant, did not address the court on the legal issues his client claims are pertinent to this application. As well as that, the applicant's affidavit is quiet on any possible course of action once, if at all, the reliefs he E seeks are granted. The situation has been compounded by the apparent lack of interest on the part of the respondent who, although duly served, did not contest the application because it failed to appear. So there is only the evidence of the applicant upon which this application will be determined. F
There is evidence from the applicant's affidavit to the effect that the funds which were advanced to his company were provided by the Swedish International Development Authority (SIDA) to developing entrepreneurs in the country. Having secured the loan, and with the full knowledge of the respondent and the Swedish Co-ordinator of the fund G the applicant left for Europe in search of appropriate machinery. He swears that while in Frankfurt, Germany, the Swedish Co-ordinator lured him to sellers in Sweden.
According to the applicant, the Swedish Co-ordinator with the full knowledge of the respondent, advised him to procure the machinery from Sweden allegedly because it H would be easier to pay for it. It is alleged further that the respondent facilitated the purchase of the machinery from Sweden by opening a letter of credit No LCFB 233/88 for Swedish Kroner (SEK) 955,000 then equivalent to Tanzania Shs 16,114,446.00/= in I favour of FIDE, a Swedish firm. It is
the further contention of the applicant that the respondents were agents of Union Metal A Works in all the above financial transactions. That, although the sellers breached the conditions contained in the letter of credit, the respondent, with full knowledge of that breach, went ahead to pay the sellers.
Ultimately the machinery arrived and the entire consignment was found defective and B completely unfit. The applicant lodged a protest to the respondent in respect of the defective machinery. The applicant now claims that the loan has not been repaid due to the fact that the respondent failed to adhere to the conditions in the letter of credit and consequently paid for defective machines. Hence this application. C
I am satisfied, from the above evidence, that the applicant has given sufficient cause why the injunction should issue. In the result the application is allowed and the reliefs sought are granted. D
E