National Bureau de Change Limited vs Small Holder Tractor Co. (EA) Ltd and Others (Commercial Case No. 26 of 2000) [2000] TZHC 537 (22 September 2000)

.. ! IN THE HIGH COURT OFT ANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 26 OF 2000 THE NATIONAL BUREAU DE CHANGE LIMITED----------------------- PLAINTIFF VERSUS

1. SMALL HOLDER TRACTOR CO. (EA) LTD )
2. BASIL SAPRAPASEN ] DEFENDANT
3. HUBERT B. SAPRAP ASEN ] RULING NSEKELA, J. The plaintiff, the National Bureau de Change Limited has instituted a suit against (I) Small Holder Tractor Co. (E.A.) Limited; (2) Basil Saprapascn and (3) Hubert B Saprapasen under Order XXXV: Summary Procedure, for the recovery of Shs 87,602,535/= advanced to the 1 st defendant by way of loan. The loan was secured by a guarantee of the 2 nd defendant, Basil Saprapasen and a legal mortgage over CT No.22090 Plot No.91 Block B Sinza, Dar-es-Salaam. In order to defend the suit, the 2 nd defendant took out a Chamber Summons under Order XXXV rule 3 of the CPC seeking leave to appear and defend the suit. In support of the application, there is an affidavit sworn by · the 2 nd defendant. It reads in part as under - ·· 5. That it is not true that H·e have.failed to repay. the loan.facility m least in part, heca11se ji1nds ji·om other sources have been paid into the respecti,·e acco1111ts held 11·i1h the plai11tUTamo11nti11g to ahout T~11s 12. 000. (){)()/= minus some hank charges.
4. That the de/av in the /iii! seulement o(the loan has been caused . . . by the 1mexpectedfc1i/11re of the suppliers ol the .rnhject matter of the loan i.e. six tractors and other agric11/t11ro! equipment. which were all directly paid }<Jr by the plaint(flthrough some irremcahle tran.~lerable letter of credit to the tune <~l USD 99. 85-1. 00.
5. T-iwt the p!ainri[f should he hlamcdjhr the supplier ·s failures lo · fidfr dt!li,·er since the,· direcrh- remirrcd rhe concerned fimds to the . . . . . . henejiciaries hy telegraphic tramfer H·itho11r waitingfor the second

defendant 's confirmation as to the requisite protection against the suppliers nor or unreasonably late delivery of the said goods. 9. That the non-establishment of the leller of credit made the suppliers ship part of the goods four months after payment and has thereby increased the financial loss costs on the part of the defendants in terms of accumulated interest. " At the hearing of the application, which was exparte, Dr. Wambali, learned advocate for the defendants, did to a certain extent amplify on the contents of the affidavit in support. He submitted that so far only two tractors had been delivered but there is a commitment on the part of the consignor to supply and deliver the remaining tractors and that the plaintiff was partly to blame for effecting payment without consulting with the defendants that there was sufficient cover. What is important at this stage is to find out from the affidavit evidence available that there are issues that ought to be investigated at a full-blown triaL I must confess however that the nature of the defence has not been concisely set out as well as the facts supporting the defence. There would, on the face of it, appear a possibility of disputed facts but I cannot, at this juncture, say that the defendants' defence is a sham in which pleas are proferred merely for the purpose of delay. Disputes on facts cannot be decided during summary procedure proceedings. It is however one of those cases in which I would be inclined to give conditional leave to appear and defend. I am conscious of the fact that the purpose of summary procedure under Order XXXV is the expeditious disposal of the matter enumerated therein where there is virtually no defence to the suit but at the same time care must be taken that where there is even a possibility of a faint defence. leave to appear and defend should normally be given, depending on the circumstances of each case. ,Yithout of course. unduly prolonging the date of trial. In the result. 1 do hereby grant to the defendants. leave to appear and to defend the suit according to the following schcduk. The defendants should file the ,vritten statements· of defence on or before the 13.9.2000: reply if any. by the plaintiff on or before 20.9.2000. Mention on the 22.9.2000. It is accordingly ordered. H.R. Nsekela, ..JliDGE. ")