National Bureau de Change Limited vs Small Holder Tractor Co. (EA) Ltd and Others (Commercial Case No. 26 of 2000) [2000] TZHC 532 (23 August 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 I
2. BASIL SAP RAP ASEN I DEFENDANT 3:·-HUBERT B. SAPRAP ASEN I RULING NSEKELA, .J. The plaintiff, the National Bureau de Change Limited has instituted a suit against ' (I) Small I !older Tractor Co. (F./.) Limited: (2) Basil Saprapascn and (1) I luhcn B Saprapascn under Order XXXV: Summary Procedure. for the recovery of Shs 87,602,535/= advanced to the I st defendant by way of loan. The loan was secured hy 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 hy the t 1 " defendant. It reads in part as under - " 5. Thal it is not true Iha! we h(l'efuiled to repay. the loan facility al least in part. heca11sejiouls_li·om other so11rces hon.> he£'11 paid into the respect in' ucco11nts held 11·ith the plui11t{(Tw1w1111ti11g to uhnul Tshs 12. ()0(), (}{}{). ,_ 111i1111s some hunk chur.~es.
3. ]hut the dt.'!uy i11 the jit!I scttlem<'llf o/thc loun has heen cu used hy the 1mt!Xpi!Ctedfai/11re <.fthe supplil'l"s (fthe .rnl?jl.'ct mailer r?fthe loan i.e. six tractors and other agriculturul equipment. H'hich \l'L'l"l' all direct(' paid/iJr hy the /Jlainti((through SUI/IL' irrerncuhle trunslerahle feller <~{credit to the tune rf CSD 99.85-1. 00. ,'. That the plainti((sho11/d he hlamcc/JiJ1· the s1111plier ·s_/(1i/11rcs to /idly de/ii-er since they directly remi!lec/. the concemedjimds to the he111.>/1ciaries hy telegraphic !rems/er ll"ithout 11 oiling ti,r the second

' \ ) defendant's confirmation as to the requisite protection against the suppliers nor or unreasqnably late delivery of the said goods. 9. That the non-establishment of the letter 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 deknce has not been concisely set out as well as the tacts supporting the deknce. 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 picas arc proferrcd 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. without of course. unduly prolonging the date of trial. In the n:sult. I do hereby grant to the defendants. lca'C to appear and to dcti:nd the suit according to the following schedule. The defendants should file the written statements· of defence on or before the 13.9.2000: reply if any. by the plaintiff on or before 20.9.2000. rvkntion on the 22.9.2000. It is accordingly ordered. J