Tanzania Portland Cement Co. Ltd vs Universal Electronics & Hardware (T) Ltd (Commercial Case No. 28 OF 2000) [2000] TZHC 325 (9 August 2000)

'1 IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMM. CASE NO.28 OF 2000 V —TANZANIA PORTLAND CEMENT CO. Ltd....................................PLAINTIFF/RESPONDENT Versus UNIVERSAL ELECTRONICS & HARDWARE (T) Ltd................................DEFENDANT/APPLICANT Counsel: Dr. Tenga......for the Plaintiff R U L I N G V BWANA, J. The plaintiff instituted the main suit pursuant to Order XXXV, Summary Procedure, wherein the following prayers are sought:- Recovery of Tshs.3 7,679,492/- Interest on (1) above at the rate of26% p. a. from the date due until V judgment. Interest on (1) and (2) above at the court 's rate; Costs of this suit. The suit emanates from commercial transactions between the parties that lasted from 201h December 1997 to 10th September 1998. It concerned purchase of cement by the Defendant/Applicant from the Plaintiff/Respondent. It is alleged by the plaintiff that as part payment, the 1

Defendant/Applicant presented cheques which were subsequently dishonoured. The plaintiff alleges further that subsequent oral and written demands for settlement of the debt have all proved futile. When this matter came up for mention on 27 July, 2000, one E. Muro, representing the Defendant company appeared and requested for time to file his application for leave to defend the suit pursuant to Order XXXV r.2 (2) and r.3(1) of the CPC.

• He did so wherein he shows that there existed some arrangements between him and the plaintiff. Through those arrangements, it is claimed the plaintiff agreed to compensate the defendant for the losses suffered, an indication that the plaintiff admitted liability. It cannot therefore, be said that the defendant is liable. The defendant also disputes several other matters claimed by the plaintiff which include the drop in the quality of cement produced by the plaintiff. In his reply however, the plaintiff avers that the issue at hand is on bounced cheques which the defendant admits. The plaintiff further denies the drop in the quality of its cement. The plaintiff states further that leave to appear and defend a suit filed under summary procedure, is not an automatic right of every body intending to delay the final determination of the suit. In applications of this nature, the court is usually mindful of the following five principles:- I ' 2

The plaintiff is entitled to a judgment should the defendant's affidavit either raise no triable issue (s), simply it is a sham, illusory or practically moonshine - all intending to deny the plaintiff from obtaining his relief expeditiously. The court grants the said leave but upon fulfilment of certain conditions which include but not limited to payment into court or giving security. Where, however, the court is satisfied that - There are merits and triable issues then it can grant unconditional

• leave to defend. Unconditional leave to defend will be granted, also in situations where the defendant's affidavit indicates that he has a fair or bonafide, reasonable defence although not a positively good one. Finally even where the defendant's affidavit does not positively and immediately make it clear that he has a defence, but it discloses such facts as may be deemed sufficient to entitle him to defend, such a defendant is entitled for leave to defend the suit. I have examined both parties' averments in this application. As stated earlier, while the plaintiff states and rightly so, that this whole case emanates from the none payment for cement received, it is the defendant's averment that he failed to pay for the cement after the drop in its quality and (following some discussions between the parties) after the plaintiff had agreed to compensate the defendant following a loss suffered as a result of the said drop in the quality of cement. The plaintiff denies any such drop in the quality of its cement. 3

I t II' r I' It would seem, therefore, that the parties are at variance with each other over these issues. Proof thereof should be obtained from evidence adduced by the parties at an appropriate stage of these proceedings. As of now, my role is simply (as stated by the late Justice Mwakasendo in Sasson v Pate - 1972 - HCD 148) to decide upon the affidavits - whether there is disclosed any issue fit to go for trial. I am equally mindful of the purpose of proceedings instituted under Order XXXV as was eloquently stated in Stahlunion Export GMBH vs Kibo Wire Industries Ltd (1973) LRT 54) The purpose is: "to enable a plaintiff to obtain a quick and summary judgment on a claim for a liquidated sum where on the face of it the defendant has clearly no good defence without being unnecessarily kept from what is due to him by the delaying tactics of the defendant." The foregoing notwithstanding, I am of the considered view that there are triable issues - as shown above - entitling the defendant to leave to defend, with no conditions attached. I rule accordingly. I. Sgd;4ana JUDE / 9/8/2000