CRDB Bank Limited vs John Kagimbo Lwambagaza (Commercial Case No. 10 of 2000) [2000] TZHC 323 (4 August 2000)

p I ¼' IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM - COMMERCIAL CASE NO.10 OF 2000 CRDB BANK LIMITED .................. PLAINTIFF VERSUS JOHN KAGIMBO LWAMBAGAZA..DEFENDANT R U L I N G The plaintiff, CRDB Bank Limited, (the Bank) is a commercial bank incorporated under the Companies Ordinance, Cap. 212, and doing business in Tanzania. The defendant is one John Kagimbo Lwambagaza. At the request of the defendant, the bank, on or about the 27.7.98 agreed to grant to the defendant a term loan of Tshs 30,000,000/=. This loan facility was secured with a legal mortgage covering Plot Nos. 48, 49 and 50 Block "C" Kibangu, Ubungo area in Dar-Es-Salaam under Certificate of Title No.4738 1 in the name of the defendant. The loan facility attracted a rate of interest of 22% per annum as from 1.2.99. Apparently, the defendant defaulted in the repayment of the said loan facility and this prompted the bank to institute this suit under " Order XXXV: Summary Procedure" under the Civil Procedure Code, 196 (CPC). On the 6.4.2000, I directed that the defendant be served with a summons under Order XXXV Rule 2 (1) of the CPC and on the 14.4.2000 the defendant filed a Chamber Summons seeking leave to appear and defend the suit. The application by the defendant was argued on the 6.6.2000 by Mr. Swai, learned advocate, representing the defendant and Mr. Mwandambo, learned advocate representing the bank. On the 23.6.2000 I granted leave V to the defendant to appear and defend the suit unconditionally. It was ordered that the defendant should file the written statement of defence on or before the 27.6.2000 and that the suit be mentioned on the 4.7.2000, but it was instead mentioned on the 11.7.2000. Mr. Mwandambo entered appearance on this date holding brief as well for Mr. Swai and it was ordered that the hearing of the suit would be on the 18.7.2000. On this date once again Mr. Mwandambo was present but neither Mr. Swai nor the defendant John Kagimbo Lwambagaza was present. The court record however showed that Mr. Swai was served with notice of date of hearing on the 11.7.2000. In other words, the learned

2 advocate for the defendant was well aware that the suit had been fixed for hearing on the 18.7.2000. It is against this factual background that Mr. Mwandambo prayed for a hearing date in order to prove the itexptunder Order VIII Rule 14 (2)(b) of the CPC as amended by GN No.422 of 1994. The learned advocate submitted that the defendant had not filed the written statement of defence and there had been no application to extend the time for filing the same. I should at this juncture reproduce Order VIII Rule 14 (2) (b) and Order XXXV Rule 2 of the CPC. The latter provides as follows - "2 (1) Suits to which this Order applies shall be instituted by presenting a plaint in the usualform but endorsed "OrderV. Summa.'y Procedure" and the summons shall inform the defendant that unless he obtains leave from the court to defend the suit, a decision may be given against him and shall also inform him of the manner in which application may be made and for leave to defend. (2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defei,d the suit unless he obtains leave from the Judge or magistrate as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the alle2ations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled: (a) where the suit is a suit referred to in paragraph (a), (b) or (d) of Rule 1 or a suit for the recovery of money under a mortgage and no other relief in respect of such mortgage is claimed, to a decree for any sum not exceeding the sum mentioned in the summons, together with interest at the rate specWed ([any) and such sum for costs as may be prescribed, unless the plaintjff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way and such decree may be executed forthwith," (emphasis supplied).

• I 3 And Order VIII Rule 14 (2)(b) of the CPC provides as follows - "14(2) In any case in which a defendant who is required under sub-rule (2) of rule 1 to present his written statement of defence fails to do so within the period specWed in the summons or, where such period has been extended in accordance with the proviso to that sub-rule, within the period of such extension, the court may- (a)................ (b) in any other case,fix a day for exparte proof and may pronounce judgment in favour of the plaintjff upon such proof of his claim." In the present suit, the defendant was granted leave to appear defend the suit unconditionally. In addition, the defendant was ordered to file the written statement of defence on or before the 27.6.2000. The defendant failed to comply with this court order! Under the circumstances is Order VIII Rule 14 (2) (b) applicable? I have serious doubts. With all due respect to the learned advocate, it is my considered view that since the defendant defaulted in filing his written statement of defence on or before the 27.6.2000, then Order XXXV Rule 2 (2) came into play. Mr. Swai, learned advocate for the defendant was served with notice that the suit was scheduled for hearing on the 18.7.2000 but for reasons best known to himself, he opted to absent himself. Needless to say, the purpose of "Order XLXXV: Summary Procedure" is to enable a plaintiff to obtain judgement expeditiously where the defendant has in effect no substantial defence to the suit and to prevent such a defendant from employing delaying tactics and in the process, postpone the day of reckoning. I am of the settled view that order XXXV is self- contained in so far as it relates to suits stipulated thereunder. If a defendant defaults in filing the defence after obtaining leave to appear and defend the suit, as was the case herein, then in terms of Order XXXV Rule 2(2) - "... the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled..." (emphasis supplied). According to Black's Law Dictionary (61h edition) the word "deem" means - "to hold; consider; adjudge; believe; condemn; determine; treat as construe."

4 c, H . 4 This means that since the defendant defaulted in filing the defence, the bank's allegations in the plaint shall be adjudged to be admitted and the bank will be entitled to judgment. There will be no need for the bank to prove the suit according to the standard required by law. Under the circumstances, I do hereby enter judgment for the bank as prayed with costs. It is accordingly ordered. H.R. NSEKELA, JUDGE. 'ii.. 1 Ce1fy that this is a (nit- an ouec 44 ..." ConunerciatCourt ) Du as Salaam Da*o.