CRDB Bank Ltd vs F. M. General Merchandise Co. Ltd and Others (Commercial Case No. 23 OF 2000) [2000] TZHC 317 (18 July 2000)

C IN THE HIGH COURT OF TANZANIA (Comtncrcial Division) AT [);\RES SALAAM COMM. (ASE NO.23 OF 2000 CRDB BANK LTD.......................PLAINTIFF/RESPONDENT Versus F. M. GENERAL MERCHANDl;E Co. Ltd.. ..1st DEFENDANT) FARID MBARAKA SAID............2 ild DEFENDANT) MOHAMED SAID.....................3 rd DEFENDANT) APPLICANTS SAID MBARAKA ............... ...... 4111 DEFENDANT) Counsel: Mr. D. Kashumbugu......for the Applicants Mr. D. Lyirno ............. .for the Respondent R U L I N G B'ANA, J. The main suit was instituiei under the Summary Procedure, Order XXXV of the Civil Procedure Code (CPC). The plaintiff therein prays for judgment against the defendants for payment of both a principal sum and interest thereon arising from the defendants' failure to pay a Idan advanced to them by the former. Invoking the provisions ol Ru1e 3(1) of the said Order XXXV, the defendants jointly filed this appd 2ation requesting this court to grant them leave to defend the suit. The role of this court at this juncture therefore and

as stated by the late Mwakasenc!. Ag. J. (in David Sasson & Co. vs Navichandra Pate and others (1972 HCD 148) is..... "simply to decide upon the affidavits., whether there is disclosed any issue lit to go for trial and no more.. Are there (or is there any) triable issues raised by the Applicants in their joint affidavit? Examining it, thre issues seem to be raised by the Applicants and vehemently contrverted by counsel for the Respondent. The three issues concern the Applicans' physical address; the promise to pay the interest; and the 2 1 % interest claimed by the Respondent but categorically denied by the Applicants as not ftiving been agreed upon. The three issues - which form a basis for the main suit, are disputed and therefore ought to be tried. In a recent Ruling of this court (per Nsekela, J) some Indian guidelines were adopted, citing the Indian case of M/S Mechalec Engineers and Manufactures Vs M/S Basic Equipment Corp. (1977) AIR SC 577. The I said court was construing Order )sXXV1I of the Indian Civil Procedure Code which is "parl materia" with Order XXXV of our CPC. Simply put, the five guidelines may be succinctly statLd as fallows (after examining the Applicant's Affidavit):-

1. The plaintiff is entitled to a judgment if the defendant's , Affidavit raises no triable issue (s) OF simply is a sham or illusory or "practically moonshine". I" 2

The court may grant leave to the defendant to file a defence on condition that he pays into court or otherwise secured, the sum claimed by the plaintiff. In so doing the court will be exercising its mercy to the defendant by " enabling him to prove a defence". However If the defendant's Affidavit satisfies the court that there are merits and triable issues, then he is entitled to an unconditional leave to defend. A judgment will not be entered in favour of the plaintiff as of right. S 4. The same principle (as in 3 above) applies in situations where the defendant's Affidavit indicates that he has a fair or a bonafide or reasonable defence although not a positively good one. 5. Although the defendant's/applicant's Affidavit does not positively and immediately make it clear that he has a defence, if he discloses such facts as may be deemed sufficient to entitle him to defend or that he shows such a state of affairs that lead to the inference that at a trial of the action he may be able to establish a defence to the plaintiffs claim, such a defendant is entitled for leave to defend the suit. in the instant application the Applicants aver that their physical addresses were known to the Applicant. Instead, the latter proceeded to effect service by publication, an act considered by the Applicants as having tarnished their image. As a result thereof, they claim for costs. The Respondent has raised a strong counter argument in his favour. 3

' Likewise, the Applicants aver that the issue of charging 21% interest was nowhere agreed upon by the parties. The Respondent avers that it is there and shown in the Loan Agreement document. All in all, I consider the aforegoing matters to be triable, thus falling under the provisions of Rule 3(1) of Order XXXV. I therefore allow this Application - the Applicants are granted unconditional leave to defend this suit. However, no order as to costs is provided. ( f :3 1 LA Sd%Bwana JUDGE 1 8/7/2000 S / 4 / / 1