CRDB Bank Limited v Lwambagaza (Commercial Case No. 10 of 2000) [2000] TZHC 668 (23 June 2000)

64 TANZANIA LAW REPORTS [2002]T.L.R. a CRDB BANK LIMITED u JOHN KAGIMBO LWAMBAGAZA (NUMBER 1) HIGH COURT OF TANZANIA B (Commercial Division) AT DARES SALAAM (Nsekela, J.) C COMMERCIAL CASE No. 10 OF 2000 Civil practice and procedure - Summary procedure - Suit instituted under Order XXXV of the Civil Procedure Code, 1966 - Before filing defence leave to D appear and defend must be sought - Principle on which Court may act. The plaintiff bank sued the defendant for recovery of TZS. 41,996,636.17 being the outstanding balance of a loan the plaintiff had advanced to the defendant. The suit was instituted under Order XXXV of the Civil Procedure Code, 1966 which provides E for summary procedure. This was an application by the defendant/applicant to appear and defend the suit filed against him. The application was supported by an affidavit in which the applicant F said that there were triable issues fit to go for trial, namely that the period of repayment was not yet over and that the amount claimed by the respondent bank was more than what was due from the applicant to the respondent bank. The court examined the law under which an applicant for leave to appear and G defend may be granted such leave. Held: (i) The principle on which the court acts is that where the defendant can show by affidavit that there is a bonafide triable issue, he is to be allowed to defend as to that issue without condition; H (ii) Since paragraphs 4, 6 and 8 of the supporting affidavit do set up possible defences to the suit, the applicant has raised triable issues fit to go for trial. Leave to appear and defend granted

CRDB BANK LIMITED v, JOHN KAGIMBO LWAMBAGAZA (NUMBER 1) 65 Cases referred to: A

1. Thssen-Stahlunion Export GMBH v. Kibo Wire Industries Ltd [1973] LRT Number 54
2. CRDB Bank Limited v. Dantan Electronics Ltd and Jamila Rasmussen, g HC - CAD, Commercial Case Number 12 of 2000 (unreported)
3. Kundanlal Restaurant v. Devshi and Company (1952) 19 E.A.C.A. 77 p
4. Souza Figuerido and Company Ltd v. Moorings Hotel Company Ltd [1959] EA 425 Statutory provision referred to:

1. Civil Procedure Code 1966, Order XXXV D Mr Swai, for the Defendant/Applicant Mr Mwandambo, for the Plaintiff/Respondent RULING E (Delivered 23 June 2000) Nsekela, J.: The respondent Bank (CRDB Bank Limited) has sued F the applicant, one John Kagimbo Lwambagaza for the recovery of TZS. 41 996 636-17 being the outstanding balance of a loan the respondent advanced to the applicant. Since the suit was instituted under Order XXXV of the Civil Procedure Code (Summary Procedure), G the applicant before filing the defence, has first to seek leave to appear and defend the suit, hence this application. The application has been brought under Order XXXV of the Civil Procedure Code praying for the following order, namely that: h The applicant be granted leave to appear and defend the suit filed in the Honourable Court. I

66 TANZANIA LAW REPORTS [2002]T.L.R, The application is supported by an affidavit sworn to by the applicant. I can do no better than quote a few paragraphs of the supporting affidavit which provides: 2. That I admit to have applied for the loan which is the subject matter of the suit against me. I state that the sum of TZS. 30 000 000 was granted and paid to me in instalments as shown in annexture to the plaint. 4. That the repayment of the loan was to be done in a period of 21 months effective the expiry of the grace period of six months granted to me. To be precise, I was required to start repaying the loan effective from 29 February 1999 and hence the repayment period has not expired. 6. That I strongly dispute the amount claimed by the respondent/ plaintiff and according to my calculations, the principal sum and interest thereon due to the respondent as of the date of suit is shillings thirty seven million (TZS. 37 million) only and not 41 996 336-17. 8. That in the premises it is apparent that there are factual matters to be determined namely: (i) ascertained of the period of repayment; (ii) the ascertained of the amount due to the respondent on the date of the suit. At the hearing of the application Mr Swai learned advocate, represented the applicant and Mr Mwandambo, learned advocate, represented the respondent Bank. In his oral submission, Mr Swai adopted the contents of the supporting affidavit, in particular paragraphs 4 and 6 which allege that the date for the liquidation of the loan facility had not as yet expired and that the exact amount of the outstanding loan was in dispute. On his part, Mr Mwandambo strenuously resisted the application. He was of the view that the contents of the counter-affidavit sufficiently answered the applicant ’ s assertions in the affidavit and helpfully referred me to a number of authorities including Thssen-Stahlunion Export

CRDB BANK LIMITED v. JOHN KAGIMBO LWAMBAG AZA (NUMBER I) 67 GMBH v. Kibo Wire Industries Ltd (1); and CRDB Bank Limtied v. a Dantan Electonics Ltd and Jamila Rasmussen (2). It was the learned advocate ’ s contention that the applicant was using delaying tactics so that the respondent Bank is unnecessarily being kept from what is due to him. B The law, on an application of this nature was authoritatively stated in the case of Kundanlal Restaurant v. Devshi and Company (3) at page 79. In this case, the defunct Court of Appeal for Eastern Africa quoted with approval an extract from the Annual Practice of c 1951 which reads- The principle on which the court acts is that where the defendant can show by affidavit that there is a bona fide triable issue, he is to be allowed to defend as to that issue without condition. A condition of payment into Court ought not to be imposed where a reasonable ground of defence is set up. The condition of payment, or giving security, is seldom imposed, and only in cases where the defendant consents or there is good ground in the evidence for believing that the defence set up is a sham defence E and the master is prepared very nearly to give judgment for the plaintiff in which case only the discretionary power given by this rule may be exercised. It should not be applied where there is a fair probability of a defence nor where the practical result of applying it would be unjustly to F deprive the defendant of his defence. This extract was also adopted in Souza Fiquerido and Company Ltd v. Moorings Hotel Company Ltd (4) at page 426; Thssen-Stahlunion Export GMBHv. Kibo Wire Industries Ltd (5). In the instant application, G paragraphs 4, 6 and 8 of the supporting affidavit do set up possible defences to the suit. It is true that in paragraph 6 TZS.37 million appear to have been admitted, but this does not mean that the applicant has no defence for its recovery. It may not be a positively good h defence, but I cannot confidently state that the defence is a sham and at the moment I am unwilling to deprive the applicant of his defence. The applicant has in my view raised triable issues fit to go for trial. I

68 TANZANIA LAW REPORTS [2002JT.L.R. A In the result, I do hereby grant to the applicant leave to appear and defend the suit unconditionally. The written statement of defence should be filed on or before the 27 June 2000; reply if any, on or before 30 June 2000. Mention on the 4 July 2000. Costs to be in B the cause. It is accordingly ordered. c PETER LOILUDIE u MEYAN MBAYO AND OTHERS HIGH COURT OF TANZANIA AT ARUSHA D (Msoffe, J.) (PC) CRIMINAL APPEAL No. 9 OF 1999 E (From Arumeru District Court, Criminal Appeal No. 25 of 1998, originating from Enaboishu Primary Court, Criminal Case No. 506 of 1997) Evidence - Identification — Identification of dogs at night — Need to adduce p evidence to show whether conditions allowed for proper identification. The respondents were convicted of an omission to take reasonable care of their dogs before the Enaboishu Primary Court. The dogs were said to have bitten the appellant ’ s cow to death at night. They appealed to the District Court of Arusha where their G appeal was allowed. The appellant, dissatisfied, appealed to the High Court. The contentious issue was the identification of the dogs in question. Held: (i) The evidence was not sufficient to establish conclusively that the dogs which the appellant saw that night belonged to the respondents; H (ii) Since it was dark, more positive evidence of identification should have been given by the appellant, especially whether the conditions that night allowed for proper identification, such as whether the torch light used was bright enough to allow for correct identification, whether the dogs had any special marks or whether he was so familiar with them as not to mistake them at any time.