Shokat . Hassanali vs R. N Patel (Miscellaneous Civil Application No. 96 of 1999) [2000] TZHC 578 (4 May 2000)

IN THE HIGH COURT OF TANZANIA AT MWANZA MISCELI.ANEOUS CIVIL APPLICATIO~ NO. 96 OF 1999 (Original High Court Civil case No. 44 of 1999) SHOKAT B. HASSANALI • • • • •• •• • • APPELI.A.NT versus R,N. PATEL • • 0. •• • • •• • • RESPONDEl'D RULING NCHALIA, J~. This is an application for leave to appear and defend a summary suit filed against the applicant in Civil case No. 14/99 before this court. The plaintiff in that suit, who is the respondent in this application, is one R .N. Ptel. The applicant/defenr\ant is ene Shokat B. Hassanali who is represented in both matters by Mr. Rutaisire, learned advocate, while the plaintiff/responqent has the services of ¥1r. Rugaimukamu, learned advocate. The application is supported by the affidavit of the applicant/ defendant. The application has been filed under Order 35 Rules 2(1), 3(1)(2) of the Civil Procedure Code, 1966, Mr. Rutaisire, learned advocate, argued the application, however, with great difficulty because the grounds averred by the applicant/ defendant in support of the application do not raiFe any material and substantial controversy. The summary suit levelled against the applicant/defendant is based on dishonoured cheques which the applicant/d.E'-rnr\l'lnt ha.d drawn and issued in favour of the plaintiff/respondent as security fOI' a loan of shs. 45 1 000 1 000/='.: which the plaintiff/respondent had advanced to the applicant/defendant.. The said cheques, which are six in number, have been photostated and annexed to the plaint in the sub- stantive suit and marked annexture 11 B 11 collectively. The loan agreement is annexture 11 A1 1 to the plaint, and the serial numbers ••••.•• /2,

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2 of' the six cheques in question are also indicated in that li,an agree- ment~ It is admitted by the applicant/defendant that he drew and issued the said cheques to the plaintiff/respondent. The only argument the applic,ant/defendant advances, ii=: just that thoF:e cheques were blank when he issued them, that is, they had no amount indicated on each.of them. This is averred in para 4 of applicant 1 s affidavit. Another argunient raised by the applicant in para 5 of hie affidavit . i~'i that the plaihtiff respondent did not ihform him that the said cheques were lishonoured by the bank when the same were presented " , tc\r payttient. Th~ applicant arg-...:.<>B further that the handwriting in · those cheques, with the exception of the signature, is not his. Mr-~ Rutaiaire cited some decided cases to support this argument o! handwriting·• namely Davd Sassoon & co. LTD v. Navichandra Patel &· _othrs (1972) HCb NO•· 148; Gullamhussein .Fazal v. Muzafar Hussein ______ ,,.. ____ ,,, ___ - ~--·-----·- .. ---- ..... Gtlllamali 1976 LRT NO. 35. . I examined Mr. Rutaisire learned advocate, on some specific crueial elements in this matter, and he replied and admitted as followa: That the applicant/defendant admits that he was advanced the amount of shs. 45,000 1 000/= by the plaintiff. ·That the applicant/defendant issued the cheques annexture 11 Bn to the plaint as security for this loan. Mr. Rutaisire conceded that, blank cheques with no amount indicated thereon are not in law security for a loan, Mr, Rutaisire also conceded that th 0 t!"+:.i:tl ,;imounts on the six ehequta annexture "B" to the plaint is only 45,000,000/=, that is, the exact amount of the loan which the applicant/defendant received from the plaintiff/respondent. Inspite o:f this, Mr. Rutaisire l',II'ayed that the applicant/defendant be granted leave to defend the suit. In reply Mr. Rugaimukamu, learned advocate for the plaintiff/ respon:lent, strongly opposed this applic-3.tion for reasons that there are no triable issues raised in the grounds averred by the applicant in his affidavit, Mr. Rugaimukamu reiterated the applicant ts

3 admission that be issued to the plaintift/t-eepondem: all the, ch&q,iea ' annexture "B" to the plaint, and that the total amounts ind~ ated on those six cheques is exactly 45,000,000/=t which is the amount ef the loan the applicant took from the plaintiff/respenden_t. . . Mr, Rugaimukamu submitted that, the said cheques would not have .amounted to any security for the loan in this case unless they carried some specific aJDOunt certified by applioant•s signature, Mr. Rugaiarukamu submitted that, whether the handwriting on the said cheques is that of the applicant/defendant or of eome&ne else ia ef' no legal consequence, because the eittture on thlffle cheques 18 not disputed to be that of the defendant/applicant, I quite agree vf.th Mr, Rugaimukamu•s submission and I uphold him on tbtlt, After an. one wonders why the applicant/defendant issued eix cheques to the plaintiff/respondent, By inference those six cheques were intended by h, and the plaintiff/respondent haci agt"eed, that each one of_ those cheq,,_s should carry a specific amaunt such as was.expeoted er likely to 'be on applicant 1 s credit in the bank in hi~ acci,unt. There must have been spec if ic instruct ione frem the a1Plicant ts · the plaintit:t/respondent on how and. when to cash each one of tMso six cheques. Without such instruction, I do net see how the plail\tt- ff/respondent would have pert3onally inserd any amounts ttn each on• ef those cheques without the slightest idea et the applicant•s bank account•a financial position at the tim of presenting each on• of. those cheques to the bank for payment. At any rate, the plaintiff/ respondent who is a registered Acccuntut ,, would neyr ~ve accepted. blank cheques as security for a colossal ~an of 45,NO,too/=• Similarly, the applicant/defendant would nttt have issued six &lank cheques to the plaintiff/respondent as security for the said loan, And, moreover, the plaintiff/respondent pre,:,ented the said c,hequee for payment within the time whioh was stipulated and agreed upsn ~ •••• /4, • I

4 the parties in para 2 of the Loan Agreement (ArtM;rture HA 11 to the plaint), that is on or before 30th June, 1998. ThiF eondition was strictly honoured by the plaintiff/respondent, but still the sid cheques bounced. On the foregoing discussions I find no materia1 upon which this court will base a justifiable order.granting leave to the applicant/defendant to appear and defend the summary suit. It is my finding that this application has not been file41. in eu: and honesty, the same is legally miseonoei1ted and is disntis~ with oosts. Order accordi.ngiy. Application dismissed. , i/( 7 ;//) i'! /, '.(I/ J< /4.//11 ,,· ., 1 , f 1 .u ,1,JdJ y £ t ./"" !,.,.. ··-1'\ M.D. NCHALLA ' JUDGE 5/4/2000 4.5.2000 Coram: MD• Nchalla J. For Applicant: Mr. Rutaisire, Advocate For Respondent: Mr. Rugaimukamu, Advocate c.c. Restituta Court: AT MWANZA 4/5/2000 Ruling delivered in court at M1:!anza in the prisence ef the partiea• Counsel, this the 4th day of May, 2rn,. Right •f appeal explained. i~J@' M .D o NCHAUA JUDGE