GAPOIL Tanzania Limited vs Kitonga Comfort Hotel Limited (Civil Case No. 339 of 1997) [1999] TZHC 477 (30 July 1999)

fl IN TffE HIGH COURT OF TANZANIA (DAR ES SAL..l.iiM DISTRICT REGISTRY) AT Dl'-,.R ES SALAAM CIVIL CASE NO. 339 OF 1997 GAPOIL TANZANIA LIMITED •••••••••••• PLAINTIFF Versus KITONGA COMFORT HOTEL LIMITED 0000000 DEFENDANT RULING CHIPETA J J. : --- In this case, the plaintiff, GAPOIL (T) LIMITED, is suing the defendant, KITONGA COMFORT HOTEL LIMITED for recovery of Shs.12,963,842. The suit has been filed under Summary Procedure. This \s a Ruling on an application by the· defendant for leave to .a1Jpear and defend the suit. ,. With the permission of the Court, learned advocates of the parties filed written submissions. I have carefully perused and considered those submissions. In the first place, the defendant/applicant submitted that there is a misjoinder of parties and causes of action in that,the Agreement (Anne::~ture A to !he plaint) was bchteen the plaintiff e.nd .one Anderson Z.K. Mwanyato and not between the plaintiff and the defendatJ:t•, and so the defendant's name should be struck off. '- ' ., I ', As correctly submitted by learned counsel for the plainti'f-.;('/respondent, ... ,: ... , the pleadings clearly show th.at the plaintiffis cause of action is'founded on the dishonoured iJills of exchange. As t see it, the Agreement only

2 -:Jrovides the background to the relc.t:i.onahip lwtwe.-:n the parties. Besides, I note th,Jt the defend -nt has not d:i.sowned 1 or denied having dravm, the dishonoured bills of exchange. This objection, therefore, has no merit. The second submission was that there was no statement in the plaint. th,Jt consider::ltion pass,d fr0m the plaintiff to the . '• defendant. This objection is also with.out merito Paragraph 3 of the plaint clearly R-1Lg'9s that consi d.eration passed as the apT;)li cant/ defendant received petroleum products from the reRpondent/plaintiff. What is more, the ,'.:l.pplic;.mt does not ·allege lack of considerntion. Third.1y, j_t has been submitted tha.t the plaint j_s defective for failure to describe the defendant. I am una.ble to see the basis for this submission. The plaint described. the name of the defendant and j_ts mailing address. I do not know wh,,.t other descriotion the defendaYJ.t wcl!lted. It would have been e. different matter if it had been alleged that the!'e were t1·10 companies of the defendant vs na.rne of the same addree.s. I now turn to the third objection, which was that the plaint was defective because it d:i.d n.ot contain a statement that notice of dishonour was issued. In my view, paragraμh 6 of the μla.int sufficiently alleges that there was such noticec This grotmd of complaint, therefore, is also baseless~ As I understand the law, :for an ap_pl:i cation ,such as the present one -- } to succeed, the a.prliccnt must disclose substantive triable issues a'ld not just a sham defence. Matters like fraud, lack of consideration, or a denial tl1at the ari-plica.11t drew the dishonoured bills of exchangz. ( See Hasmi. v., Banque Du Conp:o, 5 E.A.C.A. 89) \rlould be considered. In the instant case, the applicant's affidavit in sun,1ort of the ap?lication the applica..nt has raised no sch tr~able issues. It was only in :its reply to the counter af.fidavi t tha.t the deponent states that the cheques were not issu.d by th:) defendant. To my mind 1 this is no more than an afterthought

3 For these reasons, I am of th~ view that no triable issues have been disclosed by the arplicant and such defence as has been "". raised is a sham defence. 1 1 therefore, decline to exercise rrry d . . in favour ft• 1 . t Th" 1

• d" 1 1scret1on · · o .1e ap'., 1can • is ap-p 1cation a.ccor 1ng y fails and so is hereby dismissed with costso I hereby enter judgment for the plaintiff as prayed in the plaint vii th costs. Bo Do CHIPETA JUDGE Ruling delivered' in Chambers this 30th day of Julyt· 19990 Ms. Bayona: for applicant For Respondent: Mr. Maira. B. D. CHI PETA JUDGE J 1 f ,,. 1' i,