MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 17327 OF 2024 (Originating from commercial case no. 14201 of 2024) GEMEN ENGINEERING CO. LTD …………….……………………………APPLICANT

VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LIMITED…………….1ST RESPONDENT ATTORNEY GENERAL………………………………………………….2ND RESPONDENT

RULING Date of Last order: 13/11/2025 Date of Ruling: 17/01/2025 GONZI, J This is an application for leave to defend a summary suit. The Applicant who is the Defendant in the summary suit has brought the present application seeking leave for the Applicant to appear and defend a Commercial Case No. 14201 of 2024 between Tanzania Electric Supply Co. Ltd and Attorney General versus. Gemen Engineering Co. Ltd. The Applicant herein filed this application pursuant to order XXXV rule 3(1) (b) and 2 and 1 section 95 of the Civil Procedure Code CAP 33 R.E 2019 praying for the following orders: i. That the Honourable Court may be pleased to grant leave to the Applicant to appear and defend a Commercial Case No. 14201 of 2024 between Tanzania Electric Supply Co. Ltd and Attorney General versus Gemen Engineering Co. ii. Costs of the Application iii. Any other order(s) that this Honourable Court may deem just to grant. The Application was supported by Affidavit of Weibe Elias Nyantori, Principal officer of the Applicant and was opposed by Counter Affidavit of Elizabeth Kimako, Principal officer of the 1st Respondent. The Applicant adduced the following reasons in her affidavit: i. The Applicant made various electricity bills payment from 2012 to November 2015 where the Applicant’s operations were stopped by the National Environment Management Council (NEMC) hence the aforementioned

electricity bill payments, the principal amount and cumulative interest was erroneously increased by the 1st Respondent 2 ii. That the Applicant did not fail to pay the 1st Respondent’s electricity bill and attached proof of payment from 2012 to November 2015 iii. That on November 2, 2015 a team of NEMC environmental inspectors and Bagamoyo District Council Officials visited and inspected the site in Makombe village, Lugoba ward and ordered the Applicant to shut down her facility from 3rd November 2015 where the first Respondent disconnected its power two weeks after the Applicant ceased operations until 12th August, 2022 when she received demand later from 1st Respondent on while there were no ongoing operations. In the Counter Affidavit, the Respondent partially acknowledged that payments were made by the Applicant for some months while for others the payment had been neglected. The Respondent denied the contention that the summary suit was filed by the Respondents against the Applicant due to NEMC’s shutting down of the Applicant’s business, rather due to long time accumulated bill arrears which caused financial losses to the Respondents since 2012. 3 The application for leave was heard by way of written submissions. The Applicant was represented by Mr. Bonaventura Masesa, Learned Advocate, and the Respondents enjoyed the service of Mr. Boaz Msoffe, Learned State

Attorney. Mr. Masesa, submitted that under Order XXXV Rule 3 (l)(b) of the Civil Procedure Code, the provision under which this application has been preferred, the law enjoins the Courts to grant an application for leave to defend a summary suit where the Court is satisfied that the affidavit filed in support of such application discloses such facts as the Court may deem sufficient to support the application. He referred the Court to the case of Mohamed Enterprises (T) Limited vs Biashara Consumer Services Ltd [2002] TLR 159, where the Court held that the triable issue must be made clear in the affidavit filed in support of the application. Mr. Masesa cited further the case of Makungu Investment Company Ltd vs Petrosol (T) Limited, Civil Appeal No. 23 of 2013, where the Court of Appeal of Tanzania held that; “It is common ground that the underlying factor for grant of that leave is existence of triable issues, a matter 4 of fact which has to be demonstrated by the applicant. The Court's determination on whether or not there are triable issues has to be based on the affidavit, obviously because as of that stage, there is yet a statement of defence from the defendant.” Referring to paragraph 5 of Weibe Elias Nyantori's affidavit in support of the application, Mr. Masesa, Learned Advocate, submitted that the Applicant paid all the electricity bills from February 2012 to November

2015, when the Applicant's operations were stopped by the National Environment Management Council (NEMC). He added that the 1st Respondent cut off its power supply after the Applicant had just ceased operations on November 3rd, 2015. He submitted that from then onwards the Applicant hasn't received an electric bill that is since November 2015. Thus, he submitted, the Applicant had and has no outstanding electricity bill arrears as to justify the summary suit filed against the Applicant in respect of which leave is sought. Mr. Masesa submitted further that in order to strengthen the facts provided in paragraph 5 of the Applicant's affidavit, the Applicant attached proof of payment for the 1st Respondent's electricity bill through paragraph 5 6 of Applicant's affidavit. He argued that the Applicant therefore has no outstanding electricity bill balances thus, disputed having any debt in the amount claimed. Mr. Masesa further contended that the applicant has established existence of triable issues in the summary suit. He reiterated the case of Mohamed Enterprises (T) Limited vs Biashara Consumer Services Ltd (supra), where it was held that: "In the application of this nature the Court is not required to involve its lengthy arguments but, rather to look upon the affidavit filed in support of the application to see whether the deposed facts have demonstrated a triable issue fit to go

for trial. The applicant is only required to show a fair and reasonable defence." Mr. Masesa, Learned Counsel submitted that since the Applicant is disputing with proof the outstanding electricity bills claimed by the 1st Respondent, this amounts to a fair and reasonable defence, establishing existence of a triable issue hence justifying the Court to grant the Applicant leave to defend the main suit. He argued that if the application is not granted, a summary judgement may be entered and enforced against the 6 Applicant resulting to her suffering irreparable damages as the 1st Respondent in filing the summary suit did not consider the Applicant's electricity bills payment, hence defeating the ends of justice. Mr. Msoffe, Learned Counsel made reply submissions. He prayed to make clarifications that, Annexure OSG-1 appearing at paragraph 4 of the Counter Affidavit was wrongly attached as the Respondent intended to attach a copy of Plaint in Commercial Case No. 14201 OF 2024. He urged this Court to go through the main case and satisfy itself on the particulars of the Respondents’ plaint. He then adopted the Counter affidavit to form part their reply submission. Mr. Msoffe, Learned Counsel, submitted that as per the Applicant’s affidavit in support of the application, all the electricity bills were paid from February 2012 to November 2015 and that the Applicant has not received any

electricity bills since November, 2015. Mr. Msoffe contended that as per paragraph 6 of the Counter Affidavit, the Applicant made partial payments of the issued bill for some months and neglected to pay in respect of other months as per paragraph 7 of the Plaint something which resulted into accumulation of the principal amount as per Exhibit OSG-2. 7 Mr. Msoffe further argued that the Respondents’ claims are not predicated on new bills from November, 2015 but rather on the unpaid bill arrears resulting from partial payments of the accumulated bills. Mr. Msoffe further submitted that the Applicant did not challenge the above averments contained in the counter affidavit which is tantamount to acceptance since an affidavit is a substitute of oral evidence. He submitted that it is on record that on 26/08/2024 the Court ordered the Applicant to file reply to the counter affidavit, if any, thus non-filing of reply to counter affidavit implies that the Applicant does not dispute the facts deposed in the counter affidavit. Mr. Msoffe submitted further that, it is trite law anything submitted outside the deposed facts in the affidavit or reply affidavit is tantamount to submission from the bar which is not evidence and cannot be used to support the case. For this rule, he referred the Court to the case of Said Sultan Ngalema vs Isack Boaz Ng'iwanishi and Others, Civil Application No.

362/17 of 2021, CAT at Dar es Salaam (Unreported). The Court at pages 8 and 9 held that: “As rightly argued by Mr. Rumisha, submission by counsel from the bar is not evidence. In the often-cited case of Trasafrica 8 Assurance Co. Ltd v. Cimbria (EA) Ltd (2002) E.A 627 the Court of Appeal of Uganda from which we take inspiration stated that: "As is well known a statement of fact by counsel from the bar is not evidence and therefore the Court cannot act on it." Mr. Boaz submitted that the Applicant does not dispute the fact that he was making partial payments for some months in respect of the issued bills. He added that Exhibit OSG-2 proves that the Applicant made partial payments of the accumulated bills whereby for instance, on the bill dated 03/01/2014 the debit was TZS. 3,641,255.92 and the Applicant only paid TZS. 3,000,000.00 on 04/03/2014 and the TZS. 641,105.66 which remained unpaid was carried forward as a debt. Mr. Msoffe argued that the Applicant continued with this practice until it was accumulated to constitute the principal amount of TZS 23,563,131.06 and an accumulated interest of TZS 47,786,693.73 at the time of institution of the suit. Mr. Msoffe, Learned State Attorney submitted that there are no triable issues enough to grant leave to the Applicant as she has pending arrears accrued as per paragraph 4 of the Respondents’ counter affidavit and that 9 the

Applicant has failed to meet the threshold for the grant of leave to defend summary suit as set out in the case of Makungu Investment Company Ltd (Supra). He argued that in the circumstances of this case, the Applicant should be denied leave or, in alternative, be granted conditional leave as per the provision of Order XXXV Rule 3 (2) of the Civil Procedure Code [CAP. 33 R.E 2019] since the Applicant’s alleged defence is frivolous, vexatious and aims at prolonging the suit. He added that in case of the Court granting the Applicant conditional leave, it should direct that the Applicant should pay into Court the principal amount of TZS 23,563,131 or any amount as the Court thinks fit before the Applicant can be allowed to appear and defend the suit. In his rejoinder Mr. Masesa, reiterated that the Applicant paid all electricity bills from February 2012 to November 2015 when the Applicant's operations were stopped by the National Environment Management Council (NEMC) and the 1st Respondent cut off its power supply after the Applicant ceased operations on November 3rd, 2015. He argued that the Applicant hasn't received any electricity bill since November 2015 thus, the Applicant has no outstanding electricity bill arrears. 10 Mr. Masesa rejoined further that Exhibit OSG-2 as relied upon by the Respondents in their submission under paragraph 3 of their Reply Submission cannot

suffice to prove the Applicant´s liabilities since it is just a print-out made from their computer and does not disclose whether it was communicated to the Applicant or not. Mr. Masesa rejoined further that the cited case of Said Sultan Ngalema vs Isack Boaz Ngiwanishi and others, Civil Application No. 362/17 of 2021 CAT at Dar es Salaam (unreported) doesn’t suit the scenario at hand since there is already evidence of payment on record through paragraph 6 of the Affidavit. Therefore, he prayed, as per Order XXXV Rule 3 (1)(b) of the Civil Procedure Code, the applicant has established the grounds to be granted leave unconditionally. He prayed for the Court to grant leave to the Applicant to appear and defend Commercial Case No. 14201 of 2024 between Tanzania Electric Supply Co. Ltd and Attorney General versus. Gemen Engineering Co. Ltd which is pending in this Court. I have heard the submissions by both parties and taken into account the cited authorities. This is an application for leave to defend a summary 11 suit. In Adina Zola vs Ralli Bros. Ltd (1969) E.A 691 the Court explained the rationale of having Summary Procedure thus: “Order XXXV is intended to enable a Plaintiff with liquidated claim to which there is no defence to obtain a quick and summary judgment without being unnecessarily kept from what is due to him by delaying tactics of the defendant...” In determining an

application for leave to defend the Court should be cautious not to prematurely determine the matters in contention in the summary suit itself. At this juncture the consideration by the Court should be limited to determining as to whether or not through the affidavit filed in support of the application, the deposed facts demonstrate triable issue(s) fit to go for trial. The applicant is only required to show a fair and reasonable defence. (See for example, Mohamed Enterprises (T) Limited vs Biashara Consumer Services Ltd.) Therefore, the relevant issue now is whether the Applicant has raised triable issues or probable defence to the summary suit. Where the Applicant demonstrates a reasonable defence, unconditional leave to defence should be granted and where the defence disclosed is sham or weak, leave to defend may be granted with conditions such as depositing security in Court. 12 This cardinal principle is reiterated in the case of Mohamed Enterprises (T) LTD v Biashara Consumer Services Limited (supra) at Page 162 where the Court held that: “In construing this chamber application at this stage of the proceedings, like similar ones filed before this Court in the near past, the Court has always followed the settled province of law namely that it has to determine whether there are triable issues or not. I have gone through the evidence adduced by the Applicant in

the supporting affidavit and the counter affidavit by the Respondent. It is undisputed that there are triable issues in the summary suit. One such triable issues is whether the Applicant made full payment for the electricity bills from 2012 to November 2015? The Respondents claim that the Applicant was of the habit of making part-payment of the bills presented to them as a result there is an unpaid principal sum and accrued interest thereon. The Applicant has strongly disputed this allegation and refuted the print-out of the outstanding bills presented by the respondents as annexture OSG-2. Instead, the Applicant has attached what he considers to be his proof of full payment of the electricity bills. 13 The Applicant is therefore granted an unconditional leave to defend the summary suit in Civil Case No. 14201 of 2024 between the same parties herein that is pending before this Court. The Applicant is directed to file its Written Statement of Defence within 21 days from the date of this Ruling. Each party shall bear its own Costs of this Application. It is so ordered. A. H. GONZI

JUDGE 17/01/ 2025 Ruling is delivered this 17th day of January, 2025 in the presence of Ms. Catherine Webeya, Advocate for the Applicant. A. H. GONZI

JUDGE 17/01/ 2025 14