AHACO OIL LTD VS APEL PETROLEUM LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 54 OF 2015 AHACO OIL LIMITED................................. 1st APPLICANT HADIJA ABDUL FARAJI.............................2nd APPLICANT

VERSUS

APEL PETROLEUM LIMITED..................................................... RESPONDENT

RULING Mansoor, J: Date of RULING- 11th MARCH 2016 Order 35 of the Civil Procedure Code ( C. P. C.) provides for a summary procedure in suits on negotiable instruments by reason of which when a suit is filed under this Order the facts stated in the plaint are deemed to have been admitted and the plaintiff is entitled to a decree on his pleading unless the 1 I Pug c defendant satisfies the court that he has a tenable defence and the court is pleased to grant him leave to defend the suit which it might do either unconditionally or subject to such reasonable conditions as it might deem fit to impose. This is provided for by Order 35 Rule 2, the material portions of which are. "(2) (1) suits to which this Order applies shall be instituted by presenting a plaint in the usual form but enclosed “Order XXXV: Summary Procedure” and the summons shall inform the defendant that unless he obtains leave from the court to defend the suit, a decision may be given against him and shall also inform him of the manner in which application may be made for leave to defend. ” (2) In any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defense in 2|Page pursuance thereof, the

allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree" "3 (1) The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, where the suit is on bill of exchange or promissory note; or disclose such other facts as the Court may deem sufficient to support the application. (2) Leave to defend may be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.': The time which a defendant, on whom summons is served as provided under Order 35, Rule 2, paragraph 1 has to file an application for leave to appear and defend the suit is to be, found in Part Three of the First Schedule to the Law of Limitation Act, which prescribes a limitation of 21 days for an application for leave to appear and defend a suit under the 3 | Page summary procedure under Order XXXV of the Civil Procedure Code commencing from the time when the summons is served. Under Order 35, Rule 3, C. P. C., the Court shall upon application by the defendant, give leave to appear and defend the suit, after the defendant satisfied the Court by facts disclosed in affidavits that there is prima facie defense. Order 35, Rule 2 (2) of the

Code provides that in any case in which the defendant has not obtained such leave, the allegations in the plaint shall be deemed to be admitted and that the plaintiff shall be entitled to a decree. I have read the affidavit of Abdallah Shiraj Athuman and Hadija Abdul Faraji in support of the application and I am satisfied that the defense taken by the defendant in leave to defend the suit is acceptable and does qualify the Applicants to be given leave to defend the suit. The law requires that the Applicant has to satisfy the conditions given in the law. The Applicants have to either deny that they have not taken the loan, or they have to show that they have paid either all or part of the loan. The Applicants in the present case admits to 4|l>age Aa have taken the loan, and also have pleaded in their affidavit that they have paid a portion of the loan. The Applicants have demonstrated that they have an arguable defense entitling them for leave to defend the summary suit, in that there is some discrepancies in the amount of the loan or credit which is to be paid to the plaintiff by the defendants. Since the Applicants have satisfied the conditions set in Order XXXV Rule 3 of the CPC as amended by the Mortgage Financing (Special Provisions) Act, 2008, leave is hereby granted to the Applicants to defend the summary suit. In such circumstances, leave is granted to all the Applicants to defend the summary suit Application allowed, costs to follow the cause in the main suit. DATED at DAR ES SALAAM this 11™ day of MARCH, 2016 5| Page