bank of africa t limited vs mohamed abdallh mohamed others 2016 tzhc 2326 17 october 2016

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 139 OF 2014 BANK OF AFRICA (T) LIMITED............ PLAINTIFF VERSUS MDHAMED ABDALLAH MOHAMED SELEMANI MASOUD MKIRITI [....... DEFENDANTS AMINA MOHAMED MKIRITI j 4tR & 17th October, 7016 RULING MWAMBEGELE, 3.: Bank of Africa (T) Limited, the plaintiff, instituted a suit under summary procedure claiming against the three defendants jointly and-severally for, inter alia, Tshs. 224,224,744/03 being repayment of a loan facility taken by the first defendant and guaranteed by the second and third defendants. The first defendant filed an application for leave to defend the summary suit. The second and third defendants have not and have never entered appearance ever since the suit was filed. The plaintiff prayed for and was granted leave to serve them through publication but yet no appearance was entered by them; that is the second and third defendants. Following the nonappearance by the second and third defendants even after service by publication, on 04.10.2016, Ms. Montano who appeared for the plaintiff prayed for judgment and decree against them in terms of Order XXXV rule 2 (2) (a) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. Mr. Mrutu, the learned counsel who appeared for the first defendant strenuously objected claiming that the nature of the reliefs sought by the plaintiff will affect his client as well as the mortgaged house belongs to him. He thus prayed that the order sought by the plaintiffs counsel should await the outcome of the first defendant's application for leave to defend the suit. Ms, Montano for the plaintiff argued that the iearned counsel for the first defendant has no power to object to the prayer as the first defendant has not been granted leave to defend the suit. This is a ruling in respect of the arguments.- The question which this ruling must answer is whether judgment and decree may be entered against the second and third defendants in this suit in which they have been sued jointly and severally with the first defendant. I have had an opportunity to discuss this point in Tanzania Women's Bank Limited Vs Winfrida Kundaufoo Kimaro & 2 Ors, Commercial Case No. 70 of 2015"' (unreported). In that case, whose facts and arguments fall in all fours with the case at hand, I relied on Hathisang Premji Patel Vs Ramji Jethabhai (1947) 14 EACA 23 for the stance that the second and third defendants, having been sued jointly and severally with the first defendant, a summary judgment could not be entered against them until the suit against the first defendant was finally determined. As I still hold the same position today, I will reiterate the position in this ruling. In Hathisang, the appellant Hathisang Premji Patel had sued the respondent Ramji Jethabhai and another defendant "jointly and/or severally, or in the alternative jointly and severally". The respondent had not filed a defence for being out of time. The appellant wanted to prove his case against him exparte. The trial Judge refused him leave to do so until he had heard the case against the second defendant who had filed a defence. In dismissing the appellant's prayer, the learned trial Judge had ordered: "I am not prepared to allow the plaintiff to prove ex parte against the 1st defendant in the circumstances in view of the defence filed by the 2nd defendant. The case should proceed to hearing when a just order can be made against the 1st defendant..." On appeal, the Court 'o f Appeal for Eastern Africa confirmed the learned trial Judge's order. Quoting from the headnote, the Court of Appeal for Eastern Africa [Before Nihill, C.J. (Kenya), Sir G. Graham Paul, C.J. (Tanganyika) and Edwards, C.J. (Uganda)] held: "... the learned Judge had a discretion,, which he had rightly exercised, to delay judgment against the respondent until he had heard the case against the second defendant." I finditirresistible to add the following words of Sir G. Graham Paul, the then ChiefJusticeof Tanganyika, in concurring with the judgment of Nihill, President (supra): "I concur in the judgment of the learned President and would only add that on the face of the plaint this would appear to be a case where necessarily the learned Judge had to delay judgment as against the first defendant; until he had heard the case for the second defendant, the claim being against the defendants 'jointly, and/ or severally, or in the alternative'." I respectfully subscribe to the foregoing position and think it is still good lawc today. The position of the law is therefore that when two or more defendants^ are sued jointly and severally, a summary judgment (or default, expartet judgment, as the case may be) cannot be entered against one or some of the defendants until the cases of other defendants are fully determined. Thus in the case at hand, a summary judgment cannot be entered against the second and third defendants who have defaulted appearance until the case against the first defendant, with whom they are sued jointly and severally, is finally heard and' determined. In the premises, the prayer made by Ms. Montano, learned counsel, for judgment and decree under Order XXXV rule 2 (2) (a) of the CPC against the second and third defendants at this stage is refused. The present case should await the outcome of Miscellaneous Commercial Cause No. 268 of 2015 in which the first defendant has applied for leave to appear and defend the summary suit and in the event leave is granted, it will have to proceed to hearing until final determination after which a just order will be made against the first defendant. For the avoidance of doubt, no order is made as to costs in this ruling. Order accordingly. DATED at DAR ES SALAAM this 17th day of October, 2016. J. C. M. MWAMBEGELE JUDGE