CHARLES MOSHA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA MISC. CIVIL APPLICATION NO. 34 OF 2023 (Arising from Civil Case No. 16 of 2023) CHARLES MOSHA …..…………………….……..………… 1st APPLICANT WELU STAELI ………………………………..…………….. 2nd APPLICANT Versus SHINYANGA MUNICIPAL COUNCIL …...….….…….. 1st RESPONDENT THE ATTORNEY GENERAL …………………………….. 2nd RESPONDENT RULING 19th February & 7th March, 2024. S.M. KULITA, J. This is an application for leave to defend the suit in Civil Case No. 16 of 2023 which has been lodged before this court under the summary procedure by the Respondents herein. It has been filed under the provision of Order XXXV, Rule 3 of the Civil Procedure Code [Cap 33 RE 2019]. The said application which has been made by way of chamber summons is supported with the joint affidavit sworn by the Applicants herein. 1 The matter was argued through oral submissions. The Applicants are represented by Mr. Emmanuel Rugamila, Learned Advocate, while the Respondents are represented by the Learned State Attorneys namely, Mr. Mussa Mpogole, Mr. George Kalenda and Ms. Amina Mkuya. In his oral submission the Applicants’ Counsel, Mr. Emmanuel Rugamila, submitted that the Applicants herein intend to defend the main suit, Civil Case No. 16 of 2023. The reason behind the said prayer according to the Counsel is that, it is the Applicants’ constitutional right under Article 18(1) of the Constitution of the United Republic of Tanzania. The counsel added that, if this application will be denied, the Applicants’ constitutional right to be heard will be infringed. The Counsel further submitted that the Applicants intend to defend the matter on the ground that the outbreak of Corona Pandemic Disease in 2020 led the Applicants herein failing to repay the loan in time. It is also his submission that the Applicants have already started to settle the debt. He said that they have already paid Tsh. 1,300,000/=, thus the indebted sum is no longer Tsh. 23,337,500/= that was given to them by the Municipal. Mr. Rugamila concluded by praying for the application to be granted, and the court allow the Applicants to defend the suit, Civil Case No. 16 of 2023. 2 In the reply thereto, the Defense Counsel, Mr. Mussa Mpogole, State Attorney, submitted that the application has no legal weight, hence should be dismissed. He gave the reasons that it fails to meet the conditions prescribed under Order XXXV, Rule 3(1)(b) of the Civil Procedure Code [Cap 33 RE 2019]. He mentioned those conditions being the disclosure of facts by the applicant which are satisfactory for the court to find out that, defense for the Defendants is mandatory. He clarified the said facts being; that, there must be a triable issue in the said matter, and that there must be a Fair and Reasonable defense in the Applicant’s submission. He cited the case of CHISSELS LIMITED V. ARUSHA INTERNATIONAL CONFERENCE CENTRE AND ANOTHER, Misc. Civil Application No. 107 of 2022, HC at Arusha to cement his argument. The Counsel averred that, in the matter at hand there is no triable issue and that the Applicant’s Advocate has failed to establish the Fair and Reasonable defense that the Applicants are going to argue in the main case, if the application will be granted. The State Attorney, Mpogole challenged the Applicant’s argument that they have already settled part of the indebted sum. He said that the sum of Tsh. 1,300,000/= that is alleged to have been paid by the Applicant has no proof. 3 He added that, even if we take that being the case, still the said amount is very minimal as compared to the total sum of Tsh. 23,337,500/= which the Applicants herein are indebted. He said that, in that sense, the court cannot rely on that fact as a ground for granting the application. Mr. Mpogole further submitted that the issue of outbreak of Corona has no relevancy to the matter at hand. He stated that the said outbreak happened in 2020 while the loan to the Applicants was given in 2017, that is 3 (three) years back, and the condition was that it was to be repaid in 1 (one) year period, that is, by 2018. In topping up what Mr. Mpogole had submitted, another Counsel for the Respondent, Mr. George Kalenda, State Attorney, submitted that, if the court finds it necessary for the Applicant to defend the suit, it has to order them to furnish security as the condition for it to be granted. He added that, it is the 6th year now since the Applicants had defaulted to repay the loan which was supposed to be settled in one-year period from 2017. Hence, there is no justification for them to be granted leave to defend this summary suit as by doing so, it can lead to unnecessary delay of justice. The State Attorneys concluded by praying for the application to be dismissed for having no merit. 4 In rejoinder, the applicants’ counsel, Mr. Rugamila reiterated what he had stated in his submission in chief. I have given due regard to the submissions. In my view, the averment made in the affidavit filed in support of the application, the respondent's counter affidavit and the submissions made by both parties, point to one issue for determination, namely, whether it is proper for this court to grant the Applicants leave to appear and defend the suit, Civil Case No. 16 of 2023, filed against them which is pending before this court. The procedure under which the suit against the applicants is preferred does not accord the defendants (Applicants herein) a right to appear and defend their respective case. The Defendants appearance and defense is predicated on leave dully granted by the court. Order XXXV, Rule 2(1) of the Civil Procedure Code under which this application has been made provides; “Suits to which this Order applies shall be instituted by presenting a plaint in the usual form but endorsed "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...............” 5 The object underlying the summary procedure is to prevent unreasonable obstruction by the defendant who has no defense and to assist expeditious disposal of cases. The Procedure is meant to enable the plaintiff to obtain judgment expeditiously where the defendant has in effect no substantial defense to the suit and to prevent such a defendant from employing delaying tactics to postpone the day of reckoning. See CRDB Bank Limited V. John Kagimbo Lwambagaza [2002] TLR 117. Through this procedure the plaintiff with a liquidated claim to which no good defense exists, is facilitated to obtain a quick and summary judgment without being unnecessarily kept from what is due to him by the delaying tactics of the defendant. See Zola and Another V. Ralli Brothers Ltd and Another [1969] EA 691, 694. In this regard, the granting of leave is predicated upon the Applicant establishing that there is an arguable case between him and the Respondent. As correctly submitted by the Respondents’ Counsel, Mr. Mussa Mpogole, State Attorney, that, leave to defend should be granted where the defendant/applicant raises triable issue of fact or law or both. This was also held in Kundanlal Restaurant (supra), Tanzania Portland Cement Co. Ltd V. Continental Builders Ltd. Civil Case No. 262 of 1992 - HC at 6 DSM, (Chipeta, J.), and Tanzania Telecommunications Company Limited V. Timothy Lwoga [2002] TLR 150. Apart from the requirement of showing the presence of triable issue, the said counsel rightly added that, the applicant for leave to defend the suit has also to raise in his application that he has a fair and reasonable defense for the case that has been lodged against him. Therefore, as stated in CHISSELS LIMITED V. ARUSHA INTERNATIONAL CONFERENCE CENTRE AND ANOTHER, Misc. Civil Application No. 107 of 2022, HC at Arusha while citing for approval the case of MOHAMMED ENTERPRISES (T) LIMITED V. BIASHARA CONSUMER SERVICES LTD [2002] TLR 159 the applicability of Order XXXV, Rule 3(1)(b) of the Civil Procedure Code, basis on the conditions that the applicant for leave to defend the suit should fulfil the following; 1. Presence of triable issue. 2. Fair and reasonable defense being raised in the application. Having outlined the general principles, let me go to their applicability in the instant application. The question to be determined, therefore, is whether the applicants have demonstrated an arguable case. The Applicants herein have not pointed out in their joint affidavit nor in their submission which was made 7 through their Advocate, Mr. Emmanuel Rugamila, on the presence of arguable case between them and the respondent. The submission by Mr. Rugamila that, under Article 18(1) of the Constitution of the United Republic of Tanzania, the Applicants have the right to be heard in the main suit reflects that, if this application will be denied, the Applicants’ constitutional right to be heard will be infringed. That being the case, it means the Counsel tries to challenge the constitutionality of Order XXXV, Rule 3(1)(b) of the Civil Procedure Code which provides for the procedures on how to entertain the summary suit cases. But this is not a proper venue for presenting such argument. That should be done in the Constitutional Court, that is, High Court - Main Registry. In such applications, the Applicant is required to give reasons on the presence of triable issue in the main suit, and that, he has Fair and Reasonable Defense in it. As for this matter, among the other things, the Applicants ought to have given reasons on their debt status, whether the same has been settled in full or partly. The counsel just mentioned the amount of Tsh. 1,300,000/= being the only amount settled by the Applicants. That is a very small amount as compared to the real debt which is Tsh. 23,337,500/= which was supposed to be settled by 2018. Further to 8 that, there is no proof on the settlement of the said Tsh. 1,300,000/=, and that, the Applicants’ affidavit does not reflect the Applicants to have deposed that said fact. Generally, the court cannot rely on that issue as a ground for granting the application. In his submission the Applicants’ Counsel advanced the reasons for the Applicants’ defaulting to repay the loan being the outbreak of Corona Pandemic Disease. It is the only reason that the Applicants herein have stated in their joint affidavit. However, as correctly submitted by the State Attorney, that, by the time the said disease had broken out in 2020, the said loan which was availed to them in 2017 had 3 (three) years while the same was required to be settled in one-year period, that is, by 2018. I thus find this ground for seeking leave to defend the suit is unmeritorious. In upshot, I find this application with no merit, as the applicants have failed to meet the conditions stipulated under Order XXXV, Rule 3(1)(b) of the Civil Procedure Code, to enable it granted, hence dismissed. Costs to follow the event in the main suit. 9 S.M. KULITA JUDGE 07/03/2024 10