COMM BANK OF AFRICA T LTD VS NAM ENTRPRISED LTD COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 98 OF 2015 COMMERCIAL BANK OF AFRICA (TANZANIA) LIMITED.........................................PLAINTIFF VERSUS NAM ENTERPRISED LIMITED ELIAS LUKUMAY I.................................... DEFENDANTS STEPHEN CORDUNILUKUMAY 23rd & 24th May, 2015 SUMMARY JUDGMENT MWAMBEGELE, J.: This is a summary judgment. Yesterday; 23.05.2015, I delivered a ruling in Miscellaneous Commercial Cause No. 258 of 2015 striking out an application filed by the Defendants herein in which they were seeking leave to defend this suit. Consequent upon that, Mr. Nyika, learned counsel for the plaintiff herein prayed the court to enter a summary judgment under the provisions of Order XXXV rule 2 (2) (a) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. This is the summary judgment prayed for. The Plaintiff has prayed in the plaint for: 1 1. Payment by the Defendants jointly and severally of the sum of Tanzania Shillings Eighty Nine Million Nine Hundred Eighty Seven Thousand Three Hundred Seventeen Cents Thirty Four (Tshs. 89,987,317.34) and United States Dollars Three Hundred Seventy Three Thousand Five Hundred Ninety Four Cents Ninety Nine (USD 373,594.99) only being the outstanding amount as of April 24, 2015; 2. Interest on the sum at (a) above at the rate of 23% on the TZS account and 9% on the USD account per annum from April 24, 2015 to the date of judgment; and 3. Interest on the decretal amount at the court's rate of 7% from the date of judgment up to the date of payment; In the event of failure by the Defendants to pay the amount at (a) and (b) above, the Plaintiff has made the following prayers which seem to have been made in the alternative: 4. Appointment of Mr. Gaspar Nyika Advocate as Receiver Manager with powers to sell the mortgaged property located on Plot No. 14 Block 17, Mlimwa West Area Dodoma Municipality with CT No. 2110 DLR, LO No. 57041 in the name of Elias Lukumay; 5. An order for sale of the property located on plot No. 2 and 4 Block "D" Rufiji Road, Chinangali East, Dodoma Municipality with CT No. 8008 DLR LO No. 51471 registered in the name Stephen Korduni Lukumay; 6. An order against the 2nd and 3rd Defendants to provide vacant possession over the properties located on Plot No. 14 Block 17, Mlimwa West Area Dodoma Municipality with CT No. 2110 DLR, LO No. 57041 in the name of Elias Lukumay and on plot No. 2 and 4 2 Block "D" Rufiji Road, Chinangali East, Dodoma Municipality with CT No. 8008 DRL LO No. 51471 registered in the name of Stephen Korduni Lukumay. The plaintiff has made the following additional prayers: 7. Costs of the suit; and 8. Any other relief which this Honourable Court may deem just to grand in favour of the Plaintiff. The Defendants' application to defend the summary suit having been struck out, the Plaintiff, in terms of Order XXXV rule 2 (2) (a) of the CPC, is entitled to judgment as prayed for in the plaint - see: CRDB Bank Limited Vs John Kagimbo Lwambagaza [2002] TLR 117. Accordingly, in terms of Order XXXV rule 2 (2) (a) of the CPC, I enter judgment for the Plaintiff and, in terms of rule 67 (3) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012, proceed to decree as follows: 1. ' The Defendants shall, jointly and severally, pay the plaintiff the sum of Tanzania Shillings Eighty Nine Million Nine Hundred Eighty Seven Thousand Three Hundred Seventeen Cents Thirty Four (Tshs. 89,987,317.34) and United States Dollars Three Hundred Seventy Three Thousand Five Hundred Ninety Four Cents Ninety Nine (USD 373,594.99) only being the outstanding amount as of April 24, 2015; 2. The Defendants shall, jointly and severally, pay the plaintiff interest on the sum at (a) above at the rate of 23% on the Tanzanian Shillings account and 9% on the United States Dollars account per annum from April 24, 2015 to the date of judgment; 3 3. The Defendants shall, jointly and severally, pay the plaintiff interest on the decretal amount at the court's rate of 7% from the date of judgment up to the date of payment; and 4. The Defendants shall, jointly and severally, pay the plaintiff costs of the suit. For the avoidance of doubt, I have omitted the prayers which were made in the alternative. Order accordingly DATED at DAR ES SALAAM this 24th day of May, 2015. J. C. M. MWAMBEGELE JUDGE 4