200005NA TZHC Dar es Salaam

, . IN 'r:-IB HIG2 COlFl.1:!' OF TANZANIA ... AT DAR ES SALAAM CI VIL CASE NO. 4/ 1998 C.R.D.Bo(1996) LTD ••••••••••••••••• PLAINTIFF-

VBRSUS -iAKIM D• JETHA

I

R U L I N G Application for leave to appear and defen<.i. the sui +,. KATITI r _- Jg _ C.R.D.B. (1996) Ltd.· hence to be called the plaintiff, has ' :·:·.......i'~~ :tfr"SUmmary su~t y - U11der,-~R~~-R. r,.zxv. of tire, Civil Froe2dure ~ - ~ f 1965 hereafter,·to be called''''the Code; if' n~ed be·, against · one ·HAKU'L D. JETH!~," hereafter to· be cailed th~ defendant. '- ·uperi the defendant being served thE: relevant summons, and thereby being inf•rmeds that unless l1e ottains the Courts leave, via an application to defend the suit, the Judgment may be given against him, the defendant did, accord.in·g1y 1 do so, by filing chamber - ,. summons supported by affidavit denying indebtedness of any cent, nor issuing _any promisory note or Cheque, nor mortgaged a.,.~y property to the plaintiff. The Coun~er a.ffi.davi t, attracted r_·_ thereby, insisted that the defendant, bore the liability to pay the d~manded amoU11t ._ f ~ ; Cans1;.n~u~~3:y agreed, that the. application be defended and \. .Ji&.ed by 'tvay of written submisaj,s:u;is, the applicant was to file" , · h:M ·on 15/12/99, which he did, but the plaintiffs who were supposed . . to file· theirs on the 29/'12/99, did not, or never bothe:red at all to do. so. All the same, I shall proceed to consider the application, Without hindra.nce or let, though negretabl"y, I have missed the. adv9ritage of the plaintiffs contribution,

on this aspect, for I thought that they, having initiated the proceedings for an espoced couse, they woula. sho all the initiatives, in pursuit-of the same. This is an application by the defenda.~ts., for leave t8 . defen~ the suit filed against them. I have dutifully read, ORDER XXXV, pleadings, and the only submissions available. • 2 . ii I note, with respect that, the rules under the ·or-m:.SR ,are so rigorous, that, uI1less the Court I s leave is obtained, the defendant is not entitled to defend the suit,or to appear in the sit~ It is there- fore pertinent and prompting, to put into inquiry as to what would be the guidelines, for the Court to grant, or refuse leave. It is my considered view that some of the principles, to b~ followed by the Court, while grari.-ting, or refusing J.ea·,e, are as follows: - (i) Where, the defendant in his affidavit discloses hi.s defence~ which appears to the Crn1rt, to be a good defence, the defend?.-Pt should be given unconditional leave. For example, :Ln a summary suit 1 for r:ec·.:-very of mone·y on promisary note, when the defendants seeks leave to defend, on the ground that the promisary not is a forgery, and 1.-vi thout consideration, leave should be granted, (ii) I.f the defendant, in his affidavit di~closes a triable issue, i.e. a plea which is at least lodgeabJ_e, and which indicates, that it has a fair and bonafide defence, the

defendant, is entitled to get leave to defend. (iii)If the affi~avit of the defendant discloses, such facts as may be deemed sufficient to enable him, to defenda, which meanss that although the affidavit does not disclose positive defence, yet it shows such a state of facts, as leads to the inference, that the defendant may be able to establish the defence to the plaintiffs claim, at the time of trial, the Court, is within its powers to _impose condi tj_ons upon him, but grant leave. With, respect, without the slightest prE!tension at the above being exhaustive, I shall now apply the above to the case at hand, bearing in mind; that the defendant has denied liability. Moving from a trite premise, it is c:~ear in our minds,· tha.t the option lies on the plaintiff to sue, either under ordinary procedure, if legally opent or under summary prosedure. But, with respect, .. 3 • i,Jhetever options he takes, he must be· sure of the identity of the party, he/she, intends to prosecute. In this·case according to the plaint HAKIM •. J?. <[ZTP...A is sued, as the defendant, but the attached .or annexed corresponden~ES, talk of H.D. · ~~L"½..J_,Tl)flJIRJI AND CO. LTD. or refer to, H.D. JE;THA LTD, an~ if H.D. JETH.A is the same as tne plaintiff, butletter dated 24/2/94, the defendants, had sold his ' ' shares to other directors, so that even if he had been a director of a company, he could

not have been sued personally as he would have been acting of a agent of the company, which should have been sued, in its corporate capacity. But which Company, there is no mention, and when ·was the loan advanced is not stated. It may well be that HAKIM D. JETHJ-i., is unconnected, but for the coincidence of names. Which party., did the plaintiff intend to sue? More ans-wers than one are attracted which is disturbing. It is indeed curious .• ( ~;<I had, for conve:1ience assumed, that 0:1DER-XXXY of the Code, is ' -· . 1.. 'apj:licable to 'the circumstance, of the plaintiffs case. I shall now consider its applicability. The said ORDER says:- ( 1) This OFl.DSR shall apply to (a) Suits upon bills of ExchMge (including cheques), or prornisary notes. (b) Suits for recovery of income tax (c) Suits arising out of mortgage, whether legal, or equitable for (i) Payment of moneys secured by mortgage ( ii) • C • 0° ♦ 0 • not applicable • C • o o • C O • o o O e .• .,- ( iii)'Q O O ~ • 6 e not applicable O O o e (' 4 0 O • e O O O. ~- (iv) ~ 0 o ~ e not applicable ft O • • 0 0 0 C o • G • ~ ~ e ( v)000CV0fl not applicable ♦ 000et,OO·••o••G ( d)• • ~ • o a • O • not applicable o o o • o - 0 • o O Q O ( e)• e 0 e O e O • e • e not applicable O O • • 0 • 0 0 O 0 ( f)• 0 o • a • ( e 0 e 0 not applicable C O O O ~ ~ G • • • • 4 0 Upon critical examination of the plaint~ in particular para

3.0 -· the plaintiff is claiming against the defendant·, a sum total of Shs. 26,591,113.,20, being the amound due in respect of a loan advanced by the plaintiffs to the defendant .. With respect, even· microscopically I cannot see ,v11ere, a loan by the Ban.k, unoccumpanied by mortgage d•2ed, or bounced cheques, is covered by this 08.DE:1. The claim is not covered, and it :_:is therefore incompetently before this Courto Consequently, it ts struck out for incompetence, with costs. Delivered this day of May 2000.

JUDGE