DIAMOND TRUST BANKT LTD VS PETROSOL T LTD COMM CASE NO 33 OF 2017 RULING HON

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 33 OF 2017 DIAMOND TRUST BANK (T) LTD .................................... PLAINTIFF VERSUS PETROSOL (T) LIMITED ........................................ 1st DEFENDANT ABDUL LATIF K. SULEMAN .................................. 2nd DEFENDANT TUCKMAN MINES AND MINERALS LTD................ 3rd DEFENDANT MIOMBO ESTATES COMPANY LIMITED................ 4th DEFENDANT RULING: MRUMA, J. The Plaintiff Diamond Trust Bank (T) Ltd instituted a summary suit against four Defendants namely:- 1. Petrosol (T) Limited 2. Adbul latif Suleman 3. Tuckman Mines and Minerals Ltd and 4. Miombo Estates Company Ltd Leave to appear and defend the suit was denied to all Defendants except the 4th Defendant. Regarding the said 4th Defendant, this court found that there was an issue which was wanting. The issue which was wanting is whether or not she was served with the statutory default notice i as required by Section 125 of the Land Act. On that ground only the 4th Defendant was granted leave to appear and defend the suit. Upon such grant the 4th Defendant has filed her written statement of defence together with which she filed a notice of preliminary objection containing two points in limine litis namely:- a) That the Plaintiff's suit against the 4th Defendant is incompetent in law for failure of the Plaintiff to serve the 4th Defendant with the mandatory Default Notice as prescribed by the provisions of Section 127 (1) of the Land act Cap 113 RE 2002) as amended by Mortgage Finances (Special Provisions) Act No 17 of 2008. b) That the Plaintiff's plaint is fatally defective for failure to conform to mandatory provisions of Order 35 Rule 6 (1) (b) (i), (ii); (A), (B), (C) and (D) of the Civil Procedure Code (Cap 33, 2002) Counsel filed skeleton written arguments for and against the preliminary objections. Apparently upon being served with the reply to the 4th Defenadant's Written Statement of Defence, counel for the 4th Defendant abondoned the first preliminary objection and proceeded to argue the 3rd only, contending that the Plaintiff's plaint is fatally defective for failure to conform to the mandatory provisions of Order 35 Rule 6 (1) (b) (i); (ii) (A) (B) of the Civil Procedure Code. The learned counsel submitted that Order 35 Rule 1 (c) (i) plainlly shows that summary procedure is applicable to among other suits, suits arising out of mortgage whether legal or equitable. He said that the Plaintiff's averments under paragraph 2 (vii) of the plaint is to the effect 2 that its claim is for recovery of a money debt and not a possession suit by mortgage therefore it was ought to have brought to bring this suit under that law, and hence it is wrong and untenable in law. If is the learned counsel's submission tha the Plaintiff's summary procedure plaint shows the amount due, the date when the arrears arose and a total of the amounts due which is in partial compliance with the tenets precept or commands of the provisions of Order 35 Rule 6 (1) (b) (i) of the CPC and totally omits to show or plead the dates and amounts of all payments made and running total of arrears. The learned counsel submitted that the Plaintiff's summary procedure plaint is also deficient in not containing the particulars and elements mentioned in Order 35 Rule 6 (1) (b) (B) (C) and (D) of the Civil Procedure Code. The learned counsel cited a number of authorities both of this court and the Court of Appeal which are to the effect that the function of the pleadings is to give notice of the case to the party so that the party is aware of the case it has to meet. Submitting in reply counsel for the Plaintiff contended that preliminary objection No. 2 is without any merits. The learned counsel submitted that unlike the Defendant counsel's contention that the plaint in the present suit is for possession suit, the suit is a summary suit for recovery of a debt arising out of mortgage pursuant to Order XXXV Rule 6 (1) (b) (i), (ii) (A) (B) and (D) of the Civil Procedure Code (Cap 33 RE 2002). The learned counsel said that nowhere in the plaint did the plaintiff claim or pray for an order for possession of the mortgaged property, therefore it is not a possession suit under Order XXXV Rule 6. 3 I have carefully gone through the plaint in this suit and I tend to agree with the plaintiff's counsel that this is not a possession suit as within the ambit of Rule 6 (1) of Order XXXV, counsel for the Defendant in the presence suit the Plaintiff is claiming for Tshs 5, 455,389,635.85. It is a sum would wish this court to believe in any suit. As correctly submitted by the counsel for that Plaintiff, Order XXXV Rule 1 (i) comprises of two limbs which in effect means summary procedure may be instituted in all suits arising out of mortgages, whether legal or equitable for:- (i) Payment of monies secured by mortgage (ii) Delivery of possesion of the mortgaged property to the mortgage by the mortgagor or by any other person in or alleged to be in possession of the mortgaged property. According to the plaint in the present summary suit the Plaintiff is praying for judgment against the Defendants for payment of Tshs 5,455,389,635.85 which is the amount stated to be due and claimable by the Plaintiff. This implies that the suit is premised under Rule 1(c) (i) and (ii) of Order XXXV of the Civil Procedure Code. Thus, I find that the preliminary objection raised is devoid of merit and having been unsucessfully argued it is dismissed with costs to the Plaintiff. Order accordingly, .. A. R. Mruma, Judge 24th April, 2018 4