19990730 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANL'\. (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM ------------ CIVIL CASE 339 OF 1997 NO. GAPOIL TANZANIA LIMITED 000000000000 PLAINTIFF ve:rsus KITONGA COMFORT HOTEL LIMITED 0000000 DEFENDANT R,ULING CHIPETA,-2 Jo : In this case, the plaintiff, GAPOIL (T) LIMI'l'Ep, is suing the .defendant, KITONGA COMFORT HOTEL LIMITED for recovery ·of Shso12,963,842. The suit has been filed under Summary Procedureo This is a Ruling on an application by the defendant for leave to a,pear and defend the suit. With the permission of the Court, learned advocates of the parties filed written submissions. I have carefully perused and considered those submissions. In the first place, the defendant/applicant submitted that there is a misjoinder of parties and cause.s of action in that the Agreement (Annexture .A to !he plaint) was beh.'eer_i the plaintiff and .one Anderson Z.K. Mwanyato and nbt between the plaintiff and the defendant, ·-, and .so the defendant's name should·· be struck off. ' '·,,.... As correctly submitted by learned counsel for the plaintir~/respondent, ...,:..., the pleadings clearly show that the plaintiffi s cause of action iii' founded on the dishonoured l.J.i.lls of exchani;e. As t see it, the Agreement only 2 "Provides the background to the relationship between the parties. Besides, I note that the defend-mt has not disowned, or denied • having dra~m, the dishonoured bills of exchange. This

objection, therefore, has no merit. The second submission was that there was no statement in the plaint. tha.t consideration passed from the plaintiff to the defendant. This objection is also without merit. Paragraph 3 of the plaint clearly R.lhges that consideration passed as the ap-plicant/ defendant received petro_leum products from the re.e.-pondent/plaintiff. What is more, the applic;;i.nt does not allege lack of consideration. Thirdly, it has been submitted that the plaint is defective for failure to describe the d.efendant. I am unable to see the basis for this submissfon. · The plaint described the name of the defe'ndant and its mailing- address. I do not know what other descri]?tion the defendant wanted. It would have been a different matter if it had been alleged that there were two companies. of the defendant I s na.me of the same address. I now turn to the third objection, which was that the plaint was defective because it did not contain a statement that notice of dishonour was issued. In my view, para'graph · 6 of the µlaint sufficiently alleges that there was such noticeo This ground of complaint, therefore, is also baselesso· As I understand the law, :for an application such as the present one to succeed, the applicant must dis'close substantive triabie issues and not just a sham defence. Matters like fraud, lack of consideration, or a denial that the applicant

dre~, the dishonoured ,bills. of exchang~. (See !!!_sm';R.i Vo Banque .Du Congo, 5 E~A.C.A. 89) would be conside:red., In the instant case, the applicant Os affidavit in sup-port of the . application the applicant has raised no s1-<ch tr:..able issues. It was only in its reply to the counter affidavit that the depo~ent states. t~at the cheques were not issued by the defenda11t. To my mind, this is no more than an afterthought. '- 3 For these reasons, I· am of the view that no triable issues have been disclosed by the arplicant and such defence as has been '\ · raised is a sham defence. I 9 therefore, decline to exercise my . . in favour discretion · · of the aµ,:1licant. This application accordingly fails and so is hereby dismissed with costs. I hereby enter judgment for the plaintiff as prayed in the plaint with costs. B. D. CHIPETA

JUDGE Ruling delivered in Chambers this 30th day of July, 1999. •.' •• '. I / .,. _:. l: . \_/ .• ' {. ! :."· . B•. D. CHIPETA · JUDGE Ms. Bayona: for applicant For Respondent: Mr. Maira.