GMP 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 19631 OF 2024 (Originating from Civil Case No. 3893 of 2024 before this Court) BETWEEN GMP ASSOCIATION OWNER OF GENIUS KING SCHOOL ........... APPLICANT VERSUS BAGAMOYO DisTRicr COUNCIL .................................... 1gF RESPONDENT ATrORNEY GENERAL ..................................................... 2ND RESPONDENT RULING Date of Last Order: 15.11.2024 Date of Ruling: 10.12.2024 NGUNYALE, J. By way of chamber summons supported by an affidavit, the applicant preferred the present application under Order XXXV Rule 2(1) and 3 (1) (b) of the Civil Procedure Code [Cap 33 R.E 2019] herein after to be referred to as the 'CPC' seeking the following orders: 1. That this honourable court be pleased to grant the applicant leave to defend Civil Case No. 3893 of 2024 2. Any other orders this honourable court may deem fit to grant. The applicant application was supported by the affidavit of her Principal Officer and it was not opposed by way of counter affidavit by the respondents. In the affidavit he deponed that the applicant is a defendant in Civil Case No. 3893 of 2024 which was filed by the respondent as a summary suit under Order XXXV of the CPC of which the law does not give an automatic right to the applicant to enter defence unless allowed by this court through application of this nature. Tbe applicant is the owner of Genious Kings Secondary School, she is capable of suing and being sued on behalf of Genius Kings Secondary School. The respondent claims from the applicant a total sum of Tshs 4,524,301.46 being an outstanding service levy of the financial year 2020/2021 and 2022/2023. He went on stating that by virtue of the law, the applicant is exempted from paying the said service levy and they informed accordingly the respondent. The matter was called for hearing on 15th November, 2024 whereby the applicant appeared represented by Mr. Gracian Mali learned Counsel. The respondents did not show appearance without notice, the court ordered the application to proceed in their absence because they were aware that, the case was scheduled for hearing but they could not show appearance. Mr. Mali submitted in support of the application that they should be granted leave to defend Civil Case No. 3899 of 2024 which was filed in a form of summary suit because the claim of service levy levelled against the applicant is not proper. The applicant’s operations have been exempted from paying such service levy. Ttle same is under the Local Government Finance Act Cap 290 R.E 2019 in Section 22 which exempt certain institutions from paying such kind of levy. Tbey prayed this application to be granted because they have a triable issue that the applicant as an education institution is exempted from paying the same. TIle applicant Counsel referred the court to the case of Roko Investment Company Limited versus Tanesco, Civil Appeal No. 327 of 2019 where the Court of Appeal of Tanzania stated that in order for the defendant to be allowed to appear and enter defence in summary suit, he is required to show that there is a triable issue. The applicant believes that he has a triable issue. In my determination of this matter, the starting point is whether the applicant has established a triable issue against a summary suit for her to be given leave to defend. The applicant has stated that the claim levelled against her by the respondent in a summary suit is illegal because the law exempts them from paying the same. In the present case I think the applicant has a substantial arguable legal issue. Tbe fact that she has a triable or arguable issue means the respondents’ summary suit cannot not be left to be considered unopposed. The purpose of summary suit procedure is to expediate payment if there is no defence which is not in the respondent case. In the case of CRDB Bank Limited Vs John Kagimbo Lwambagaza [2002] TLR 117 it was stated that the purpose of "Order XXXV: Summary Procedure" is to enable a plaintiff to obtain judgment expeditiously where the defendant has in effect no substantial defence to the suit. In this case I am satisfied that the applicant deserves leave to defend the suit based on his legal assertion that she is exempted from paying such kind of levy. Consequently, I am satisfied that a triable issue has been disclosed by the applicant in her application for leave to defend, and the applicant should be given leave to defend. The applicant is granted leave to defend Civil Case No. 3893 of 2024, no order to costs. Dated at Dar es Salaam 10th day of Deceml 2024 D. P. Ngunyale JUDGE 4 Ruling delivered this 10th day of December, 2024 in presence of Ms. Magdalena Mwakabungu Senior State Attorney for the respondents. JUDGE