jeremia so gunga another vs sangijo rice miller company ltd 2007 tzhc 79 29 may 2007

IN THE HIGH COURT OF TANZANIA AT TABORA. DC. CIVIL APPEAL NO. 18/2006 (Being an appeal from the judgment and decree of the District Court of Kahama in Civil Case No. 111/2005) 1. JEREMIA s/o GUNDA 2. MHONGOLO PROGRESSIVE APPELLANTS

SECONDARY SCHOOL Versus

SANGIJO RICE MILLERS COMPANY LIMITED........ ................................ RESPONDENT

JUDGMENT 5th Dec.06 & 29th May, 07 MZIRAY, J. In the District Court of Kahama, the respondent filed a plaint against the appellants of summary procedure under order XXXV of the Civil Procedure Code, 1966 for recovery of a debt in the sum of Shs. 44,000,000/=, interest and costs arising from agreements executed by the parties where upon the appellants obtained two loans which they failed to repay on the agreed time. Upon being served tlje appellants filed application asking for leave to defend the suit. l The matter was then adjourned on some occasions and on 28/7/2006 when the case came for mention Mr. Kayaga, learned Counsel for the respondent informed the court that the appellants paid Shs.5,000,000/= on 24/7/2006. The assertion was confirmed by the first appellant ho was present in court. Mr. Kayaga considered that the debt is admitted hence he applied for judgment under the provisions of order X I 1 rule 4 read together with order XXXV rule 2(2) of the Civil Procedure Code. His application was granted and on 31/7/2006 the trial court pronounced judgment in favour of the respondent as prayed. The appellants have been aggrieved by the decision of the trial Court. Using the services of Mr. Kabuguzi, learned Counsel, the appellants have presented seven grounds of appeal. In a nutshell, the appellants are arguing that it was a misdirection for the trial Court to proceed with the

case on 28/7/2006 when it was a mention date. They are further arguing that it was not proper to proceed with the main suit without first hearing the application for leave to defend the suit, i I In opposing to thie appeal, it is argue vehemently by Mr. Kayaga that there is no tight of appeal in situation where judgment has been entered by admission. His second submission is that the 2 appellants paid Shs. 5,000,000/= before the suit was heard and subsequent to the judgment entered, they paid another Shs. 5,000,000/= which by all necessary implications should be considered that they admitted the claim. According to him it was justifiable for the trial Court to proceed with the suit summarily and it does not matter whether it was a mention or hearing date. Whether it was an irregularity to proceed with the suit in a mention date. This is the first issue to determine. Normally, mention date is fixed by the court for orders hence it is purely an administrative exercise which will not enable the court to proceed with the hearing of the case. If for instance the court opt to proceed with the hearing of a case on a date set for mention then that hearing will not be fair and definitely will prejudice the other party. This is what happened in this case. The appellants must have been prejudiced by the hearing. It affected them much because the hearing proceeded in the absence of their

Counsel without notice. The trial Court in its decision allege that it proceeded with the matter in terms of order X I 1 rule 4 and order XXXV rule 2(2) because the appellant had admitted the claim. With respect, there is nothing in the record to suggest that the appellants had admitted 3 the claim. What is apparent from the record is that the appellants had started paying the debt but this cannot be taken in the legal sense that they had admitted the whole claim. Had they admitted the claim, they would not have filed an application for leave to defend the suit. The provisions of order XXXV rule 2 (2) also cannot be applicable in the situation at hand. The above order deals with situation where the defendant default to ask for leave to defend the suit, which is not the case in the present suit, as leave was already sought. Another thing to note is that the trial court faulted the procedure in hearing the main suit first while there was an application still pending. The allegation that the appellants had abandoned the application for leave to defend the suit is unfounded as the record does not suggest so. Mr. Kayaga, has submitted in this case that there is no right of appeal in a case where judgment has been by admission. As pointed earlier, the appellants had not admitted the claim hence the judgement by admission entered by the trial court was erroneous. For that reason the appellants had the right of appeal to this Court. i In total the decision! of the trial Court cannot be allowed to stand. Accordingly it is quashed. I order for retrial de novo before 4 another Magistrate of competent jurisdiction. Appeal allowed with costs. R.E.S. ^

JUDGE 29/5/2007 Right of appeal explained. :.E.S. IMZIRA

JUDGE 29/5/2007 5