JUDITH MBWILE VS FMBE BANK LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 83 OF 2014 (Arising from Commercial Case No. 27 of 2014) JUDITH MBWILE JACKSON ERNEST MBWILE I ................................ APPLICANTS VERSUS FBME BANK LIMITED................................................ RESPONDENT 28th May & 29th June, 2015 RULING MWAMBEGELE, J.: In an amended plaint filed in this court on 11.12.2014, FBME Bank Limited; the respondent, filed Commercial Case No. 27 of 2014 under summary procedure against Judith Mbwile and Jackson Ernest Mbwile; the applicants claiming for payment of Tshs. 637,661,140/23, in the alternative; on order for sale of the mortgaged property, costs of the suit and any other relief the court shall deem fit to grant. The applicants are applying to this court for leave to defend the summary suit filed. They have preferred this application under the provisions of Order XXXV rule 3 (1) of the Civil Procedure Rules; the first schedule to, made under the provisions of section 80 of, the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. The application was argued before me on 28.05.2015. At the hearing, Mr. Kakamba appeared for the applicants and Mr. Ndazi, learned advocate, appeared for the respondent bank. The oral hearing was preceded by skeleton written argument arguments filed by the parties within three working days before the hearing as dictated by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. The applicants are very brief in their joint affidavit, the skeleton arguments as well as in the submissions before me at the hearing. They state that they did not default in the repayment of the loan facility because the respondent prevented them from making deposits in the Bank. On this premise, they state that there is a triable issue in the case which warrants this court to allow them defend the suit. They cite Tanzania Telecommunications Company Limited Vs Timothy Lwoga [2002] TLR 150 to reinforce the point that a defendant is entitled to leave to appear and defend a summary suit if it is shown that there is a triable issue in the case. The respondent, in its counter affidavit and skeleton written arguments as well as in the submissions at the hearing, rebut that the applicants have admitted at paras 3 and 4 of the affidavit in support of the application to failure to repay the loan because of their financial positions to the extent that they sought help to their children. In the circumstances, the respondent submits, the allegation that the respondent bank was contributory to the non­ repayment of the loan money is but untrue. The respondent submits further that the applicants were given opportunity to repay the loan as evident in annexture FBME 5 through to annexture FBME 11 of the plaint, to no avail. 2 The respondent prays that the application should be dismissed or, alternatively, the applicants be given limited leave to defend the suit. In a short rejoinder, the applicants' counsel stated that the fact that the first defendant was withdrawn from the suit needs to be addressed in the suit. He added that this will not be the first time to allow a defendant to appear and defend a suit. He cited no authority to buttress this proposition. I have subjected the rival arguments of both learned counsel for the parties to sufficient scrutiny. As was held by my brother at the Bench Nyangarika, J. in Mwanauta & Company Hunting Safaris (T) Limited & 2 others Vs National Bank of Commerce, Commercial Case No. 3 of 2014 (unreported), in applications of this nature, the court is not required to involve itself in lengthy arguments but, rather, to look upon the affidavit filed in support of the application to see whether the deposed facts have demonstrated a triable issue fit to go to trial before a final decision can be reached. The applicant is only required to show a fair and reasonable defence. I am alive to the provisions of the Mortgage Financing (Special Provisions) Act, 2008 which amended the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. The amendment was in respect of rule 3 of Order XXXV by adding after paragraph (b) of sub-rule (1) the following paragraph: "(c) in suits arising out of mortgages, where the mortgagor demonstrate^] that- (i) loan or the portion of the loan claimed is indeed discharged; or (ii) loan was actually not taken". 3 In the case at hand, the applicants aver that the respondent bank did not want them to make deposits in the bank account to repay the loan. I think this is sufficient ground to allow the applicants defend the suit and the point, it seems to me, falls within the scope and purview of the provisions of the Mortgage Financing Act, 2008 quoted above. In the premises, I am of the considered view that the applicants have demonstrated sufficient reasons to the satisfaction of the court that they are entitled to defend this summary suit. I would allow this application. In the upshot, this application is allowed. The applicants are granted unconditional leave to appear and defend the suit. They are to file their written statement of defence to the respondent's plaint within twenty-one days from the date of this ruling. Costs shall be in the cause. Order accordingly. DATED at DAR ES SALAAM this 29th day of June, 2015. J. C. M. MWAMBEGELE JUDGE 4