NJOMBE FILING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 18674 OF 2024 NJOMBB FILING SSTTION COMPPNN LIMITED..... .................. PLAINTIFF VERSUS BIN SAAD LTD............................................................................DEFENDANT RULING OF THE COURT Date of last order: 11/3/2025 Date of delivery:21/3/2025 KADILU, J This is a summary suit instituted under order XXXV of the CPC involving the bills of exchange namely, cheques as stipulated under order XXXV, Rule 1(a) of the CPC, [Cap. 33 R.E. 2019]. For the defendant to get the right to an audience, she was required to apply for leave to appear and defend the suit within 21 days from the date of service. Notwithstanding, the defendant failed to apply for the said leave until when the case was called on for necessary orders on 11/03/2025. The Advocate for the defendant informed the court that he did not file leave within the stated time because the plaintiff requested the settlement out of the court. i Therefore, the learned Advocate, Mr. Mwita Waisaka prayed for the court to grant him an extension of time within which he could apply for leave to defend after the negotiations had failed. The prayer was vigorously objected to by Mr. Atlay Thawe, Advocate for the plaintiff. He argued that the defendant was duly served on 08/10/2024 but the learned Advocate did not bother to apply for leave to defend as indicated in the summons. According to Mr. Atlay, the defendant had not shown a good cause for delaying in applying for leave. For that reason, the learned Counsel for the plaintiff prayed for this court to issue a summary judgment and grant the plaintiff all the reliefs sought in the plaint. I have duly considered the submissions by the Advocates for both parties and the provisions of the law governing summary suits. It is undisputed that the plaintiff's claim is based on dishonoured cheques, which are the bills of exchange under Order XXXV, Rule (1) (a) of the CPC hence, a summary suit. Further, there is no record indicating that the defendant had sought and obtained leave of the court to appear and defend the suit. For the court to grant him an extension of time, the Advocate for the defendant was expected to account for each day of delay and give reasonable and sufficient reasons for the delay. A mere assertion that he 2 was busy trying to settle the dispute out of court is not sufficient ground for the court to grant him an extension of time. He did not show how an attempt to settle the dispute out of court prevented him from applying for leave to defend within 21 days from 08/10/2024 when the defendant was served. In the circumstances, this court finds that the defendant had not shown a good cause for the delay for this court to grant her an extension of time to apply for leave. Nevertheless, although the Advocate for the defendant did not dispute the assertation that the defendant was duly served, the record (e- CMS) is silent about the alleged service to the defendant. The law is clear that for the plaintiff's allegations in the plaint to be deemed admitted, he or she should prove that the defendant was duly served. That could be done by uploading a proof of service on the e-CMS. It could also assist the court in ascertaining the plaintiff's claim as indicated on the summons. Order XXXV, Rule 2 (2) (a) of the CPC provides as follows: "In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from thejudge or magistrate to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiffshall be entitled to the sum mentioned in thesummons, together with 3 interest at the rate specified (if"any) and such sum for costs as may be prescribed..." From the above provision, it is evident that apart from serving as proof of service, the plaint and summons are the basis for the court to determine the plaintiff's claim that was brought to the attention of the defendant. It is through the summons and the amount indicated thereon that the defendant decides whether or not to apply for leave to defend. In the case at hand, the Advocate for the plaintiff only alleged that the defendant was duly served without attaching any proof. As the court is required to grant the plaintiff the amount claimed in the plaint and summons, where a copy of the summons served to the defendant is missing, the court lacks the basis for granting the plaintiff's reliefs. In the circumstances, the objection raised by the Advocate for the plaintiff is overruled. The court grants the defendant an extension of time to apply for leave to defend within 21 days from the date of this ruling. ordered. JUDGE 21/03/2025 4 Ruling delivered in chamber on the 21st day of March, 2025 in the presence of Mr. Atlay Thawe, Advocate for the plaintiff, and Mr. Mwita 5