romanus b ndimbo vs tarimo mzee wa ukweli 2007 tzhc 367 13 september 2007

IN THE HIGH COURT OF TANZANIA

AT SONGEA (DC) CIVIL APPEAL NO. 6 OF 2006

SONGEA RESIDENT MAGISTRATE COURT CIV.N0.22/2005 ROMANUS B. N D IM B O .................APPELLANT VERSUS: TARIMO MZEE WA U K W E L I.... RESPONDENT 6/9/2007 - Hearing Concluded 13/9/2007 - Judgm ent Delivered

JUDGMENT L.M .K.UZIA, J. This is an appeal against the decision of the Songea District Court (Mhelela RM). There is only one ground of appeal that, is trial Magistrate erred in law and fact in determining the application in favour of the respondent after finding that his fellow trial Magistrate (Kitusi RM) improperly dismissed the appellant application while the case was called for mention. In short the plaintiff entered into contract with the respondent, that way back 2004, plaintiff motor vehicle was hired by the defendant. That having completed the works, the defendant paid the plaintiff as charge worth shs. 4,000,000/= upon presentation of the said charge at Songea CRDB Branch on 4til/3/2005 for encashment it was endorsed on the front Refer to drawer which meant there was no funds available. The plaintiff file a summary suit under order XXXV rule I. The defendant filed an application in court to defend his suit, however on the hearing of the application the defendant did not appear in court then (Kitusi RM) dismissed the application. also went further to rule in favour the plaintiff, the Magistrate since the application for leave to defend has been dismissed and this being dismissed, and this being a summary suit based on a promissory not executed by the defendant in favour of the plaintiff, judgment is thus entered in favour of the plaintiff for the amount in the

promissory note as prayed plus interest and costs. The defendant decided to file in cross chamber application under order IX rule 13 (1) & 14, order XXI rule 24 (1) and section 95 of the CPC 1966 - that Honourable Court be pleased to set aside expert judgment. The District Court dismissed the application. He now appeals to this Court. In this appeal tere is no doubt that the matter was under summary suit the law as clear Order XXXV rule 2. Suits to which this Order applies shall be instituted by presenting a plaint in the usual form but endorsed order XXV summary procedure and the summons shall inform the defendant may unless he obtaining leave from the court to defend the suit, a decision may be given against him and shall also inform him of the manner in which application may be made for leave to defend, is reproduced as follows:- “(2) in any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the said unless he obtains leave from the Judge or magistrate as hereinafter provi­ ded so to appear and defend, and in default o f his obtaining such leave or o f his W&ive^cc c appearance and defend in pursuance Going by the trial court record, it is true that the defendant did not appear in the day his application was called from hearing. I am in agreement with the trial magistrate that under Order XXXV rule 2 the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled. For the stated reason, I dismiss the appeal and order that the respondent pay the decretal amount with costs of this appeal order accordingly. JUDGE. 13/9/2007.