saleh thuwel ahmed vs tunduru district council and another 2023 tzhc 18850 12 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SONGEA

AT SONGEA MISC. CIVIL APPLICATION NO. 15 OF 2022 SALEH THUWEL AHMED.................. APPLICANT

VERSUS TUNDURU DISTRICT COUNCIL ...................... 1st RESPONDENT THE ATTORNEY GENERAL ............... ................... 2MD RESPONDENT (Arising from Civil Case No. 10 of 2022)

RULING 12th and 12th July, 2023 KISANYA, J.: On 21st September, 2022, the respondents instituted a summary suit against the applicant, Saleh Thuwel Ahmed. According to the summary plaint, the 1st respondent's claim against the applicant is for payment of TZS 65,751,666.5/= being unpaid service levy. Upon being served with the summary plaint, the applicant moved this Court to be pleased to grant him leave to appear and defend the suit His application was made under Order XXXV rule 3(l)(a) of the Civil Procedure Code, Cap 33 RE 2019 (henceforth "the CPC"). It is supported by an affidavit affirmed by the applicant on 3rd November, 2022. i Initially, the respondents had filed a joint affidavit in which they challenged the application. However, when the application was called on for hearing today, Mr. Egidy M koi we, learned State Attorney conceded to the application. He was in agreement with Mr. Optatus Japhet, learned advocate for the applicant that the application be granted. In terms of Order XXXV Rule 3 (l)(b) of the CPC, leave to defend summary suit is granted where the affidavit in support of the application discloses facts which the court deems sufficient to support the application. It is a settled position that, for the leave to defend summary suit to be granted, the court must be satisfied whether there is a triable issue of fact or law or both. [See the case of

Tanzania Telecommunications Company Limited vs. Timothy Lwoga [2002] TLR 150]. In out case, the applicant has disputed the quantum claimed by the 1st respondent. He stated on oath that, the amount of TZS 65,751,666.05/= prayed for in the summary suit is untrue and that he had already paid service levy for 2017 and 2018. That fact was disputed by the respondents thereby implying that, parties are at issue as to whether the 1st respondent is entitled to the service levy claimed in the 2 summary suit. It is my humble view that, the said issue is worth of determination in the summary suit. In the event, this application is found meritorious. Consequently, leave is hereby granted to the applicant to enter appearance and defend the summary suit. Further to this, the applicant is directed to file the written statement of defence within 21 days from the date hereof. Costs shall be determined in the main case. It is so ordered. DATED at SONGEA this 12th day of July, 2023. Ruling delivered this 12th day of July, 2023 in the presence of Mr. Optatus Japhet, learned advocate for the applicant and Mr. Egidy Mkolwe and Mr. Ibrahim Kabelwa, leaned State Attorney for the 3