SIKONGE vs Magdalena

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

TABORA SUB REGISTRY

AT TABORA CIVIL CASE N0.10327 OF 2024 SIKONGE DISTRICT COUNCIL.................................. 1st PLAINTIFF ATTORNEY GENERAL................................................2nd PLAINTIFF

VERSUS MAGDALENA PHILIMON MANGULA....................... 1st DEFENDANT DAVID S. MWAKATIMBO........................................ 2nd DEFENDANT

SUMMARY JUDGEMENT Date of Last Order: 19/06/2024 Date of Ruling: 04/07/2024 MANGO, J The Plaintiff herein filed a summary suit against the Defendants claiming for payment of Tshs 7,123,303/= being undeposited amount from revenue collected by the 1st Defendant as an agent of the 1st Plaintiff in collection of revenue which is the Defendant's obligation as required by the Local Government Finance Act [Cap. 290 R.E 2002], interest of 25% of the amount claimed, general damage and costs of the suit. It was pleaded that, on 13/05/2022 up to 13/11/2022 the 1st Plaintiff and the 1st Defendant entered into an agreement in which the 1st Defendant agreed to collect revenue on behalf of 1st Plaintiff and deposit it into the 1st Plaintiff's bank account. The 2nd Defendant is the guarantor who agreed to 1 pay the 1st Plaintiff in case 1st Defendant defaults. It follows that, on 27/12/2023 the 1st Defendant wrote a letter to the 1st Plaintiff admitting the debt and requested for extension of time to pay the said monies by installment, she proposed the mechanism and date of settling the said monies but she failed to implement her request. Copy of the letter was attached to the plaint and marked as annexure SDC 1. It was further alleged that despite the Plaintiff's efforts to obtain the outstanding amount due from the Defendants, Orally and through several written reminders, the 1st Defendant

refused and neglected to pay the outstanding amount. The copy of demand notice with reference number HWS/HWS/PF/A/194/14 of 20th February 2024 was attached to the plaint as annexure SDC 2. Immediately after the suit was filed, Court summons was issued in compliance with Order XXXV Rule 2(1) of the Civil Procedure Code, [Cap 33 R.E 2019]. Service was effected to the Defendants and on 12th June 2024 the 1st Defendant received and signed the summons. This proves that, the Defendants were effectively served and opted not to seek leave to defend the suit. Mr. Gureni Mapande, learned State Attorney representing the Plaintiffs prayed for this Court to enter a summary judgment in favor of the Plaintiff in terms of Order XXXV Rule 2(2) of the Civil Procedure Code, [Cap.33 R.E 2022] as the Defendants have decided not to lodge their application for leave to defend the suit within a statutory time of 21 days from the date of service. The law requires that where a summary suit is filed, the Defendant should not enter appearance and defend the suit until he obtains leave of 2 the Court. In the event of failure to obtain leave, the allegation contained in the plaint shall be deemed to be admitted by the Defendant and the Plaintiff shall be entitled to a decree. Order XXXV Rule 2 (2) of the Civil Procedure Code provides that: "7/7 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 the judge or magistrate as hereinafter provided so 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..." In the case at hand, the Defendants have not applied for leave to defend and the Plaintiff has proved to the satisfaction of the Court that she dully served the Defendants. In such circumstances, a summary judgement is entered in favor of the Plaintiff and it is hereby decreed that: i. The Defendants should pay the principal sums of Tshs. 7,123,303/= as undeposited amount from revenue collected by using pos. ii. The Defendants should pay interest of 25% of the amount claimed. iii. Costs of this suit be borne by the defendants Dated at Tabora this 4th day of July 2024 J Z. D. MANGO

JUDGE 3