19880315 TZHC Dar es Salaam

I. ( IN Tlili HIGH COURT OF TANZ.11.NIA ~l.J.i-1.1< i;S S1-1.L1-u-1.M ClVIL c~~B NOo 65 OF 1986 T AN'.i.ANlii 'r 1<.1-.CTvHB M1-1NUF ACTUi<ING LTl.J •••••• PLAINTIFF versus '.I:'AI\~h.fliIA COLT MCJTORS LIMITED •••••••••• ~ a DEFENDANT. R UL I NG tiAHA.TI, J1 This is an application for leave to appear and defend the suit which has been filed under Order 35 of the Civil ~rocedure Code. In support . of the applicat.ion the applica~t averred in his affidavit that he had instructed the respondent not to cash the cheque until after some time. The applicant stated that he was milling to pay the amount on the cheque and that he was prE,ying to be given leave to appear and defend the suit. In reply Mr • .i:{utagatilta for the respondent submitted that the application should be dis11issed as it revealed no triable issues. He also submitted that th affidavit supporting the application was incurably defective becaute it did n9t specify in the verification which facts were true ace <•rding to the knowledge of the deponant and which were true accordinf to his belief.or information. He ciued some authorities in support of his argument. I agree with Mr. rtutn;;atina that the affidavit is incurably defe- ctive and that it should :)e rejected. The cases of Kuback and Sayboo}(-. . :1.• Ltd. v. Hasham Kassam a~j Bons Ltdo (i972) HCLJ 228, and NBC. V. Manubhai s. 1Jesai (1969) HCu 206 cited by Nr. l<utagatina are relev~~t here. I therefore rejer··.: the affidavit whic.h is incurably defective ;in •·- that it does not state w·:iich facts are true .according to the deponant's knowledge and which are 1-;rue according to his belief and information. This leave.as no applicatton before the court because there is only a~ , chamber summons. beoon{i 1 -,,-t this application cannot be allowed even;),:f th~ :-;ffidavit was not r,: jected because it does not state any triabH(: · issue. The applic~nt hc-1s, in other words, no prima facie defence .to the suito The facts de)osed in the affid 8 vit do not make it incumbent iHl the respondent to prove consideration. Indeed the applicant admits the claim and is ready to pay the money. It is not clea~, therefore, why t·he appl 1.-:~ant is praying for leave to defend the suit. Leave.. cannot be grantee. in such circum~tances as the present. In terms of Order 3,'; rule 2 (2) (a) the defendant is deemed to admit_ the allegati9ns i·, the plain~. Judgment is theref,ore entered .• ,,./2. - 2 - - for the plaintiff as prayed with interest and costs as prayed in the plaint. Court: - Ruling delivered in presence of Mr • .rtutagatina but in absence of Mr. Hutashobya who had notice of the delivery of the ruling for today. -- . . -•---··-=--··· -~ -- ---------.... '-. ~7"?".,;::::______ ~ ~""'-~-<--'<; a-. BAHATI JUl.iGE iJA.H ~ SALAAM 15th March, 1988.