20010628 TZHC Mwanza

.... \, lN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 341 OF 1999 TANZANIA SARUJI CORPORATION .'......... PLAINITIFF Versus ... AZANJA INVESTMENTS AND ) MANAGEMENT SERVICES ) .............. DEFENDANTS LIMITED@ AIMS GROUP ) RULlNG CHIPETA, J.: The plaintiff Corporation, namely, Tanzania Saruji Corporation, is suing the defendant, namely, Azania Investments and Management Services Limited @ AIMS, under Summai:y Procedure for arrears of rent amounting to U.S.D. 25,000.00 and mesne profits at the rate of U.S.D. , .· st 1,000.00 per month from 1 September, 1998 to date of vacant possession. This is an application for leave to appear and defend the suit. In an affidavit of one Jeetu Patel in supp01t of the application, the deponent has stated that the defendant company does not deny that rent is due to the respondent/plaintiff but that the defendant company has a counter- claim against the plaintiff. He did not elaborate. During the . hearing of this application, Ms. H. Sheikh, learned advocate for the applicant, submitted that there is a counter-claim and so leave should be granted as the parties could benefit from mediation and so avoid the filing of another suit. Mr. Maira, learned counsel for the respondent submitted, in effect, ·:· .; that the application had no merits as no triable issues have been disclosed. \ I It is, I think, well settled that for an application of this kind to succeed, the applicant must show, by evidence, ]hat there are bona fide triable issues. It will not succeed if the defence ~{h up is illusory or sham. (See Thseen Stahlunion Export v. Kibo Wire hidustries, (1973) LRT n. 54; and Zola v. Ralli, (1969) E.A. 691). The applicant is required to state clearly and concisely what the defence is and the facts on which that defence is based. (See Paclantic v. Moscow Narodny Bank Limited; (1983) 1 WLR 1063. In other words, the duty is cast on the defendant to show clearly that he should have leave to defend the suit. It follows, therefore, that a mere . allegation, such as "lack of consideration", "counter-claim" or "fraud" will not suffice. A party who is entitled to a liquidated sum in the case of a clear admission by the other party is entitled to summary judgment on the basis of a dishonoured promissory note. The rationale of Order 35 of the Civil Procedure Code, I think, was succinctly stated in Zola's case (supra) in which Sir Charles Newbold, P. stated 1 at page 694: "Order 35 is intended to enable a plaintiff with a liquidated claim, to which there is clearly no . defence, to obtain a quick and summary judgment without _being unnecessarily kept frt>m what is due to him by deiaying tactics of the defendant". ·' In the instant case, the applicant/defendant clearly achnits the debt in the affidavit in support of the applic~ion. The alleged counter-claim has not been particularized. In other words, there are no facts ·on which the same is . based. So it remains as a mere aUegation whi_ch a party can make at his whim. In such a case, it would be unreasonable to hold that a bona fide ·'I triable issue has been disclosed. I feel fmtified in tliis view by the words -of Lord Blackburn in the case of Wallingforud v. Mutual Society, (1880} 5 ., A.C. 685 at page 704 in which he said: "I think that wli~Q affidavits are ~rought forward to raise :a defence they must, if I may use the expression,' condescend upon particulars. It is no enough to swear, "1 say 1 owe the man nothing ... " But that is not enough. You must satisfy the judge that there is reasonable ground for saying. So again, 2 • if you swear that there was fraud, that will not do. It is difficult to define it, but you must give .. such an extent of definite facts pointing to the fraud as to satisfy .the ju·~ge that those are facts which make it reasonable that you should be allowed to raise that defence. And in like manner to illegality, and every other defence that might be mentioned." For these reasons, I hold that the applicant'. on whom the duty lay, has failed to disclose a prima 'facie triable issue, and so this application fails and is hereby dismissed with costs. I accordingly enter judgment for the plaintiff as claimed in the plaint. JUDGE 28/6/2001 Coram: F.S.K. Mutungi, DR For the Plaintiff: Maira For the Defendant: Absent CC: Maurice Court: ",•. Ruling read this 28/6/2001 in Co,urt in the presep_ce of Mr. Maira for the plaintiff but in the absence of M/s H. SJieikh though duly served to appear. . i. . .... Read by F.S.K. Mutung1, DR. \~ · (Sgd): F. S. K. MUTUNGI ,. DISTRl~T•~EGlSTRAR . 28/6/2001 ''L_ 'I•, r,, ,',,J1,'. ·3 ;){{':;:. ·,.