20010628 TZHC Dar es Salaam

C" • IN 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 ' l" . / ..} t t ·!, AZANIA INVESTMENTS AND ) MANAGEMENT SERVICES ) DEFENDANTS.. ', •'• I LIMITED@ AIMS GROUP ) RULING CHIPETA, J.: . '' . ~ ., ::}f-i..)f:i~rs,i.;.,~,,' 1 , · , •. , I ••· '. ~ ~.••i {;it ·-1, The plaintiff Corporation, namely, Tanzania Saruji Corpo~~ti,o,µ,Js :~: · :)::··;it.f[}J; suing the defendant, namely, Azania Investments .and M:in~g~m.en~·. 1 ·,: ~:,,:_J..l;'i: Services Limited@ AIMS, under Summary Procedure for arre,a.isiSf:r~ri_t;·;,;,(ti;f/J;i: 4t amounting to U.S.D. 25,000.00 and mesn~ profits at- the· rat~-'.:of~\1]'1SJJJ;1i{~/;tne1J{~i~~ st 1,000.00 per month from 1 September, 1998 to date of vacant:posseJs{o~~;'\ f~!.~~J~f:f:i; This is an application for leave to appear and defend the suit. ; ·,. , . . : ·; :, "/; ~-::-{ ' ,· '!'•'~• '· \ ,-- ;,j,J .. depon~:t ~a:~t!:1\i:'! ~~= ::;e~d;:/:~::p:~p~~e~~!ed:~~!i;~~;;~~: f~,-.,;,.,::~h: -1;;~;:; due to the respondent/plaintiff but that the defendant company has·1a coUI1ter'.:':. ;.·:, claim against the plaintiff. He did not elaborate. . .' •·: \F/\~:.~f.J,, • , • 1 > :,.,. ::·;,,-~·:itff(?~J)itfff . . , - ,. ..t _,._.. p·1 ,.-,~t;,.•,~-~r~.:1r During the hearing of this application, Ms. H. Sheikh/-)e~~,dJ(;;;}i:!;ffli1k advocate for the. applicant, submitt~d that there is a co~ter-~l~n ·:AA1~i J~\~; ~;f},;{l~i[{~ lea~e shoul~ be granted as ~e parties could benefit from mediat101~-:~,f;~8.\:'.:'":;~/}Z::~}tlf!,; av01d the filmg of another smt. • . ::·'\ 'i ::: ./1,,;;t}',l;;til~. Mr. Maira, learned counsel for the respondent submitted; in ·effect,' that the application had no merits as no triable issues have been disclosed:· '. . .'.;•· - :~·::.~j ~) ~·- . ·.:-:\))t!fMi .,~,- ,. .:. it'r~· . . ,.... ,, t··· 1,, :-.,1'- I ~ i· ' -. • -~ ,~ • •) '1 • ' :·, • j . , :;\:-}::!t • ' ~·. .t:! It is, I think, well settled that for an application of this J<ind to . . . succeed, the applicant must show, by evidence, that there are bona fide · · . ·.: I '•l triable issues.· It will not succeed if the defence set up is illusory or shru~ .. (See Thseen Stahlunion Export v. Kibo Wire Industries, (1973). LRT n. 54; and Zola v. Ralli, (1969) E.A. 691). The applicant is requir_ed: to state . clearly and concisely what the defence is and the facts on which thatdefence 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 dearly that he should have leave to defend the suit. It follows, therefore, Lhat a mere allegation, such as "lack of consideration", "counter::-claim" or "fr;iud". will not suffice. A party who is ·entitled to a liquidated. sUin in the case: of a'. clear admission by the other party is entitled to sUinmary judgment on the ' ' ·. ·-.,,. "'-'. .'\_ basis of a dishonoured promissory note. ·The rationale· of Order 35 «;>f,the ' . /;~'.::-::~- '· J}.:;1 Civil Procedure Code, I think, was succinctly stated in Zola's case (supra) ,.' r·-·t '· .: ~ ,\·. :t in which Sir Charles Newbold, P. stated, 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 judgmcn f without being unnecessarily kept from what is due ' ;.·:•::r: . to him by delaying tactics of the defendant". . .. r ::·· ·. '!;k(~/~ ., . In the instant case, the applicant/defendant clearly admits the debttir:r · ·::,_/ '>.l 1 the affidavit in support of the application. The alleged counter-claim hasnot, .V- :>' ... _. ;if< ':> . , been particularized. In other words, there are no facts on wh i cl i the same, is, · ·,. · , based. So it remains as a mere allegation which a party c:111 · ; 11,1ke -at his. · : : . , .-_); whim. In such a case, it would be unreasonable to hold that a b·on_a; fide> ._,_ .· · :,\:. ,> triable issue has been disclosed. I feel fortified in this view by the words-of · ~j/ ;_:..- Lord Blackburn in ~e cas_e of Wa~lingfo?'d v. Mutual Society, (18~0) ~- ;r~:{~();:: A.C. 685 at page 704 111 which he said: · •:' ·. ,.Jti' ;, ; : ' : :~ j . .j •. "I think that when affidavits are brought forward to raise a defence they must, if I may use the expression, condescend upon particulars. It is »{enough to swear, "I say I owe the man nothing ... " But that is not enough. You must satisfy the judge that there is reasonable ground for saying. So again, 2 • I t,• 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 judge 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 !,,_. mentioned." For these reasons, I ho]d that the applicant,.on whom l,:...: 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 r.)1· the plaintiff as_ claimed in the plaint. 28/6/2001 Coram: F.S.K Mutungi, DR For the Plaintiff: M.aira For the Defendant: Absent CC: Maurice Court: Ruling read this 28/6/200 I in Court in the presence of Mr. !'\hi rn for the plaintiff but in the absence of Mis H. Sheikh though duly sci ..,·,: : to appear. Read by F.S.K Mutungi, DR. . ' :,.' (Sgd): F. S. K. MUTUNGI DISTRICT REGISTRAR 28/6/2001 3