T WOMENS BANK LTD VS WINFRIDA KUNADUFOO KIMARO COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 70 OF 2015 TANZANIA WOMEN'S BANK LIMITED................................. PLAINTIFF VERSUS WINFRIDA KUNDAUFOO KIMARO JOAS BILIKWIJA RUGEMALIRA I............................... DEFENDANTS MARY GIDEON RUGEMALIRA 16th June & 27th October, 2015 RULING MWAMBEGELE, J.: The plaintiff Tanzania Women's Bank Limited filed this suit under summary procedure claiming jointly and severally against the three defendants Winfrida Kundaufoo Kimaro, Joas Bilikwija Rugemalira and Mary Gideon Rugemalira for the following reliefs: 1. Payment of an amount of Tanzania Shillings 155,968,633/= being repayment of the outstanding amount plus interest up to 5th June, 2015; 2. Payment of interest on the outstanding amount computed at the rate of 19% per annum accruing from 5th June, 2015 to the date of judgment; 1 3. Payment of any specific fees incurred in connection to recovering process; 4. Prevailing Commercial interest of the above sum from the date of Judgment until full payment; 5. Upon failure to pay the above, sale of Plot Number 112, Block 8 with Certificate of Occupancy No. 76169 Bunju Area in Kinondoni Municipality and sale of assets and chattels belonging to the 1st Defendant as per Letter of Hypothecation dated 20th February, 2012; 6. An order of vacant possession against the defendants, their servant's agents of any other occupants in Plot No. 112, Block 8, Certificate of Title No. 76169 at Bunju Area in Kinondoni Municipality and house located at Bunju Area in Kinondoni Municipality; 7. Costs of this suit; and 8. Any other reliefs this Honourable Court may deem fit and just to grant. The plaintiff and the second and third defendants, by a Deed of Settlement filed in court on 16.06.2016, have settled the suit amicably. As for the first defendant who did not file any application for leave to appear and defend the suit, Mr. Dickson Sanga, the learned counsel who appeared for the plaintiff when the suit was called on for necessary orders on 16.06.2016, had a prayer to make against her. The learned counsel prayed for summary judgment as against her as prayed in the plaint. That prayer was taken under the provisions of Order XXXV rule 1 and 2 (a) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002. The prayer did not meet any objection from Mr. Martin Rwehumbiza, the learned counsel who appeared for second and third defendants. He only requested that the matter 2 be marked as settled as between the plaintiff and second and third defendants. This is a ruling thereof. Let me state at this juncture that this ruling ought to have been pronounced on 03.08.2016 but because I was out of the station for two consecutive months for a special assignment upcountry which special assignment ended on 22.09.2016, the ruling could not be delivered as planned. It is true that the plaintiff and second and third defendants have settled the suit amicably and the relevant Deed of Settlement executed by both parties; the plaintiff on the one hand and the second and third defendants on the other, was filed in this court on 16.06.2016. In the premises, I order that the plaintiff and second and third defendants, having settled the suit amicably, a decree shall issue as against them (the second and third defendants) on the terms and conditions set out in the Deed. The suit as against the second and third defendants is hereby marked as settled. By a ruling of 27.10.2015, I refused the plaintiff's prayer for summary judgment against the first defendant who did not file any application for leave to defend the summary suit. I categorically stated that the order against her should await the finalisation of the suit against the second and third defendants when a meaningful order can be made against her. I found solace on that stance in Hathisang Premji Patel Vs Ramji Jethabhai (1947) 14 EACA 23. The suit against the second and third defendants having come to an end, Mr. Sanga, learned counsel for the plaintiff has reiterated the prayer for summary judgment against her moving the court in the process to walk the talk. 3 This issue will in no way detain me. The first defendant had not filed any application for leave to appear and defend this summary suit. Thus, there is no defence filed by the first defendant. Under normal circumstances, the first Defendant having not filed neither application for leave to appear and defend the suit nor defence, the plaintiff, in terms of Order XXXV rule 2 (2) (a) of the CPC, would unquestionably be entitled to judgment as prayed for in the plaint - see: CRDB Bank Limited Vs John Kagimbo Lwambagaza [2002] TLR 117. However, as the suit was filed against the three defendants jointly and severally, and as the plaintiff and second and third defendants have amicably settled the suit, I have serious doubts if the plaintiff can be entitled to summary judgment against the first defendant as prayed for in the plaint as Mr. Sanga, learned counsel for the plaintiff, would want this court to order. It appears to me that a meaningful order against the first defendant would be to issue a decree against her taking into consideration the Deed of Settlement entered into by the plaintiff and second and third defendants. Accordingly, in terms of Order XXXV rule 2 (2) (a) of the CPC, and taking into consideration the compromise of the suit by the plaintiff and the second and third defendants with whom the first defendant was sued jointly and severally, I enter judgment for the plaintiff against the first defendant and, in terms of rule 67 (3) of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012, proceed to decree as follows: 1. The second and third defendants shall surrender to the plaintiff their rights on Plot No. 112, Block 8 Bunju Area, Kinondoni, Dar es Salaam with Title Deed No. 76169 and the plaintiff shall be at liberty to dispose the same in whichever manner without interference by the defendants 4 or any person acting on their behalf as agreed in the Deed of Settlement between them; 2. The first defendant shall pay the plaintiff one-third of Tshs. 155,968,633/= being repayment of the outstanding amount and interest thereon as of 05.06.2015; 3. The first defendant shall pay the plaintiff one-third of 19% per annum interest on one-third of the outstanding amount decreed in 1 above; 4. The first defendant shall pay the plaintiff one-third of 7% per annum interest at court's rate on the decretal sum from the date of judgment to the date of satisfaction in full; and 5. The first defendant shall pay the plaintiff one-third of costs of the suit. Order accordingly. DATED at DAR ES SALAAM this 27th day of October, 2016. 5