THE REGISTERED TRUSTEE EDITED 2222222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI MISC. CIVIL APPLICATION NO. 17679 OF 2024 (Arising from Civil Case No. 11359/2024 of High Court). THE REGISTERED TRUSTEES OF THE EVANGELICAL LUTHERAN CHURCH IN NORTH CENTRAL DIOCESE.................................... APPLICANT VERSUS NATIONAL SOCIAL SECURITY FUND......................... RESPONDENT RULING August & 2nd September, 2024 Kahyoza, J.: The National Social Security Fund (the Plaintiff) instituted a summary suit under Order. XXXV of the Civil Procedure Code, [Cap. 33 R.E. 2019] (hereinafter referred to as the CPC) against the Registered Trustees of the Evangelical Lutheran Church in North Central Diocese (the defendant). Since a defendant under summary procedure has no automatic right to appear and defend the suit, the defendant applied for leave appear and to defend. The issue is whether the defendant has an arguable defence. In a summary suit, the applicant or the defendant has a duty to satisfy to the court that there is a prima facie defence, in other words that he has an arguable defence. A prima facie defence is a defence that is arguable; it 1 is not for the court to determine whether the applicant (defendant) would win or lose at an application stage. In M/s Mechelec Engineers & Manufacturers v. M/s Basic Equipment Corporation, 1976 (4) SCC 687, (1977 AIR 577, 1977 SCR (1)1060), where the Supreme Court of India laid down the principles for granting leave to defend, thus- "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits; (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence; (c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it dear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim; (d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then the Defendant is not entitled to leave to defend;" The cause of action in this case is that the applicant is in breach of its statutory obligations, as it has defaulted to remit members' principal contributions amounting to Tzs. 99,051,225.20/= being the outstanding principal member's contributions for the total period of 30 months and 2 accumulated penalties amounting to Tzs. 3,249,158.70. Thus, the respondent or the Plaintiff in the main suit claim against the applicant a total of Tzs. 102,300,383.90. The applicant deposed that the claimed amount is not a true reflection of the amount in default as the applicant had paid Tzs. 5.524,380.00 on 6th May 2024. The applicant added that if they are given an opportunity to defend, will pray for waiver of the penalty on the unpaid amount of Tzs. 3,249,150.70. The applicant's advocate and the respondent's state attorney adopted the affidavit and counter affidavit and submitted either in support or opposition of the application. The applicant's advocate prayed that the applicant to be given leave to defendant contending that if leave is denied, the Court will enter a decree inclusive of the amount paid. He added that the applicant prays for leave to defend the suit so that she may apply for waiver of the penalty of Tzs. 3,249,150.70. The respondent's state attorney submitted that applicant's prayer for leave to defend is a delaying tactic. She submitted that the applicant had various ways to settle the claim and the applicant does not dispute that she defaulted to remit contributions as required by law. She added that the 3 waiver was open for all members who paid the amount in default. It does not require anyone to defend himself to benefit from the waiver. I have passionately considered the arguments by both learned counsel and the affidavit and counter affidavit, which are the bases of this application. In Mohamed Enterprises (T) Limited v. Biashara Consumer Service Limited, [2002] TLR 159. it was stated that- "In the application of this nature, the court is not required to involve its length arguments but rather to look upon the affidavit filed in support of the application to see whether the deposed facts have demonstrated a triable issue fit to go for trial. The applicant is only required to show a fair and reasonable defence." • It is trite law as stated in Tanzania Telecommunications Company Limited v. Timothy Lwoga, [2002] TLR 150 that a defendant is entitled for leave to appear and defend a summary suit if it is shown that, there is a triable issue. In the present case, the defendant does not dispute that she has not remitted the claimed contributions but she contains that she had paid some amount of money, hence, the respondent's claim is false. I examined rule 3 (1) Order XXXV of the CPC, which provides for conditions for granting leave. It states that- 4 (1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which- (a) disclose such facts as would make it incumbent on the holder to prove consideration, where the suit is on a bill of exchange or promissory note; (b) disclose such facts as the court may deem sufficient to support the application; or (c) in suits arising out of mortgages, where the mortgagor demonstrate that- (i) loan or the portion of the loan claimed is indeed discharged; or (ii) loan was actually not taken. The respondent does not dispute that the applicant has paid some amount of money as claimed. If the respondent had disputed the contention submitted that the applicant has paid some amount of money, the applicant would have a defence to make. As the respondent does not dispute the contention that the applicant has paid the alleged sum of Tzs. 5.524,380.00, then the applicant has no defence. The fact that the applicant does not dispute the claim but states that the amount reflected in the Plaint is not the amount in default as the applicant has already paid Tzs. 5.524,380.00 does not entitle her a defence. 5 The applicant's averment in the affidavit implies that she admits liability and she has started paying. The applicant has no arguable defence. The objectives of summary suits, as stated in CRDB Bank Limited vs John Kagimbo Lwambagaza [2002] TLR 117, is to enable the plaintiff to obtain judgment expeditiously where the defendant has in effect no substantial defence to the suit and prevent the defendant from employing delaying tactics and, in the process, postpone the day of reckoning. The applicant has no defence, the fact that she paid some amount of money out of the claimed amount does not entitle the applicant to be given an opportunity to defend. The respondent has a duty to disclose during execution, the amount paid out of the decretal sum. If the decree holder does not disclose less amount paid, the judgment debtor may apply to the executing court praying the decree to be adjusted. In the end, I find that the applicant has not established a prima facie case for this Court to grant leave to defend. Consequently, I dismiss the application for leave to defend with costs. I order accordingly. Dated at Babati this 2nd day^f/September, 2024 John R. Kahyoza, J. 6 Court: Ruling delivered in the virtual presence of Mr. Joshua Mambo for the applicants and Ms. Mollel SA for the respondent. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 2. 9.2024 7