M/S ROKO INVESTMENT CO. LTD TANZANIA ELECTRIC SUPPLY CO. LTD CIVIL APPEAL NO. 327 OF 2019

Abstract

: (i) First and foremost, it is our observation that, the suit by the Respondent which is for the recovery of electricity charges amounting to TZS. 84,160,612.93, was properly brought under summary procedure. Under Order XXXV rule 1 (d) of the CPC, the Respondent is specifically mentioned as an amenable plaintiff who can institute suits under the summary procedure.

(ii) It is also clear from the above reproduced provisions of law that where a suit is filed under summary procedure, a special summons has to be issued to the defendant to inform him that unless he applies and obtains leave to appear and defend, the allegations in the plaint would be deemed to be admitted. It is also imperative that the defendant has to be informed, by that summons, the manner in which the application for leave to appear and defend has to be made;

(iii) It should be emphasized that, insuits filed under summary procedure, the defendant has no automaticright to enter appearance and file his written statement of defense. It is amandatory requirement of the law that before the defendant appears andfiles his defense, he must first apply for leave to do so under Order XXXVrule 2 (2) of the CPC;

(iv) It is therefore our settled finding, as also correctly submitted by the learned counsel for the parties, that the trial of the suit was conducted in contravention of mandatory provisions under Order XXXV rule 2 (1) and (2) of the CPC. Apart from the fact that the appellant was not served with the required summons as per rule 2 (1) of Order XXXV of the CPC, no leave to appear and defend the suit was applied for and granted to the appellant in accordance with rule 2 (2) of Order XXXV of the CPC. We agree with the learned counsel for the parties that, the irregularity is fataland that it rendered the whole trial and the subsequent appeal to the High Court, a nullity.