| dc.description | M/S ROKO INVESTMENT CO. LTD v. TANZANIA ELECTRIC SUPPLY CO. LTD
[COURT OF APPEAL OF TANZANIA] (KOROSSO, GALEBA, AND MWAMPASHI. JJ.A.)
CIVIL APPEAL NO. 327 OF 2019
(Appeal from the Decision of the High Court of Tanzania at Tabora)
(Mallaba, J.)
Dated the 22nd day of May, 2018
in
Civil Appeal No.18 of 2017
9th November 2022- DAR ES SALAAM
Civil Practice and Procedure – Summary Suit- whether recovery of electricity charges is amenable to summary suit– Order XXXV Rule 1 (d) of the Civil ProcedureCode [CAP. 33 R.E 2019],
Civil Practice and Procedure – Summary Suit-particulars of the summons issued to the Defendant
Civil Practice and Procedure – Summary Suit-whether the Defendant has an automatic right to appear and defend the suit,
Civil Practice and Procedure – Summary Suit- Defendant appeared and filed Written Statement of Defense without being issued with summons and no leave was granted- whether it is fatal.
Case Summary
By way of summary suit under Order XXXV of the Civil Procedure Code [CAP 33 R.E 2019], the Respondent filed against the Appellant, a Civil Case No. 29 of 2016 in the Resident Magistrate Court of Tabora. The suit was for the claim of TZS 84,160,612.93 being the principal sum plus interest arising from unpaid charges of electricity supplied by the Respondent to the Appellant’s ginnery.The Appellant was not given summons informing her of the right to obtain leave to defend the suit but the Appellantappeared on the 02/11/206 through his advocate without leave of the Court and orallyprayed to file a written statement of defense which was then filed on the 08/11/2016.
In its judgment dated 07/06/2017, the trial Court enteredjudgment for the Respondent and ordered for payment of TZS 84,160,612.93 plus TZS 20,000,000.00 as general damages,interest and costs.Discontented, the appellant filed CivilAppeal No. 18 of 2017 in the High Court of Tanzania at Tabora.Unsuccessful to the appellant, the appeal was dismissed with costs on22/03/2018. Still discontented, the Appellant lodged the instant appeal on21/08/2019.
Held:
(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.
The Court quashed the Proceedings of the trial Court and the High Court except the Plaint.
For Appellant: Mr. Kelvin Kayaga
For Respondent: Mr. Ponziano Lukosi, PSA, Mr. Lameck Merumba, SSA, Mr. George Kalenda and Ms. Juliana Kipeja, SAs.
Legislations Referred:
The Civil Procedure Code [CAP. 33 R.E 2019].
The Appellate Jurisdiction Act [CAP. 141 R.E 2019]
No Case Laws Referred; | en_US |
| dc.description.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 | en_US |
