Nararisa Enterprises Company Limited and 3 Others versus Diamond Trust Bank Tanzania Limited; Misc Commercial Case No 202 of 2015: High Court of Tanzania (Commercial Division) at Dar es Salaam (unreported)
- Civil Procedure
- Summary suit –application for leave for defend a summary suit- what factors should be taken into consideration?
- Banking Law
- Summary suit-summary suit based on mortgage –application for leave to defend –what factors should be taken into consideration?
Held:-
(i) Before granting leave to defend a summary suit, the court should look upon the affidavit filed in support of the application to see whether the deposed facts have demonstrated triable issues fit to go to trial. The applicant is only required to show a fair and reasonable defence.
(ii) The following principle should be followed when considering the question of granting leave to defend a summary suit:-
(a) The defendant must satisfy the court that he/she has a good defence to the claim on its merits;
(b) If the defendant raised triable issues 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/her to defend. That is to say, although the affidavit does not positively and immediately make it clear that he/she has a defence yet shows that such a state of facts as leads to the inference that at the trial of the action he/she may be able to establish a defence to the plaintiff’s claim;
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the defendant is not entitled to leave to defend;
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine the defendant may be denied leave. Alternatively the Court can allow the defendant to proceed if the amount claimed is paid into the Court or otherwise secured and give leave to the defendant or such other conditions. (Cited Indian Case of Mecholec Engineers & Manufactures v. Basic equipment Corporation 1977 AIR 577.)
(iii) In order to the principle above to apply in a suit based on mortgage the court must satisfy itself that the applicant has first satisfied the amendments provided by the Mortgage Financing Act to Order XXXV of CPC. That is, the applicant must satisfy the court that he did not take the loan or, if he did, he has paid it in full or a portion thereof.