ORDER XXXV SUMMARY PROCEDURE OF CIVIL PROCEDURE ACT [CAP.33 R.

E
2002].

Order no 35 of Civil Procedure Act1 requires a person who has been arrested and presented
before the court on suits upon bills of exchange (including cheques) or promissory notes, suits
for the recovery of income tax and suit arising out of mortgages whether legal or equitable for
(sale, foreclosure, payment of monies secured by mortgage, redemption, transfer or
discharge),suit by The Tanzania Supply Company Limited for recovery of meter, rents, charges
for the supply of Electricity and any charges (including any tax) connected with or accidental to
the supply with electricity to any consumer. Suits for recovery of possession of any immovable
property and others as shown in the Civil Procedure Code order XXXV, Rule 1 sub rule (a-g). 2
Also the same idea has been shown in the book of the code of civil procedure written by Sarkar. 3
The constitution of united republic Tanzania Article 13, 6 (a) entails that every person has a right
to be heard this is supported by the principle of Natural Justice on the right to be heard as well as
the presumption of innocence.

 NATURE OF THE PROBLEM RELATING TO THE TOPIC.

The Constitution4 under Article 13, 6 (a) has provided that a person charged with an offence shall
be entitled to fair hearing meaning freedom to be heard but the contrary is that Order XXXV
Summary Procedure requires that when a person commits offences under the mentioned Order,
the defendant is limited on the right to defend himself or herself hence the right of being heard
which is the constitutional right is denied. Under this Order the right to be heard is given but
after the defendant has asked for a leave from the court and it is the description of the court to
grant him or her permission to defend before the court.

Also this Order is against the presumption of Innocence where every person is presumed to be
innocence before the contrary is proved. By limiting and conditioning the right to be heard it can
be assumed that the court has already satisfied that the defendant is guilt of the charges.

1
[CAP 33 R.E 2002]
2
Chipeta, B.D.(2002). Civil Procedure in Tanzania. Dar es salaam, Dar es salaam Press limited Pp 242-248.
3
Sarkar,S & Manohar, V.R. (2006).Code of Civil Procedure. Haryana, Lexis Nexis publishers p 2229
4
Of The United Republic of Tanzania of 1977
The principle of natural justice under the criterion of right to be herd also is denied where the
court observe Order XXXV Summary Procedure.

Since the right to defend by the defendant is limited and conditioned upon the description of the
Court, it is possible for the defendant to fail to meet the Court requirements which could make
the process to be conducted till to the judgment without giving a chance for the defendant to
defend him/herself before the Court. This is a peculiar procedure in the sense that the defendant
is denied his right to defend his claim and it is the suit which the judgment is obtained without
going to the full trial. Hence for justice to be done and not only to be done but only to be seen.
To that extent Order XXXV should be amended in order to suit ordinary procedures of the Court.

 ORDER 35 (xxxv) – SUMMARY PROCEDURE

This is a situation whereby the plaintiff as of right entitled to judgment without the defendant as
of right, being entitled to enter appearance. The object or purpose of summary procedure is that a
plaintiff who has a claim of liquidated sum should get judgment without further delay. A suit
upon a bill of exchange, a suit for recovery of income tax, a suit for any legal on……

Under 0.363 of 1968 the CPC was amended by Amendment of the 1 st Schedule (Rules). Under
this amendment several other instances were included e.g. suits by TANESCO for recovery of
meter rents and other claims connected with supply of electricity. Another suit which can be
brought under summary procedure is recovery of rent, debt, etc. due to the government or local
authority. The purpose for summary procedure was stated in ZUMLA v RALLI …..LTD (1969)
M. A. 691at page 694. The court ……”Order 35 is intended to enable the plaintiff with a
liquidated claim to which there is no defence to obtain a quick and a summary judgment without
being unnecessarily kept from what is due to him by the delaying tactics of the defendant. If the
judge to when the application is made considers that there is any reasonable ground of defence
of the claim, the plaintiff is not entitled to summary judgment.”

The procedure under which summary judgment can be asked from the court is provided for
under 0.35 r.2 (1) when a plaintiff wants to institute a suit by summary procedure, he must file a
suit in a normal manner endorsing it “summary procedure.” A copy should be sent to the
defendant. If the defendant thinks that he has a defence, he has to file an application by way of
chamber summons accompanied by an affidavit and giving his defence. By his application, the
defendant will be asking the court to allow him to appear and defend the case.

When the court receives the affidavit it has to consider whether the defendant has a defence. If it
considers that the affidavit reveals sound defence which is maintainable, it will allow the
applicant to defend the suit. The defendant has no automatic right to appear and defend the suit
endorsed “summary procedure.” He can only appear if his application is accepted in the court. If
by in advance way or otherwise the defendants do not fill application to appear, the court will
proceed to exparte judgment. It should be noted that summary procedure does not negate other
cardinal principles of justice e.g. the principal that “no one should be condemned unheard.”
Hence if the affidavit discloses a defence the court must allow the application.

The court should not ask itself whether or not the defence is true. The truth of the….defence of
the defendant will be considered in the hearing. In considering whether the affidavit discloses a
defence, the court will ask itself whether the defence discloses triable issued i.e. contentious
issues. Triable issues will arise when there is an allegation from one side and a good defence
from the other side. Case: In HASSANI v. BANK OF BELGIUM; the court held that, “the test
for determining whether the defendant has got good defence or …is whether the facts as alleged
by the defendant, if proved …would in themselves be a good defence.” This view was restored in
the case of KUNDANLAL RESTAURANT v. DEVSHI where the court said that, the rule is
that a defendant who has a stat able and arguable case must be given a leave to defend. The
same was the view in the case of CHUMANTILAL and COMPANY v. ADAM (1952) 22
EACA 92 at page 93 where the court said, a defendant who has a stat able and arguable defence
must be given the opportunity to state it and argue it before the court. All the defendant has to
show is that there is a definite triable issue of fact.

Once the application to defend the suit has been filed when court has discretion to grant leave
conditionally or unconditionally. Normally the court will grant leave to appear and defend
unconditionally. SANTOSH KUZAR v MOOR SINGH (1958) C.R. 121 It was held in this
case that once it is found that there is a triable issue, leave should be given unconditionally. The
test for determination whether there was a real or sham defence is whether the facts alleged by
the defendant are, if established, to a good defence. The court at this stage cannot go further than
that.
On the other hand, if the court finds, that the affidavit cannot be said to disclose really triable
issues, or if the court doubts the bone fide of the defence, then it may grant conditional leave to
appear and defend. A conditional leave to appear and defend means that the defendant would
have to fulfill the given conditions e.g. depositing some money as security, or it may be that he
should pay the costs of the suit whatever the outcome of the suit. This is provided under 0.35 r.3
(2).

R.3 (1) (a) and (b) enumerates conditions upon which leave may be given. It may be that a plaint
discloses matters which fall under 0.35 (summary procedure) and matters which do not squarely
fall under this order. In such a situation the court has two options: It may deal with only those
matters falling rightly under 0.35 and leave the other matters to proceed in the normal way or to
reject the plaint altogether.

Case: UGANDA TRANSPORT CO. LTD v COUNTY DE LA PASTURE (1954) 21 EACA

163. The court held that there is clearly no discretion to allow many claim to be brought by
summary procedure if is not precisely within the terms of 0.35 r. 1. If the suit is brought
according to the above order and rule, the title of the suit must be summary procedure 0.35. This
will inform the defendant that there is a suit pending against him of whom he has no automatic
right to appear and defend. Thus he has to apply for leave to appear and defend the suit within
10 days from when the summons was served to him.

CHUTANTILAL CASE if the defendant defaults or if the defendant applies to appear and
defend and the leave is not granted, it means that the plaintiff has a right to summary judgment.
This is in accordance with 0.35 r. 2. If the leave…and defends granted, then the suit
….procedure. It becomes summary procedure only if the defendant fail to file an application for
leave to appear and defend or having applied to appear and defend, the application (not raising
triable issues) is turned down.

If the case does not fall strictly under 0.35 r. 1, the court can either allow amendment enabling
plaintiff to strike out those matters not falling squarely under the above order and rule.
Alternatively, the court may proceed with the issues which squarely fall under the order and
leave the matters which are outside it to proceed in the normal way. Case: E. N. CORNELL &
CO. LTD v SHANTAGKARA DESH. (1936-51) 6 ULR. 603.
According to the case of KARACEORGELYS v EMMANUEL HAURONDS (1993) 11 TLR
42, when there is an alternative relief to the plaintiff the suit cannot fall under summary
procedure. The CPC provides for instances when the experts procedure may be set aside.
Whereas in Tanzania the defendant’s appearance is not automatic, it is automatic in Kenya.
When the plaintiff applies by notice of motion for summary judgment. The court will not ask
itself whether defendant has filed his defence, but whether there is a case for which summary
judgment has been made. The defendant has to file an affidavit resisting summary judgment. On
the part of the plaintiff, he has to ask for summary judgment in the course of hearing the suit.
Summary judgment is for a debt or liquidated money with or without interest. It can also be for
recovery of land. If the court is satisfied that the suit falls under the above subject matters, then it
will go to issue summary judgment. Thereafter the case goes in the normal way. In Tanzania
0.35 must be read together with S.82(c) of CPC.

SUMMARY PROCEDURE OF CIVIL PROCEDURE SATISFACTION ON GRANTING

LEAVE BY THE COURT

A general rule is that leave should be granted by the court unconditionally unless there is good
for thinking that the defenses put forward are no more than a sham (false), and it must be more
than mere suspicious. This was stated by Spry J in the case of Camille v Merali5.

Also the leave from the court to the defendant shall not be refused unless the court is satisfied
that the facts disclosed by the defendant do not indicate that he has a substantial defence to rise
or that the defence intended to be put by the defendant is frivolous or vexatious.6

But the leave could be granted conditionally only if the defendant could show by the affidavit
that there is a bona fide triable issue. This was stated in the case of Jacob’s v Booth’s Distillery
Co7.Leave should be granted after a proper application made before the court and if the
defendant default the judgment will be entered against him or her. But the granting of leave is
under the court prescriptions where leave could be granted only if the court,

5
(1966) E.A 411
6
Sastri, P. (2006). Civil Procedure Code. New Delhi, ANDHRA LEGAL DECISIONS Pp.490-495
7
1901 85 LR.
  May deem sufficient to support the application, the court must grant to the defendant to
appear and defend and such leave may be given unconditionally.
 Also the leave could be granted unless the defendant raise prima facie triable issue and
failure of that leave could not be granted.
 Also leave could be granted if the defence raises a real issue that is, if the facts alleged
make out a fair dispute8.

If the defendant wishes to appear to defend within 21 days he or she has to fill the chamber
application supported by an Affidavit or Declaration. The affidavit must show that there is a
defence to suits on the merits and the court will issue him chamber summons to inform him on
the date of appearing.

In the case of Thssen-stanlunion Export v Kibo Wire Industries 9 where the High Court 1907
relied in the decision under the case of Kundanlal’s where it was stated that where the defendant
can show that the Affidavit discloses a bona fide triable issue, he should defend that issue un
conditionally but a condition can be imposed where the court believes that the defence put up is
sham. Where on defends with a condition is required either to deposit to the court certain amount
of money/ percentage of the sum of the suit. The money in question can be allowable to be paid
in installments unless it has consulted the decree-holder to give consent.10

But on the same issue it was noted by Lord Blackburn in (1880) in the case of Willing ford v
Mutual Society11 in which he stated that ; I think when the Affidavit is brought forward to raise
defence they must, if I may use the expression, condensed upon particulars. It is not enough to
swear “I say I owe him nothing” that is not enough you must satisfy the judge that, there is a
reasonable ground for saying so” The same applies to the one who defends that “there was a
fraud” must satisfy the judge that there are facts that makes it reasonable that you should be
allowed to raise defence.

The law requires the defendant to fill an affidavit within 21 days and if he fails to fill it the
judgment will be entered against him, still under this rule no extension of time after 21 days. But
8
Chipeta, B.D. (2002). Civil Procedure in Tanzania. Dar es Salaam, Dar es Salaam University Press Limited Pp.243-
248
9
(1973) LRT 39
10
Paul, S. & Srivastava, A. (2002). Mulla the Code of Civil Procedure. New Delhi, Lexis Nexis Butterworths P.2384
11
(1880) 5 A.C 686
even if the decree has been issued the court can set aside and summons the defendant to appear
and launch afresh when the court thinks fit to do so. The court went on starting that under the
principle of Natural justice a man must not be condemned unheard as it was stated in the case of
Patel &Co v African Cotton Cooperation Limited12.

REFERENCE

STATUTES

The Constitution of United Republic of Tanzania of 1977

Civil Procedure Act [CAP 33 R.E 2002]

CASES

12
(1933) 5 U.L.R 6
Jacobs v Booth’s Distillery Co 1901 85 LR.

Camille v Merali (1966) E.A 411

Patel & Co v African Cotton Cooperation Limited (1933) 5 U.L.R 6

Thssen-stanlunion Export v Kibo Wire Industries Limited (1973) LRT 39

Willing ford v Mutual Society (1880) 5 A.C 686

BOOKS

Chipeta, B.D. (2002). Civil Procedure in Tanzania. Dar es Salaam, Dar es Salaam University
Press Limited

Paul, S. & Srivastava, A. (2002).Mulla the Code of Civil Procedure. New Delhi, Lexis Nexis
Butterworths

Sastri, P. (2006). Civil Procedure Code. New Delhi, ANDHRA Legal Decisions

Larry, L & Whitten, R.(2000). Civil Procedure. New york, New York Foundation Press

Sarkar, S & Manohar, V.R. (2006).Code of Civil Procedure. Haryana, Lexis Nexis publishers

Ralph, U. (2005). The Code of Civil Procedure. Faridabad, Allahabad Law Agency Publisher

Prepared by Magoto M Magoto