A Summary Procedure Suit is a fast-tracked civil proceeding whereby the Plaintiff desires to proceed in Court on causes of action emanating from bills of exchange (including cheques) or promissory notes, recovery of income tax, mortgages (whether legal or equitable), suits by the Tanzania Electric Supply Company Limited for the recovery of meter rents, chargers for the supply of electricity, recovery of rent (interest), recovery of possession of immovable property and recovery of possession of any immovable property from a lessee under financial lease agreement whereby a lessee has no right of ownership over the property leased to him/her.
Institution of Summary Suits.
Summary Procedure Suits are primarily governed by Order XXXV of the Civil Procedure Code, Chapter 33, Revised Edition, 2019 of the laws of the United Republic of Tanzania. Suits under this order are usually instituted by presenting a Plaint in the usual form but endorsed “Order XXXV: Summary Procedure” and the summons shall specifically inform the Defendant that unless he obtains leave from the Court to defend the Suit, a decision may be given against him.
In order to defend the Summary Suit, the Defendant is under the obligation to apply for leave of the Court so as to Defend it, meaning that the Defendant has to file an Application supported by an Affidavit detailing the reasons for him/her to be granted leave to file a Written Statement of Defence in respect of the Summary Suit. Further, the Application filed in Court can be challenged by the Plaintiff and it may or may not be granted depending on what is presented before the Court determining that matter. However, in default of his/her obtaining such leave or of his appearance in pursuance thereof, the allegations in the Plaint shall be deemed to be admitted as per Order XXXV Rule 2(2) of the Civil Procedure Code.
The Defendant has to show merits on leave to appear and defend.
The Court may upon Application by the Defendant, grant leave to defend the suit by taking into consideration what has been sworn in the Affidavit, which should disclose:-
Leave to defend may be given unconditionally or subject to such terms as payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit.
Summary Suit for Possession against trespassers.
Where in a Summary Suit for possession against trespassers, if at all the Plaintiff does not know the name of a person in occupation and/or trespassing, the suit shall be brought against “persons unknown” in addition to any recognized Defendants. In this suit, the known Defendant shall be served with the Plaint and supporting Affidavit within two (2) to five (5) days before the Hearing date. Whereby in all other possessions suits the Hearing date shall not be less than twenty-one (21) days from the date of issuance of the Plaint.
Suits for possession of Mortgage.
In Summary Suits for possession of Mortgage, the Plaint shall also set out the state of the Mortgage account by including the amount advanced, any periodic repayment and any payment of interest required to be made. Further, the Plaint shall state the rate of interest payable at the commencement of the Mortgage, immediately before any arrears accrued and interest at the commencement of the proceedings in Court.
If the Summary Suit is brought because of failure to pay the periodic payments thus the Plaint shall disclose the dates when the arrears arose, all amounts due, the dates and the amounts of all payments made and a running total arrears. Further it shall disclose any payments required as per the terms of the mortgage such as:-
Summary Suits for possession of land consisting of a dwelling house.
This is a Summary Suit where a mortgagee seeks possession of land which consists of or includes a dwelling house. In this suit the Plaintiff shall send a notice to the property addressed to the occupiers within fourteen (14) days before Hearing date, the notice shall state the possession suit for the property has been initiated and shall display the name and address of the Plaintiff, the Defendant and give details of the place and time of the Hearing.
The overall objective of Summary Suits was illustrated in a landmark Case in respect of Summary Suits between CRDB Bank Limited versus John Kagimbo Lwambagaza (2002) Tanzania Law Report, whereas Honourable Kimaro, J held that “The purpose of Summary Suits is to enable a 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. I am of the settled view that Order XXXV is self-contained, in so far as it relates to suits stipulated there under.”
By Said Nassor - Advocate
Note: This is not a legal opinion, and the contents hereof are not meant to be relied upon by any recipient unless our written consent is sought and explicitly obtained in writing.
