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    Amendment of Pleadings 3

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    Amendment of Pleadings 3

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    Amendment of Pleadings 3

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    COURT OF

    ^ THE UNITED REPUBLIC OF TANZANIA


    (LAND DIVISION)
    AT DAR ES SALAAM

    MISC. LAND CASE APPLICATION NO. 291 OF 2020


    (Originating from Land Case No. 402 of 2015)

    PETER GEMBE APPLICANT


    JACKSON GEMBE 2"° APPLICANT

    VERSUS
    ABUBAKAR RAJAB YUSUPH RESPONDENT

    Date of Last Order: 10.08,2020


    Date of Ruling: 19.10.2020

    RULING

    V.L. MAKANI. J

    The applicants are seeking for the following orders:

    1. That this honourable court be pleased to make an


    order for departure from the scheduling order made
    on i/'' September 2019 so as to allow the
    Applicant/Defendant to apply for leave to amend
    written statement ofdefense.

    2. That this honourable court be pleased to grant leave


    to the Applicants/Defendants to amend their written
    statement ofdefense In Land Case No. 402of2015In
    order to determine the real Issue In controversy
    between the parties.

    3. Costs to follow events.

    4. Any other reliefs this honourable court may deem fit


    to grant.
    The application is made under Section 23 of the Civil Procedure
    (Amendment of the First Schedule) GN No. 381 of 2019, Order VI
    Rule 17 and section 68(e) and 95 of the Civil Procedure Code CAP 33
    RE 2002. The application is supported by a joint affidavit of the
    applicants. The respondent opposed the application by filing a
    counter-affidavit.

    In their affidavit the applicants are seeking to amend paragraph 13


    of the amended WSD and replace it with another paragraph which
    reflects that the 2"'' defendant was allocated 40 acres and then an

    additional 20 acres as opposed to the current WSD which reflects that


    the 2"'' defendant was allocated 20 acres and an additional of 10 acres
    as compensation. In essence the current issue in controversy is who
    is the lawful owner of the said 30 acres of land located at Relini Street

    In Klluvya Ward, Kisarawe District, Coast Region.

    The application was argued by way of written submissions. The


    submissions by the applicant were drawn and filed by Mr. Mrindoko,
    Advocate. And those by the respondent were drawn and filed by Mr.
    Daibu Kambo, Advocate.

    Mr. Mrindoko submitted that according to section 23 of the Civil


    Procedure (Amendment) Act GN No. 381 of 2019 and Order VI Rule
    17 of the Civil Procedure Code Act CAP 33 RE 2019(the CPC), a party
    can amend pleadings at any stage of the proceedings. He said in the
    English case of Loutf vs. Czarnikow Ltd (1952)2 All ER 823 an
    amendment was allowed before judgment was pronounced. He said
    several factors have to be considered \when leave is sought such as
    the circumstances of a particular case, whether amendment will
    create unnecessary delay, where the amendment appears to the court
    to be necessary for the purposes of the determination of the real
    controversy.

    Mr. Mrindoko said In this particular case the original Written


    Statement of Defence (WSD) was not effectively framed. He said
    original WSD was prepared by Mussa Mflnanga, Advocate of Barlow
    Attorneys and they were facts which ought to be pleaded and they
    were left out as reflected In paragraph 8 of the affidavit. He said the
    omission resulted from a drafting error and the applicants are not
    responsible for this omission. He relied on the case of Banco Arobe
    Esponol vs. Bank of Uganda (1999) 2 EA 22 where the court
    held that "It is a principal of the iaw that error by counsel must not
    be visited upon his client". He also relied on the case of General
    Manager EAR & H.A vs. Thierstan (1968) 1 EA 354 where the
    court allowed the application for amendment after close of the
    plaintiff's case due to defect or error on draft of the defense caused
    by the defendant's counsel. He also cited the case of Kimani vs.
    Attorney General(1969)1 EA 29.

    On the Issue that the amendment would not create unnecessary


    delay, Mr. Mrindoko said by the time he was engaged the amended
    WSD was already filed and the matter was on the hearing stage. He
    said even If the court found there was delay, still this Is not a sufficient
    ground for the court to refuse an amendment as per the case of
    Central Kenya Ltd vs. Trust Bank Ltd (2000) 2 EA 365 where
    the court held that:

    ''mere delay is nota sufficientground for declining leave


    to amend. The overriding consideration is whether the
    amendment is necessary for determination of the suit
    and whether the delay was iikeiy to prejudice the
    opposing party beyond compensation in costs"

    Mr. Mrindoko said amendment of the WSD is necessary because it


    raises the issue as to the size of the land of the defendants which is

    the controversy between the parties. He said in the original WSD the
    land claimed to be allocated by Kiiuvya A Village was mistakenly
    stated/written as 30 acres instead of 60 acres.

    As to whether the amendment would cause injustice to the


    respondent, Mr. Mrindoko said there is no injustice because the
    matter is still at the hearing stage and judgment has not been
    pronounced and no right has come to existence. He said if the court
    finds that the amendment would prejudice the other party still the
    remedy is to be compensated by costs. He relied on the case of
    Eastern Bakery vs. Castetino (1958) EA 61. He prayed for the
    application to be granted with costs.

    In response Mr. Kambo said that Order VI Rule 17 of the CPC gives
    the court a discretionary power to grant or refuse the amendment of
    WSD. He was of the same view as Mr. Mrindiko of the factors in which

    the court has to look into to come to a rightful decision.


    As for the first factor, Mr Kambo said the amendment would create a
    lot of unnecessary delays In determination of the case. He said each
    case has to be determined according to Its facts. The court and the
    respondent have to be assisted to the background that led to the
    amendments In the English and Kenyan cases cited by Mr. Mrlndoko.
    As for the second factor, Mr Kambo said the controversy Is trespass
    by the applicant on the respondent's 30 acres plot. He said there was
    no point In bringing a new Issue of 60 acres which was not In
    controversy. He further said that the WSD was drawn under the
    Instructions of the applicants they could not have failed to know of
    the facts of the case while they verified and signed the contents of
    their WSD.

    As for the third factor, Mr. Kambo said the amendment would bring
    Injustice to the respondent as they have already closed their case. He
    said the argument by applicant that the matter Is still at the hearing
    stage and no right has been pronounced Is misleading as the
    respondent's right to defend the case Is not guaranteed Including the
    right to testify on matters to be Introduced In the WSD and to call
    witnesses. He said there Is also a danger of losing key witnesses and
    also having testimony of some of the witnesses expunged. Mr. Kambo
    relied on the case of George Shambwe vs. Attorney General &
    Another [1996] TLR (CA) where the court of appeal cited with
    approval the case of Eastern Bakery vs. Castelino [1958] EA
    461. He said the principle In this case was for amendments to be
    sought and allowed before the hearing of the suit. He prayed for the
    application to be dismissed with costs.
    In rejoinder Mr. Mrlndoko reiterated that there was an error In the
    drafting of the WSD and the allocated 60 acres to the applicants was
    not clearly pleaded In paragraph 13 of the joint WSD. He said since
    the error was by Counsel then the client should not be punished. He
    said when the amended WSD was filed the applicants were not aware
    of the defect until when he was engaged and that an amendment Is
    not refused on account of delay. He went on saying that the
    amendment Is aimed at removing the defect on the size of the land
    of the applicant and this will not prejudice the respondent. He prayed
    that the prayers In the application be granted.

    I have gone through the affidavit, counter-affidavit and the rival


    submissions by Counsel. It Is without dispute that: first, the suit was
    filed on 23/12/2015. Secondlv. this application has been made after
    mediation, the final pretrlal conference and after the plaintiff's case
    was closed. Thirdlv. It Is also not In dispute that there was an
    amendment of the Initial WSD whereby the 2"'' defendant was joined
    as a party to the suit and the said amended WSD was filed on
    03/04/2019.

    I have noted that Mr. Mrlndoko has cited many cases Including English
    and Kenyan cases all of which copies were not annexed for assistance
    to the court as Is the normal practice. Since the court did not have an
    opportunity to go through the cases then It will not make reference
    and/or rely upon the said cases. Secondly, since the amendments In
    GN No. 381 of 2019 have now been Incorporated In the Civil
    Procedure Act CAP 33 R.E. 2019,the citing by Mr. Mrindoko of section
    23 of the Civii Procedure (Amendment of the First Scheduie) GN No.
    381 of 2019 is very confusing. The proper citing of the provision after
    the pubiication of the Revised Edition 2019 wouid be Order VIII Ruie
    23 of the Civii Procedure Code CAP 33 RE 2019. I therefore urge
    advocates to ensure that aii amendments incorporated in the Revised
    Edition of 2019 (as per GN No. 140 of 2020) are cited according to
    provisions appearing in the Revised Edition 2019 and not the
    amending Acts.

    Having said so I wouid now embark on determining the application.

    The iaw governing amendments of pieadings is iaid down under Order


    VI Ruie 17 of CPC which provides:
    "The court may at any stage of the proceedings allow
    either party to alter or amend his pleading In such
    manner and on such terms as may be Just, and all such
    amendments shall be made as may be necessary for the
    purpose ofdetermining the real questions In controversy
    between the parties."

    In the case of Motohov vs. Auto Garage Limited & Another


    [1971] HCD 81 it was stated:

    "...Amendments shall be made as may be necessary for


    the purpose of determining the real question In
    controversy between the parties...The making of
    amendmentIs notreally a matter ofpower ofa court but
    Its duty, so that the substantiallyjustice may be done."

    In view of the position of the iaw above, the issues before the court
    which wiii be deait together are as foilows:
    a) Whether the amendment will create unnecessary
    delay.

    b) Whether the amendment appears to court to be


    necessary for the purpose ofdetermination ofthe
    real controversy between the parties.

    c) Whether the amendment can be made without


    Injustice to the other side.

    The prayer for amendment to replace paragraph 13 with another


    paragraph means Introducing totaling new facts relating to the size
    of the land in dispute. And in my view, this is introducing or changing
    the whole character of the suit and raising a new cause of action. In
    the case of Angel Tlmoth Kingu & Another vs. Bruno John
    Ngooh & 3 Others, Land Case No. 384 of 2015 (HC-Land
    Division)(unreported) my sister Hon. Mgonya, J quoted Sarkar on
    the Code of Civil Procedure 19th Edition Volume 1 at Page 92 stated
    the following:
    "An amendment ofpieading should notIntroduce a total
    different, new and Inconslstence case, or to substitute
    one distinct cause of action for another or change the
    character ofthe suit".

    In the present case the intended amendment would not only change
    the character of the case but will fill in the gaps that the defendant
    was not able to raise in the course of preparation of the pleadings.
    And in the words of Sarkar above, the amendment would "substitute
    one distinct cause of action for another". If at all there was

    controversy on the issue of the size of the land in dispute, then the
    applicants would have noted it at the earliest possible time. The
    argument that the omission was by the initiai Advocate Mr. Mfinanga
    has no merit because as correctiy stated by Mr. Kambo, facts do not
    originate from the advocate but their ciients, and favour was with the
    appiicants as there had an opportunity to make an amendment when
    they amended the first WSD but they did not seek this court's
    permission to make any amendment to the said effect. It is aiso
    apparent that the appiicants aiso read, verified and signed the WSD,
    not once but twice, so putting the biame on Mr. Mfinanga aione and
    at this stage is improper. In any case, it beats iogic that the applicant
    and their advocate would forget to state with clarity the size of the
    land in dispute until another advocate comes in and raises such an
    observation. It is inconceivable that the appiicants would forget that
    they are owners of 60 acres of land and instead cling to the 30 acres
    throughout their proceedings and for ail these years. This raises a lot
    of questions as to whether the intended amendment is in good faith
    or at ail.

    Mr. Mrindoko said Mr. Mfinanga omitted to state that the appiicants
    were owners of the 60 acres of land in the amended WSD. My
    understanding is that the initiai WSD would have reflected the 60
    acres. But I have gone through the initiai WSD and the amended WSD
    what is in dispute is the 30 acres and there is nothing reflecting that
    the mention of 60 acres was left out as Mr. Mrindoko wants us to

    believe. The intended amendment in my view is an afterthought and


    cannot at this stage in time be said to raise a controversy for
    determination by this court.
    As stated hereinabove, the main reason for the amendment Is based
    on the alleged omission by the previous Advocate Mr. Mflnanga. But
    the blame cannot be on Mr. Mflnanga alone, as Mr. Mrlndoko was
    present when the matter came for final pre-trial conference on
    25/11/2019 where Issues were framed and also on 16/03/2020 when
    hearing of the plaintiff's case commenced until the plaintiff's closed
    their case. The main Issue framed was In respect of a dispute of 30
    acres of land In Klluvya village and this Issue was a guide when the
    plaintiff was presenting his case. Since Mr. Mrlndoko agreed on the
    Issue as framed and cross-examined the plaintiff's witnesses on the
    Issue of the land In dispute, which Is 30 acres, he cannot claim now
    that what Is In controversy Is 60 acres. Indeed, according to Order VI
    Rule 17 of the CPC amendment of the pleadings can be at any stage
    of the proceedings, but this cannot be used as a shield to cover laxity
    or fill In gaps of the applicant's case. As stated In the case of George
    Shambwe vs. Attorney General & Another (supra) amendments
    before commencement of hearing can be allowed freely. And I would
    wish to add that amendments after commencement of hearing has to
    be taken with caution considering that parties have had an
    opportunity of going through mediation and also hearing and thus
    parties may be tempted to fill In gaps and this In my considered view
    would cause Injustice to the other side.

    In the present case the amendment was made after commencement


    of hearing and the applicants had ample time to seek for an
    amendment before the hearing. They could have done so when they
    were doing the first amendment or before the frame of Issues or
    before the hearing. In other words, the applicants ought to have

    10
    sought the amendment earlier. Failure of which implies that the
    applicants are not acting malafide. And as I have endeavored to
    address hereinabove, the engagement of Mr. Mrindoko cannot be a
    shield, as he was at the final pre-trial conference and during the
    hearing, but he said nothing about the intention to amend the WSD.

    Now, wili the amendment cause injustice to the respondents? Indeed,


    as established hereinabove and as correctly said by Mr. Kambo, if the
    amendment is granted it would cause unnecessary delay to the
    finalization of Land Case No. 402 of 2015 which case have dragged
    in the registry for a long-time. It will also cause a lot of injustice to
    the respondent's case in terms of re-calling the witnesses, and
    considering the nature of the intended amendment, this may even
    entail starting the case afresh which, in my view, Is an unwarranted
    exercise and cannot be compensated by costs.

    In the result thereof, it is my settled view that departure of the


    scheduling order is unnecessary, and it is hereby rejected. And due
    to the reasons afore stated, the proposed amendment sought by the
    applicant has no merit and it is hereby rejected. The application is
    thus dismissed with costs and I proceed to order the suit to proceed
    as appropriate. It is so ordered.

    o
    m.OF
    c
    (X/C(a/W^
    5 5, V.L. MAhANI
    3udg|e
    O 19/10/2020

    11

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