19980313 TZHC Dar es Salaam

. · m THE HIGH COURT OF TAN'.":';ANIA AT DP,R :F~S .SAU..f,.M CIVIL CA;JE NO. ~7 OF 1994 HlJS,'3EIM OMARY Ml-JASA • • •,,, ••••••••• PLAHH'I}?F'

VERSUS e e e Ge··•·•• e e . • • e • e et• • e e e O ♦ PESPOl\:"J}E!'J I1 1 O ....

RULING This is on application in whi•h two reliefs are sought. One, that the :plaintiff b8 ordered to supply further and better particulars of the claim; two, th:::t leave to am011d the written statement of defence be granted. According to the ~ffidavit evidence the pl,s_intiff was the defendant's customer at its Kenyatta Road Bra.nth, Mwanza. In these l)roceeding he (the plaintiff) seei, ;o re~er f'rom the defend:,_nt .-: . ,sum of Shs. 856,27,9~/90 which it -·ie averred ,tho def;e.ndant wrongfully debited to his account. When filing its written statement of defen,r the defend:mt rs learned counsel 1 served two noti,es on the ~a:i,ntitf. ' One of those notices rEqttired the plaintiff to supply further, and bette~ particulnrs, a ti_emant which appears to h~ve been ignC:, ed by the plaintiff., h the course of time the suit was called for tria1 before Ma.dame Bubesh~, ..r•. It transpired that on 25th April, 1995 when the -::ri·,1 Judge was recording evidence the plaintiff i11trodueed riocuments which bore the particu1nrs the defendant wanted •. In the meantime Mada.~e Bubeshi, J tound eause to disqualify herself •·· . from the fOndu~ and, the trial of t~is ~ase,tyando, J •., took over. He, on 12th March, l996,: ordered the plaintiff to sunply th::; :1efendant with further and bet~~ partieulars cind to respond to a· notice of a prelirainary objection tn whi~ 1t. .was averred that

the plaint wa.s ba.d in law in as much as it did not .on~m to Order VII of the Ci-ril Procedure Code~ It is 'by reason ot the plaii,.tt:f'f's refusal to obey the s.aid court order, so it is ~l.eged, that the de!end~t has lodged this applici:'.ti~n. It contends that there i~ ~eed to a.mend thG ,,,,i.itteu-def.enc,c: anc.l that it can 'do so only if tht plaintiff' supplies it w-itl\ · th~ further and better ' •'. . particulars it d&man~sl \' The p!.aintilfe in his eounter atfidavit 1, •ontends that the particulars demanded by the defendant were supplied as requ~ed. 2 It al.trib,Jt•. thi:3 to ~.ts ndvocatG who is alleged to have done so. Mr Lebba, lec:::!.'_:-;ed counsel for the plaintiff, who is all~ged to have done so did no·1: ~:i.,r:.:• c,·idc::-::~ to confirm this allegation.. That omission has rendered r..<B :i1Gc~·.'.'.'.';'l.Y the testimony of Husseir1 Omari i-',,-,~so... So as it were the defendant/applicant• s case stn.n:-J.s u::1coll"~rov0rtGd. In f2-c:t there is I ~ nothing in the proce~dings of this ce,se which su~•:: ,]:-t.s t!10 p2..-::..:i.17.-':,:_ff/ respondent 1 s contention that tne plain::if: hns ever s~~)plied the further and better partici~]ars demanded from hi:n. I would, t:1eref:::>re, allow the first praye~.. Now;· it was directed that the application ·,Jr-J': -:;r, •~:e ,-:!.r3"Ued. by way of . . ' written submissions. Ms•· K8therine K. Oriyo duly

complied with the court order. in that behalf Mro Lebba did not., that her •lient :)e allowed to amend its :;:ilr ·.:u·'.::.:,:l,:.:s t.~c.s·,1s0 the procedural law allows that course of action. She citel Orclcr Vl rule 17 of the Civil Procedure Code :in support. Mr. Lebba; learn0cl c·:..uns-cl fc.:i' the plaintiff respondent did not offei- any i-'ival propC?sit~on. ·· I have myself considered Ms. Oriyoi s submissions and I am persuaded. th-::.t sh•J is r::.f~ht. It is no longer a controversial m~tter that a party may amend his/her/its pleadings at any ' , stage of tr.:~ p::-~-:::eqdin·is before judgment is pronnounJed. Avo.:i.lable jurisprudence , . ,__i-i~l the tasclaw on the subject give two, reru,ons why leave to amend snr ul ',.,, granted, that is to say:- 1, to enable t}le re.al question is issue be~ween the ~orties to be raised in the p1eadings; and 2_ that the amendment will not eause injury to the opposite party which· will not be> compen.sated by to3t.s., ,· ' The vreetahle inferr~ that ~ be <li;awn fi'o;n t 1~.0 1.bove propo_sitions . . ~ of the law 'is thatthere i·::Lll be no njuPy ~r injustice if the other side can be co~ated by costs. . .. 10 EACA l0f Habib .:!affer Map .. V. · .,;,Siri .,· .. •·· The ta.sos of He.rJi.Karsc111 YJ:1onjee P.a.G!J.rjec 1 J.943 1%2,)Ea 557 vhich have been -eited . by Ms. Oriyc, are ~it~ pert-~ , .. · "' ):~\~pti'il~_.:J?; Indee.:1,-

as it was held in F.astern Bake~x.Y Casteljfto(.1958' .E.~ 46~-.,---a~~~1dm8~ts so11g~t before the hearing ·-----:.--.,~. shoullbe freely_ allow~d./ if they ean be mnd~. with0ut ir:.justice to the other side. Ms Oriyo conteJ"ld3 '.::1c. 4· ~ner0 is no· injustice who.teve:r :t1rt 1rdJJ.. result to· the respondent if the amend-,nent is made. I c:.:.:;req_, I wouJ.: •J..:h0refore allow the second pr--yer c:;_s ,.,,.,7.1_~ Upon t>" f-.:: : ;::- .. ..; :1..:;iderations I allow the application. It is accordingly · directed that t:h;_; · 7.aintiff r:1.o e:upply the defend.ant better am:. further particulars as dem~nded ·within thirty days fror:1 the date of this ruling.; .. follow . the event. .:_ .. Delivfred., ~tj,) p;fl:i •,fl . ,; if· tt: "'' Ms Ligat·.?.: For .l1:mlic.:J1ts .,_.,_ ,, '• Mz-. ~bK1: · _ - c Respondent Ord~r: .Mention 20/5/1998. ,._, ... ____J'.,,'