charles kisora chacha mzambia 3 others vs benjamin nyagetango 8 others 2024 tzhc 143 7 february 2024

IN THE HIGH COURT OF TANZANIA MUSOMA SUB- REGISTRY

AT MUSOMA LAND CASE NO. 06 OF 2023 CHARLES KISORA CHACHA @ MZAMBIA................................. 1st PLAINTIFF KIRAMBO GOMERE CHACHA................................................... 2nd PLAINTIFF TIMASI MWITA GOMERE......................................................... 3rd PLAINTIFF GOMERE RYOBA GOMERE....................................................... 4th PLAINTIFF

VERSUS BENJAMIN NYAGETANGO...................................................... 1st DEFENDANT PETER RANGE.......................................................................... 2nd DEFENDANT CHACHA ROSO....................................................................... 3rd DEFENDANT MWITA MWITA NYAGUTWI................................................... 4th DEFENDANT MAHANGA TIMASI MAHANGA............................................... 5th DEFENDANT MATIKO SAMSON NKORORO................................................. 6th DEFENDANT MATIKO ZAKARIA NKORORO................................................ 7th DEFENDANT JOHN MWITA MUHERE.......................................................... 8th DEFENDANT NYANSWI JOHN NYAMHANGA.............................................. 9th DEFENDANT

RULING 14h December, 2023 & 0?h February, 2024 M, L, KOMBA, J.: Plaintiffs claim over defendants is a piece of land measure 120 acres which is located at Nyarero village within Tarime District. The said land worth Page 1 of 5 Tsh.560,000,000/= is said to be trespassed and distracted by defendants hence cause disturbance to plaintiffs, wherefore they claim for the compensation and general damages. When the matter was placed for Final Pre Trial-Conference (Final PTC) plaintiffs were represented by Mr. Boniface Sariro while defendants had legal service of Mr. Dominic Jeremiah, both being advocates. On that day when parties appeared for final PTC, Mr. Dominic moved this court through Order VI rule 17 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) and prayed to amend WSD of all defendants explaining he want to attach some important documents concerning the land dispute at hand and previous effort made by parties. Counsel insisted that his prayer intends to attain justice to all parties. While noting that the prayer sought is the right of defendants, Mr. Sariro submitted that this court was not properly moved as the scheduling order was already set and that Order VIII rule 23 of the CPC prohibit amendment of pleadings after scheduling order unless is for justice to parties. He was of the submission that counsel for defendant was supposed to pray this court to vacate

scheduling order before he pray for amendment. He prayed this court not to entertain the prayer unless the procedures are followed. Page 2 of 5 During rejoinder, Mr. Dominic clarified that the cited order (Order VI rule 17) allow amendment at any stage so far as it target to determine controversy among the parties while aiming at achieving justice. He insisted that the intension of praying amendment is to assist this court in doing justice while solving dispute between the parties. He said so far as Order VIII allow amendments for the interest of justice, his prayer too based on the interest of justice. I am called upon to decide whether the prayer is attainable. Both counsels relied on provisions of CPC, for easy of reference I shall reproduce the submitted orders as follows; O VI Rule 17. 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 of determining the real questions in controversy between the parties. O VIII Rule 23. Where a scheduling conference order is made, no departure from or amendment of such order shall be allowed unless the court is satisfied that such departure or amendment is necessary in the interests of justice and the party in favour of whom such departure or amendment is made shall bear the

costs of such departure or amendment, unless the court directs otherwise. Page 3 of 5 I find submission by both counsel is relevant to the matter at hand. That order VI allow amendment of pleadings at any time but there is restriction when the scheduling order is made. It is only possible where it is for interest of justice. Mr. Dominic in his submission said intended amendment aim to display efforts made over the dispute and if amendment allowed will help this court to do justice to both parties. Among the issue raised by Mr. Sariro is that, this court has already fix date for the final PTC and to him the prayer cannot be entertained. Due to the importance of amendment of pleadings on assistance of dispensation of justice to parties which is the core function of Judiciary, I hereby vacate my order issued on 12th December, 2023 about the final Pre­ trial conference and allow the prayer by Mr. Dominic for defendants. Leave is hereby granted for defendants to amend WSD within 30 days from the date of this ruling. Costs of adjournment to the tune of Tsh.200,000/= shall be paid to defendants before filing of the intended amendments. K M. L. KOMBA Judge 07 February, 2024 Page 4 of 5 Ruling delivered in chamber before Mr. Boniface Sariro for all plaintiffs who was connected from his chamber, Mr. Dominic Jeremiah for 1st, 2nd and 3rd' 4th, 8th and 9th defendants. In the absence of the plaintiffs and the 5th, 6th and 7th defendants. M. L. KOMBA I Judge 07 February, 2024 Page 5 of 5