DALMAR INVESTMENT 0001 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 3241 OF 2024 (Appeal from the judgment of Resident Magistrate Court of Dar es Salaam at Kisutu Civil Case No. 228 of 2018, Y. R. Ruboroga-PRM dated the 18th September, 2023) BETWEEN DALMAR INVESTMENT .......................................................... APPELLANT VERSUS PANDORA ENTERPRISES LTD ............................................. RESPONDENT RULING Date of last Order: 18/10/2024 Date of Ruling: 28/10/2024 NGUNYALE, J. The appellant was not amused by the decision of the Resident Magistrate Court of Dar es Salaam at Kisutu which pronounced judgment in Civil Case No. 3241 of 2023 in favour of the respondent. She lodged the present appeal which unfortunately was not determin$1 on merit because in the course of composing judgment the court noted some irregularities which attracted to re open the proceedings for the parties to address. The parties were called upon to address on the following issues; 1. Whether it was lawful for the trial Magistrate to order amendment of the plaint Suo Mottu when he said on 23d March 2022 "1 have noted that the plaint lack sufficient particulars in paragraph 4. 1 order the amendment of the same... " 2. Whether the judgment of the trial court contain prayers reflected in the final amended plairit. 3. Whether the amendment of the plaint four time was legally justifiable. At the hearing of the issues raised by the court, the appellant was represented by Mr. Twarah Yusuph, advocate while the respondent was represented by Ms. Ritha Mahoo, advocate. In her submissions in respect of the first issue Ms. Mahoo cited Order VI Rule 17 of the Civil Procedure Code, Cap 33 [R.E 2019] (the CPC) which speaks about amendment of pleadings. She stated that the court may allow either party to amend the pleadings where necessary for the purpose of determining the real question in controversy. It was her view that the trial Magistrate was right to order for the amendment of the plaint as he noted insufficient particulars in paragraph four (X the plaint. On the 2-d 2 issue she admitted that there is variation between the prayers in the judgment and the prayers in the last amended plaint. And on the 3'd issue, she agreed that the plaint was amended several times though the plaintiff only asked for amendment once. At the end, she prayed for an order of retrial from the point where the amendments of the pleadings started with no order as to costs. In his reply submission on the lst raised issue, Mr. Yusuph joined hands that on 23'd March, 2022 the trial court Suo Mottu instructed for the plaint to be amended; to him this was a procedural irregularity which as against the provisions of order VI Rule 17 of the CPC which require the court to order amendment of the pleadings upon being moved by the parties. On the 2-d issue about variation of the prayers in the plaint and judgment he admitted that the same are at variance the point which is a serious anomaly that there is variation between the prayers in the judgement and the prevailing plaint. In the judgment the trial magistrate used the original plaint instead of the last amended plaint which was prevailing by then. In respect of the last issue, he submitted that in amendment of pleadings the party seeking for the order must adduce reason for the amendment but ;M in the instant case that was not done. He prayed the court to order for retrial with costs. In her rejoinder Ms. Mahoo asked the court not to award costs as the faults were done by the court. I am grateful for the concise submissions on both parties regarding the issues raised, I proceed to weigh out the argument of the parties to make the decision for the ends of justice. As rightly submitted by both parties, amendment of pleadings is regulated by Order VI Rule 17 of the CPC; for easy reference I find it pertinent to reproduce the same hereunder: "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." The wording of rule 17 simply tells us that amendment of pleadings can be made at any stage of the proceedings and may be initiated by either of the parties as such terms may be just. This is the position of the court of Appeal in the case of Jovent Clavery Rushaka and Devotha Yipyana 4 @t„d Mponzi versus Bibiana Chacha, Civil Appeal No. 236 of 2020 where it was held that: "It is a settled law that a pleading can be amended at any stage of the proceedings only to the extent allowed by the court on such terms as may be just and such amendment should be limited to what will be necessary for determining the real question in dispute between the parties." On proceedings of the trial court dated 23’d March, 2022 the trial magistrate ordered the plaintiff (the respondent herein) to amend the plaint where he said : "I have noted that the plaint lack sufficient particulars in paragraph 4. 1 order the amendment of the same..." Under Rule 17 above, the court is given powers to allow or not to allow the orders of amendments. It is from this rule I find that the act of the trial Magistrate to act on his own motion to order the amendments of the plaint was unprocedural. The procedure requires the court to be moved by the parties, the court has no room to give an order on its own motion because the parties know better their case. The act of the Magistrate to move on his own motion to order for the amendment suggests that he tried to pray double role as a presiding Magistrate and a party risking his impartiality. ;wW Again, as per rule 17 above, for the court to allow amendment of pleadings two conditions must be met one, the amendment is necessary for the purposes of determining the real question in controversy between the parties and two, that, such amendment can be made without causing injustice to the other party. This is determined by adducing reasons for the amendment prayed, it is unfortunate that, from the lst amendment which was prayed by the plaintiff before the trial court on 12/12/2018 there was no any reason adduced or any explanation made to establish reasons for the amendment. Again, it is the requirement of the law that amendment should only be done to the extent allowed by the court, now if the reasons for amendment were not stated this means that the pleadings can be amended unreasonably. In the case of Jovent Clavery Rushaka & another versus Bibiana Chacha, Civil Appeal No. 236 of 2020 it was said: "It is settled that a pleading can be amended at any stage of the proceedings only to the extent allowed by the court..." Following the fatal irregularities noted, I hereby invoke my revisional jurisdiction to nullify and quash the trial court proceedings from 12th December, 2022 where the first amendment was done and set aside orders. The file should be remitted to the triab court for rehearing before another Magistrate with competent jurisdiction expeditiously. Because the issue was initiated by the court I grant no order as to costs. It is so ordered. JUDGE Ruling delivered this 28th day of October, 2024 in presence of the T. Yusuph for the appellant and hold brief for Ritha Mahoo for the respondent. -}#b: i ' '“’ i !\. D JUDGE