east african fossils co ltd 3 others vs ecobank t ltd 2023 tzhccomd 42 24 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 213 OF 2022 (Arising from Commercia! case No. 38 of2022) EAST AFRICAN FOSSILS CO. LTD.... ...................................... I57 APPLICANT VEDSTUS MATHAYO MANYINYI............................... 2ND APPLICANT STEPHEN MARWA MATHAYO .......................... .... ............ ....3RD APPLICANT MATHAYO SONS ENTERPRISES LIMITED ......... 4™ APPLICANT VERSUS ECOBANK TANZANIA LIMITED............... RESPONDENT RULING Date of.last order: 08/12/2022. Date of ruling: 24/02/2023 AGATHO, J.; This ruling was prompted by the Appli'cBnts' application: (a) That the Court may be pleased to order departure from the scheduling order in Commercial Case No. 38 of 2022 for the Respondent, the Defendant in the said suit to apply for an order to amend the Written Statement of Defence (WSD) in Commercial Case No. 38 of 2022 i (b) That this Court may be pleased to make an order allowing the Defendant to amend her WSD in Commercial Case No. 38 of 2022 to correct some averments and raise counterclaim. (c) Costs be in the Course (d) Any other orders that the Court may deem fit and just to grant. Both sides in this application were under legal representation. Whereas the Applicants Were represented learned counsel Seni Malimi, the Respondent was under representation of learned counsel Joseph Nuwamanya. On 08/12/2022, it was mutually agreed that the application be disposed byway-of written submissions. Pursuant to that consensus the Court drew schedule for filling. of submissions. Appreciatively, the parties filled their submissions timely. The application at hand is an outcrop of the main suit in which' the Applicants are Defendants, and the Respondent is the PTaintiff. It is a case filed by the ReSpondent claiming repayment of the credit facilities advanced to the T* Applicant ahd the 2nd - 4th App'icants were guarantbrS. T shbuld mention at' this juncture that the case was at hearing stage. I am saying so because, the Plaintiff has.elready filedher witnesses' statements and have served upon the Defendants. That stage in the trial is called examination in chief. The present application gives rise to three issues: l51 whether the order of departure from the scheduling order in Commercial Case No. 38 of 2022 should be granted? 2nd whether the conditions for granting such order have been met? And 3rd whether an order allowing the Defendant to amend her WSD in Commercial Case No. 38 of 2022 should be granted?These issues can be determined by examining the affidavits and counter affidavits, submissions of the parties and the law. To begin with, the lstand 2nd issiies are merged because they are interrelated. Whiie the l51 issue is whether the order of departbfe from the scheduling order in Cdmmercial Case No. 38 of 2022 shduld be granted, the 2nd issue is whether the conditions for grahting Such order were met? It is trite law under Order Vl of the Civil Procedure Code [Cep 33 R.E. 2019] that amendment of pleadings may be done. atany stage of the proceedings.Hence Order VI Rule 17 of the Civil Procedure Code [Cap 33 R.E;-2019]provides: "The Courtmay atany stage bfthe proceedings allow either party to aiter or amend his pieading in such manner and on such terms as may bejust, andall sudiamendments sha/i be made as may be necessary for the purpose of determining the reai questions in cpntroyersy between the parties." See also page 3 of the ruling in EquityBank (Tanzania) Limited v Abdulrahman Mohamedi Kwadu T/a Kwadu Mikoma Enterprises & Another, Misc. Civil Application No. 369 of 2021, HCT Dar es salaam Registry at Dar es salaam at pages 3-4. Moreover, granting of the order for amendment of pleadings has certain conditions. These have been concisely pronounced by the Court of Appeal Tanzahia in George M. Shambwe v. Attorney General [1996] TLR 334 in which the CAT reaffirmed what was Stated by the defunct Court of Appeal of Eastern Africanin Eastern Bakery v Castelino (1958) E.A. 461 that: 'We need aisb to reaffirm the principies upon which amendments to pieadings shouid be made. Thesewere stated by the Court of Appeai df Eastern Africa irithe case of Eastern Bakery v Castelino (1). That Court stated at 462, It wiii be' sufficient for the purposes of the present case, to. say that amendments to pieadings sought befors the hearing shouid be freeiy aiiowed, if they can. be made withput injustice to the other side." 4 What is deduced from the above authorities is that before granting the order of amendment to pleadings the Court must be satisfied that: (1) The application is made before hearing. (2) The amendment is necessary for the purpose of determining the real questions in controversy between the parties; and (3) Such amendment can be made without causing injustice to the . other party. These have been restated in case of Equity Bank (Tanzania) Ltd, (supra) at pages 3-4. In James Funke Gwagilo v Attorney General [2004] TLR 161, the CAT stated the function of pleadings. It also touched upon on amendment of pleadings in the following: "Ifa party wishes to piead inconsistent facts, the practice is to aiiege them in the aiternative, and he is entitied to arhend his pieadings for that purpose. The need to do sO t may arise at any stage in the triai and if the amendrhent is I ■ ■ ; . the One the Court can lawfully ahd convenientiy accommodate, it wouid be obiiged to consider the same even though not initiaiiy pieaded.. In other words, in order for the issue to be decided it ought to be brought onrecord •5- and appear from the conduct ofthe su/t to have been ieft to the Court for decision" The same is cited in Jovent Clavery Rusiiaka and Other v Bibiana Chacha, Civil Appeal No. 236 of 2020 CAT at Dar es salaam at pages 15-16 of. Looking at the above extract from James Gwagilo's Case (supra), a heed for amendment df pleading may arise at any stage of the proceedings. But the Court is required to determine whether it is lawful and convenient to allow the amendment. If it is satisfied, then the amendment is allowed. Two perquisites are observed here: first, lawfulness, and second, convenience. The latter depends dn the circumstance of the case. It brings in discfetion ■ to the Court. The lawfulness here cOnnotes the conditions prescribed in Order VI Rule 17 bf the Civil Procedure Code and the case bf George M. Shambwe (supra).( In the present case, if we consider whether it is lawful to grant the order for amendment of the pleadings by matching the conditions found in Order VIRule 17 of the Civil Procedure Code and in the case Of GeorgeM. Shambwe (supra) and what is averred in the affidayit it is conspicuous that the applicatian to amend the pleadings came a little too late as the hearing alfeady commenced. The Plaintiff has filed her witnesses' statements. It means s examination in chief has begun. This contravenes the first conditions that the application should be made before hearing in the main suit commences. The Applicants have failed to acknowledge this fact in their affidavit and repiy to counter amaavit. Whether the Court should order departure to the scheduling orders? For the Court to order departure to the scheduling orders set forth it shbuld be satisfied that the hearing has not commenced, the circumstances make it necessary for such departure and that the order is not prejudicial on the other party. It is surprising that the affidavit in support of application is not directed towards substantiating the conditions set in the law. Instead it is loaded with dbtails on counterclairri and issuesof breach of contract and allegations of fraud. These are alien to the conditions for granting the order for departure to the scheduling orders. It is hot far-fetched' that the Applicants (Deferidants) seem to. have fished the evidence of the RespOrident (Plaintiff) that is why they would like to amehd their WSD arid bring in the‘ counter dairri. They had ample time to apply for the order of departure to the scheduling brder and seek amendment of theif WSD to include the counterclaim. They have neglected to do so timely. With due respect to the Applicants, and since the hearing of the main suit has commenced, a window for departing 7 from the scheduling order is closed. In my view, to grant the order for departure from the scheduling orders at the stage of hearing of the suit is a mockery of justice and prejudicial to the Respondent who has diligently done her examination in chief. It is tantamount to encouraging not only abuse of court process but also to embrace unfair trial. What the Applicants are trying to do is nothing but fishing of evidence from the Respohdent (Plaintiff). Such treacherous practice cannot be condoned 6y this Court. The issueof allowing amendment of pleadings though can be done at any stage of the trial, the power to grant such amendment is left to the Court. In doing so the Court has to cohsider the circumstanCe of a particular case. It is hot automatic that amendment to the pleadings wiil be allowed. Similarly, a departure to the scheduling ofders as per Order VIII Rule 23 of the Civil Procedure Codeshall be done when the Court is satisfied that such departure is necessary in the interest of justice. See also Equity Bank (Tanzaniaj Ltd case (supra) at page 4.1t is the law that the costs in such application shall be borne by the Applicant (s). Nevertheless, the Equity Bank (Tanzania) Ltd (supra) cited by the Applicants is distinguished from this case. The Equity Barik 8 (Tanzania) Ltd case concerned application for amendment of pleadings that was done prior to the hearing stage. In the present case the application was done after the trial has commenced. For that reasOh, the interest of justice will demand that the sought order for departure of scheduling orders be declined. Apjplying for amendment of the WSD to include a counterclaim has tp comply with the conditions stated in George M. Shambwe's case (supra). That the prayer has to be made before heafing cbmmences. In the present case the hearing has already cornmenced. There is no dispute that the Plaintiff'switnesses' statements have already been filed and served upon the Defendants (the Applicants). Unlike intheEqiiity Bank (Tanzania) Ltd c^se (suprp), ih the tahe:W hand the Respondent (the Plaintiff) will be prejudiced because the Applicants have already read the witness statements from thePiaintiff's side. ITiey have seen the Plaintiff's evidehce as the examination in c’nief has already been done. Therefore, the Court refuses to grant the Orde> of departure. from the scheduling order.That said the second prayer of amendment of the WSD in Commercial Case No. 38 of;2022 is egually rejecteci. 9 In totality and for the reasons stated hereinabove the application is declined. The Costs for this application shall be borne by the Applicants. It is so ordered. Date; 24/02/2023 Coram: Hon. U. J. Agatho J. For Applicants: Queen Allen (Advocate) For Respondent: Patricia Tarimo (Advocate) C/Clerk: Beatrice Court: Ruling delivered today this 24th February 2023 in the presence ofQueen Allen, learned counsel for the Applicants, and Patricia Tarimo,the learned counsel for the Respondent. 10