20160627 TZHC Dar es Salaam

'· IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 100 OF 2016 (Arising from Commercial Case No. 68 of 2014) FUTURE TRADING COMPANY LIMITED ........................... APPLICANT VERSUS ECOBANK TANZANIA LIMITED .................................... RESPONDENT 16th July & 1st November, 2016 RULING MWAMBEGELE, -J.: . · The applicant herein is the plaintiff in Commercial Case No. 68 of 2014 in which the respondent is the defendant. That case is pending hearing in this court all pleadings having been completed. While that suit is pending hearing, on 03.06.2016, the applicant filed an application seeking grant of the following orders: a) That, leave be granted for the applicant/plaintiff to depart and or vary the Scheduling Order issued by the Court on 14.07.2014 with a view to amend the Plaintas well as filing additional witness statement; b) That, leave, be granted for the applicant/plaintiff to amend the .plaint to add the Forensic Report as part of annexure to the Amended Plaint of the said Forensic Report and add facts arising from the said Forensic Report as issued by the Tanzania Police Force; c) Costs of this application to be in the main suit; and d) Any other order(s) that this Honorable Court may deem fit. The application has been taken under the provisions of section 93 and Order VIIIA rule 4 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002, i (hereinafter "the CPC'') and rule 24 (1) and (3) of the High Court (Commercial' Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the Rules"). It is supported by an affidavit affirmed by one Abubakar Suweid;! principal officer of the applicant company. The application was argued before me on 20.07.2016 during which Mr. Deogratias Lyimo and Mr. Themistocles Rwegasira, both learned counsel, joined forces in a~vocating for the applicant while Mr. Martin Matunda, also learned counsel, advocated for the respondent. The learned counsel for the parties had earlier filed skeleton written arguments ahead of the oral hearing as dictated by rule 64 of the Rules. Both sides sought to adopt the contents of the affidavit and counter-affidavit (as the case may be) and their respective skeleton written arguments. This is a ruling thereof. Let me state at this juncture that this ruling ought to have been pronounced on 16.08.2016 but because I was out of the station for two consecutive months for a special assignment upcountry which special assignment ended on 22.09.2016, it could not be pronounced as planned. Arguing for the application and having adopted the affidavit and skeleton arguments, Mr. Lyimo, learned counsel submitted on the two prayers as seen in the Chamber Summons; to depart from the scheduling order and to amend 2 the pleadings the reasons whereof have been. stated in the affidavit of Mr. Abubakar Suweid. He submitted that sufficient reasons have been stated in the affidavit and skeleton arguments to grant the orders sought. He cited Motohov Vs Auto Garage Ltd (1971) HCD n. 81 in which it was held that making an amendment is ·not merely a power of the court but a duty so that substantive justice will be made. He stressed that the basis of the application is the inclusion in the plaint the details of the Forensic Report which wasi ; obtained after the suit was filed. The main issue in the suit, the learned counsel argued, is who altered the documents. Thus the forensic report will not bring in the suit new facts. He therefore prayed that the application be[ allowed so that substantive justice is done. On the other hand, Mr. Matunda, learned counsel for the respondent: strenuously argued against the application. The learned counsel, also having' adopted the counter-affidavit and skeleton arguments earlier filed, argued that the intended amendments are irrelevant to the facts in issue. First,; forgery was not at all pleaded in the plaint and the documents intended to bei introduced talk about forgery. He added that the introduction of the forensiq ; report contradicts the entire cause of action because in the plaint it is alleged that the money was transferred through electronic banking. Secondly, the learned counsel for the respondent submitted that the intended amendment will bring up new facts to which the respondent has never been given any opportunity to respond. And given that they intend to add another witness and given that the respondent filed her witnesses' statements on the basis of the pleadings which were available.. ,The procedure will, therefore, prejudice the respondents. 3 Thirdly, the learned counsel argued, the intended amendment implicates a third party and who is not a party to the proceedings that he forged the signature but no leave is being sought to join that third party. The prejudice here is that the applicant wants to prove her case through a third party who will not be there to defend his case on whether he forged the documents or not. That will prejudice the respondent in the allegations which are criminal in nature. Fourthly, the learned counsel went on, the intended amendment will introduce a new cause of action; that money was transferred through the documents they intend to introduce through the forensic report. Finally, the learned counsel argues that the amendment is being brought so belatedly when the suit is ripe for hearing. Rejoining, Mr. Lyimo stated that amendment of pleadings can be made at any time. Thus the question that the respondent has filed the statements of witnesses does not arise. · He added that the person being tracked . in the forensic report intended to be introduced in evidence is one Stella Malekia. She is a witness in the case and she has filed her statement thus whatever she did as reflected in the forensic report, she did so as an employee of the respondent and therefore there cannot be a separate cause of action against her. And Mr. Rwegasira, reinforcing Mr. Lyimo's arguments, underlined that the matter was reported to the_ police and the forensic report was not yet out. He stressed that courts in this country have been allowing amendments as was the case in Shivji Vs Pellegrini(1972) HCD n. 76 wherein it was stated that amendments of pleadings are made to make matters clear; to clarify the pleadings in the interest of justice. 4 ' . I· have considered the learned arguments by both learned counsel for the parties. I should now be in a position to confront the matter on which the learned counsel for the parties have locked horns. Let me start by stating that the provisions of rule 24 (1) and (3) of the Rules under which the application has, inter alia, been made allows an amendment of pleadings at any stage of proceedings. Sub-rule (1) of rule 24 provides thus: "The Court may, at any stage of the proceedings, allow the plaintiff or any party to the proceedings to amend the plaint or pleading, on such terms as to costs or otherwise as may be just and in such manner as it may direct." And the purposes . for which such amendments may be allowed are stated in . sub-rule (3) of the same rule as: "The Court's order of amendment under this rule shall be for the purpose of: (a) correcting any defect or error in any proceedings; or (b) determining the real question in controversy or to achieve justice between the parties." The contents of this rule are a recitation of Order Vl Rule 17 of the 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, 5 and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." According to case law, amendment of pleadings should be freely allowed if they can be made without injustice to the other side and for the purpose of determining the real questions in controversy between the parties. That this is the law has been stated in a number of cases. Some of the cases are shivji and Motonov which have been cited by the counsel for the applicant and Eastern Bakery Vs Castelino [1958] EA 461. However, despite that liberal statement, not every amendment will be permitted by the court. Mulla: the Code of Civil Procedure (18 th Edition), discussing the provisions of Order VI rule 17 of the Indian Code of Civil Procedure which is in pari materia with our Order VI rule 17 of the CPC, lists down the conditions under which such amendment will be refuses as: 1. If it is not necessary for deciding the real question in controversy; 2. If it will take away from the defendant a legal right which has accrued to him by lapse of time; 3. If it will introduce a totally different, new and inconsistent case or its effect will be to substitute one distinct cause of action for another or change the character of the suit; 4. If the application is not made in good faith; and 5. If there has been unconscionable delay or gross laches And·the ultimate question, so writes Mulla: the Code of Civil Procedure, is: can the amendment be allowed without injustice to the other ~ide, or can it not? 6 I will be guided by the foregoing principles in case law and the legal work of Mulla: the Code of Civil Procedure in determining the controversy in the present application. . . The main reason why the applicant wants to have his plaint amended is that the forensic rep0rt which was pleaded in the plaint was not yet out. The learned counsel for the applicant thus wants to amend the Plaint by including_ i the contents thereof and to annex the said report to the plaint. Mr. Matunda,i- learned counsel has given five reasons why he is vehemently objecting that course. First, that forgery was not pleaded and therefore the intended. I amendment will introduce a new cause of action because in the plaint sought: to be amended, the allegation is that the stolen money was so stolen through I I electronic banking while the amendment of plaint envisaged, through thel . ' '' present application, seeks to state that the money was stolen through the/ documents they seek to introduce. Secondly, that the course will prejudice: the respondent because the applicant intends to add another witness whilei ' the respondent have already responded to the pleadings and filed witnessi statements on the basis of the pleadings available. Thirdly, that the intended amendment implicates a third party that he/she forged the signature but no leave is sought to join that third party. That process would mean proving the case through a third party who will not be there to defend the case. The fourth reason is that the intended amendment will introduce a new cause of action that money was transferred the documents sought to be introduced through the forensic report. And the last reason is that the amendment has been brought belatedly when the suit is ripe for hearing. I think Mr. Matunda is right. However, it seems to me that his arguments and the principles stated abov~ can be condensed to only two questions; that is: 7 one, is the amendment intended to resolve the real matter in controversy? and two, can that be done without injustice to the other party? I have gone through the pleadings, especially the plaint. It is stated in the plaint particularly at para 19 thereof at which the plaintiff pleads to have reported the matter to the police and to the Bank of Tanzania (BoT). The letters to the Police and BoT have been appended to the plaint as Annexture EA 4 collectively. The letter to the police is titled: "TAARIFA YA UPOTEVU WA FEDHA KWA NJIA YA MTANDAO RB - CD/RB/3371/2014" [Bold added]. And the body of letter to the BoT- provides in paragraph 3 thereof that: "On the date aforementioned, the bank on its own and without instruction from our company did withdraw a total of Sixty six Million two hundred two hundred and forty thousand only (Tzs. 66,240,000/=) through internet Banking without our knowledge or informing us on the transaction." [Bold added]. Also appended with the plaint is another letter to the Police. This was a follow-up letter whose contents read in part as: "From the time we made a complain (sic) at the police station, we have not been informed- of any 8 progress. We believe that some of the suspects are within the domain of investigation in the bank. As you may see the amount of money illegally transferred through internet banking is bigger and has made the business to be stranded whereby we are not connected to any internet banking services." [Bold added]. The three letters referred to above have been appended with the present application as well. The hallmark of the foregoing quoted paragraphs in the three letters is that the moneys complained of were withdrawn through internet banking. The evidence sought to be introduced through the intended amendment is that the moneys were stolen through means other than internet banking. Granting an amendment, in my considered view, will mean diverting the course through which the case ought to have been proved. There is yet another reason why the present application for amendment should be refused. There are traces that it has not been made in good faith. I shall demonstrate. After the applicant received the forensic report, she twice unsuccessfully sought to add another witness who would, presumably, have introduced in evidence the said report in the suit. The first application was Miscellaneous Commercial Cause No. 60 of 2015 which was struck out by Mwarija, J. (as he then was - now Justice of Appeal) on 13.04.2015 the applicant having conceded to a preliminary objection to the effect that it was filed under wrong provisions. The second one was Miscellaneous Commercial Cause No. 95 of 9 2015 which was also struck out on ·a preliminary objection raised by the respondent's counsel. Both applications, as gleaned in the respective affidavits which supporting them had the intention to introduce the forensic reports; the subject matter of the amendment sought in the present application. The two attempts having proved futile, the applicant has come up with the present application seeking to, inter a!ia, amend the plaint with a view to introducing the same forensic report. The present application is, I think, not made in good faith. It is intended to introduce the forensic report which did not manage to sail through vide the two applications. Simply put, it intends to introduce the forensic report through the back door. Another reason why the present amendment should be refused is that it will have the effect of restarting the case afresh thereby making delay of the time during which this case is supposed to live in this court. I say 'so because granting the application will have the effect of allowing the applicant to file an amended plaint to which justice will demand that the respondent should reply through a Written Statement of Defence and ultimately, perhaps, a Reply to the WSD by the applicant. It will also mean to conduct a fresh First Pre-Trial Conference, Mediation and Final Pre-Trial Conference. In my view, re- opening of pleadings will do more injustice to the parties than justice. It is in the interest of justice that cases should be litigated timely, without delay and must come to an end. The present application, to say the least, has not been made in good faith. Along with the foregoing arguments, I wish to state at this juncture that the purpose for which the scheduling conferences_ were introduced in the CPC was to expedite proceedings. What is done at the final pretrial confere~ce is 10 . ' to prepare the suit for hearing. During the first pretrial conference parties, inter alia, commit themselves that there will be no further applications. That is what was done on 14.07.2014 during the First Pre-Trial Conference of this case. Thus, much as I agree that amendment of proceedings is permissible at any time of proceedings, unless it is extremely necessary, the court will be very reluctant to allow an amendment after the scheduling order, otherwise the purpose for which the amendment (on scheduling orders) was introduced in the CPC will be defeated. For what has been stated above, on the balance of probabilities, I find no merit in the present application. This application for amendment of pleading is refused. It is refused with costs to the respondent. Order accordingly. DATED at DAR ES SALAAM this 1st day of November, 2016. J. C. M. MWAMBEGELE JUDGE 11 IN THE HIGH COURT OF TANZANIA {COMMERt;:IAL DIVISION) AT DAR ES SALAAM MISCEl.LANEOU:S COM,MERCIAL CAUSE NO. 2 OF 2016 (Arising from Cornmercial Case No. 240 of 2014) MWANANCHI INSURANCE COMPANY LTD-~ ...................... APPLICANT i-:·: · ·vERSUS THE COMMISSIONER FOR INSURANCE ......•................ RESPONDENT> 25 th May & 27 th June, 2016 RULING :-·.-\·•· ,,_.' .. MWAMBEGELE, J.: ~ -· ' This is a ruling on a preliminary objection raised against the application for : extension of time within which to file a Bill of Costs in respect of Commercial -· Case No. 240 of 2014. The application which is made under sections 14 (1) ~ of the Law of Limitation Act, Cap. 89 of the Revised Edition, 2002 and 30 of the Civil Procedure Code Cap. 33 of the Revised Edition, 2002 (hereinafter : "the CPC'') is supported by an affidavit sworn by Hussein Kitta Mlihga, from whence the objection emanates. Along with its counter affidavit, the · respondent, through the services of its legal representative Ellen Rwijage, "- · · State Attorney, raised a preliminary point of objection that: 1 "The Affidavit in support of the Application is defective for being sworn by an unauthorized deponent" The preliminary objection (hereinafter "the PO'') was argued before me on 25.05.2016 during which the applicant and respondent had the representation of Mr. Hussein Kitta Mlinga, learned counsel· and Mr. Gabriel Malata, learned Principal State Attorney assisted by Mr. Paul Ngwembe, learned · counsel; respectively. Both parties had filed their skeleton written arguments ahead of· the oral hearing as dictated by rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (hereinafter "the·· Rules''). Adopting his skeleton arguments and arguing in support of the objection, Mr .. - Malata, learned principal state A~orney, premises his contention on the cases of St. Bernard's Hospital -Company Limited Vs Dr. Linus Maemba Miu/a Chuwa, Commercial Case No. 57 of 2004 (unreported) and Sudhir ·. Lakhanpa/ Vs De/phis Bank {T) LTD and 2 Others, Civil Appeal No. 72 of 2004 (CAT unreported) as well as Order XXVIII Rule 1 of the CPC. His primary argument is that authority to commence suits on behalf of corporate persons like the applicant should be express and not merely perceived and therefore that Hussein Kitta Mlinga who affirmed the affidavit in support of the application .is an unauthorized person to depone on behalf of the applicant, because he (Hussein Kitta Mlinga) is neither a secretary, director nor principal officer of the applicant company. The learned principal state attorney maintains that, having been not duly authorized to depone the affidavit supporting the application and having been not duly authorized to. file 2 this application on behalf of the applicant company, this court should be pleased to dismiss the application with c::bsts; · In response, Mr. Mlinga, learned counsel for the applicant, adopting his skeleton arguments too, grounds. . '.·· :, . his. arg~rnent on three authorities namely ' . .-• .' Mukisa Biscuits Vs West .. · End DistrfQutors ',).- . [1969] EA 696, the decision by ·;,:; . •. my Brother at the Bench Makaramba, J. in PLASCO Ltd Vs EFAM Ltd Vs Fatma M. Rweyemamu,Commerci.al _Cqse.No. 60 of 2012 (unreported) and• , · ·· Order XIX Rule 3 of the CPC, primarily maintains that the. point raised does not amount to a prelim_inary pain~ _of o~jection because the question as to ,: whether the deponent is or is not authorized by the applicant company is a question of fact, that taxation proceedings are extension of the proceedings that gave rise to the Bill of Costs and therefore there is no need of special resolution, that the facts deponed in the affidavit are within the knowledge of.• the deponent because he was the one who conducted the hearing of the matter from which taxation arises ·and therefore the preliminary point of <_, objections should be dismissed with costs. In a short rejoinder Mr. Malata, learned.Prihtipal State Attorney, sticks to his guns stating that on the basis of the said authorities, there is a requirement .. . -----~..:~· of a company resolution to· authorize Mr. Mlinga to affirm the affidavit in. •-•--,♦ _..:;:__•.L•- -~' support of the application as well as file the app,lication for extension of time to file the Bill of Costs. He added that the learned counsel for the applicant· should have appended the ·said resolution to the skeleton submissions after . receiving their concern or should have filed a supplementary ·affidavit to prove that there is a company resolution to that effect. Failure to do that, stressed the Principal State Attorney, would suggest that there is no such authority · 3 from the applicant company. He finally _reiterated the prayer that the · application should be di~missed with costs-.. I have l1eard the learned ~ontending views by counsel for both parties with · keen interest and I must say outrightly that. this kind of preliminary is no · -· • · _., · ,. longer in the list of _hard. issues neither a topical one to dese~ve consumption of the court's precious· time. As such, I will not be detained much -by it. With regard to there being·· no authority to depone and sign ari affidavit by the applicant's couns.el~ I unflinchingly agree with the learned counsel for the applicant that the same fa a factual matter deserving an inquiry and as such .. . . . . . not a preliminary objec.tion in the fight of the oft-cited Mukisa Biscuits case. The case has religiously been followed by courts in this jurisdiction. One such case, among many others; is the Soit$;Jmbµ Village Council Vs Tanzania Breweries Limited &·.:Another,_·· Civil Appeal No. 105 of 2011 (CAT .... , unreported). In the Soitsambu_;V,illager th:~:Court.of Appeal observed: ·"Where a court is .to _investigate .facts, .such an issue cannot be. raised ·as a. prefiminary _objection on a point of law ... It will treat a.s a preliminary objections only those points that are pure law, unstained b)/facts or evidence·... " · The learned Principal State Attorney bases his ·arguments in· favour of the preliminary point of objection on the :absence of the company a resolution to institute the application and as ·such. that the deponent who is the learned counsel for the applicant is not authorized· and· not fit to depone and file this application for extension of time to .file -the·Bill. of Costs. To me, all these are matters that may be proved by facts; requiring· evidence to establish and 4 therefore disqualifying this point as a preliminary point of law in the light of ~,_ the principle set out in the oft-cited Mukisa Biscuits which has, as already J alluded to above, been religiously followed by courts in this jurisdiction. The :.: . -· ratio decidendi of that landmark decision is that a preliminary objection has to·' : be a pure point of law and is argued on assumption that all facts are correct. It is not a preliminary objection if there is need for evidence to ascertain a. -fact. Thus, on this point, I am at one with my brothers at the bench .. Makaramba, J. in the PLASCO case (supra) and Mruma, J. in Resolute-•• .. Tanzania Limited Vs LTA Construction {Tanzania} Limited and 3 Others, Commercial Case No. 39 of 2012 (unreported) that this is none of· the issue that can be raised as point of law since ·it needs. investigation by· · evidence to be established. ;: Before I pen off, I wish to remind the learned Principal State.Attorney that the'': position in St. Bernard1s Hospital has long· been departed by this court. If, ... · anything, it has never or, rath~r; h~rdly been follo:wed. In Arcopar {O.M.J S.A Vs Harbert ·Marwa and Family & 3 Others, Civil Application No. 94 of 2013 (unreported), the Court of Appeal, in its fairly ir recent ruling handed down on 12.12.2014, adopted as good_ practice the principles laid down in the Canadian case of Fisken Et Al Vs Meehan (1876) 40, U C Q.B. 146) to the effect that where there are conflicting decisions of , equal weight, the court should follow the more recent decision and Campbell Vs Campbell (1880) 5 App. Case 787 to the effect that where two cases cannot be reconciled, the more recent and the more consistent with general principles ought to prevail. On the strength .of the Arcopar case which is binding upon me, I am confident to find and hold that the St. Bernard's Hospital case, on the question whether or not fail_ure to seek and obtain the 5 sanction of a company to institute a suit or application, as the case may be, is no longer good law. The position on the point in 'this jurisdiction is now fairly settled. - For the reasons stated •above, I deem there to be no cogent reasons to proceed further with the rest of the arguments by the learned counsel for the parties. This PO is overruled with costs to the applicant. Order accordingly. DATED at DAR ES SALAAM this 27h day of June, 2016. J. C. M. MWAMBEGELE JUDGE 6