20161101 TZCA 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 ···~-:~~'* ~,,.,,.,,- / .,p/ l.AJl..',,,._,, _. : MWAMBEGELE, l.: _.....,1' The applicant ~erein 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 Plaint as 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 -(hereinafter "the CPC") and rule 24· (l} 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 20.0i2016 during which· Mr. Deogratias Lyimo and Mr. Themistocles Rwegasira, both learned counsel, joined forces in advocating for the applicant while Mr. Martin Maturida, 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 ~ssignment 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 J r• i' 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 skeletoh 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 was 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 ·cm.i~~el, also having • . . ,. • I , , , . 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 be introduced talk about forgery. He added that the introduction of the forensic 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 forg_ed 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. i ! Finally, the. learned counsel argues that the amendment . . is being brought so; . ! belatedly when the suit is ripe for hearing. Rejoining, Mr. Lyimo ?tated that amendment of pleadings can be made at anV: time. Thus the question that the respondent has filed the statements of: _witnesses does not arise. He added that t~e 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 it • 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 a/ia, been made allows an amendment of pleadings at . any stage of proceedings. Sub-rule (1) of rule 24 provides thus: 0 "The Court may, at any stage-·otth; 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 . inI . . ! . 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 rul.e 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 side, 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 report which was pleaded in the plaint was· not y~t out. The learned counsel for the applicant thus wants to amend the Plaint by including the contents thereof and to annex the said report to the plaint. Mr. Matunda, learned counsel has given five reasons why he is vehemently objecting that course. First, that forgery was not pleaded and therefore the intended amendment will introduce a new cause o_f action because in the plaint sought to be amended, the allegation is that the stolen money was so stolen through electronic banking while the amendment of _plaint envisaged,

through the 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 while the respondent have already responded to the pleadings and filed witness 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. l think Mr. Matunda is right. H·owever, it seems to me that his arguments and the principles stated above ca~ 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 ~JIA 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 • r 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 11 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 wit~drawn 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 oughtto 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. Alter the applicant received the forensic report, she twice unsuccessfully · sought to add another witness who would, presumably, have introduced in eyidence 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 prelimi~ary 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 th~ I respondent's counsel. Both applications, as gleaned in the respective I I affidavits which supporting them had the intention to introduce the forensiq reports; the subject matter of the amendment sought in the present application.· · The two attempts having proved· futile, the applicant has come up with theI I present application seeking to, inter alia, amend the plaint

with a view td 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 intendsl I to introduce the forensic report through the back door. i' . ! Another reason why the present amendment should be refused is that it will\ . . I have the effect of restarting the case afresh thereby making delay of the timei during which this case is supposed to live in this court. I say so because! . . i granting the app_lication wrll have the effect of allowing th1= applicant to file ani amended plaint to which justice will demand that the respondent should replyj through a Written Statement of Defence and ultimately, perhaps, a Reply to! the wso· 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 conference is 10 to prepare the suit for hearing. During the first pretrial conference parties, inter a/ia, commit themselves that there will be no further appljcations. 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 tPC will be defeated. For what has been stated above, on the balance of probabilities, I find no merit in the present application. This applicationJor 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