hi bros canvas and tents limited and another vs i and m bank tanzania limited 2021 tzhccomd 2062 30 april 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO 146 OF 2020 (ARISING FROM COMMERCIAL CASE NO.3 OF 2019) HI BRO'S CANVAS & TENTS LIMITED................... 1st APPLICANT PARVEZ ABDULHUSSEIN HIRJI............................ 2nd APPLICANT VERSUS I & M BANK TANZANIA LIMITED........................ RESPONDENT. Date of Last Order: 29/03/2021 Date of Ruing: 30/04/2021 RULING MAGOIGA, J. The applicant, HI-BROS CANVAS AND TENTS LIMITED by way of chamber summons instituted the instant application under the provisions of Rule 2(2) and Rule 24(1) (3) (a) of the High Court (Commercial Division) Procedure Rules, G.N. 250 of 2012 read together with Rule 23 of the Civil Procedure Code (Amendment of the First Schedule to the Rules) G.N. 381 of 2019 praying that this honourable court be pleased to grant the following orders, namely:- a. This honourable court be pleased to grant leave to the applicant to amend their pleadings so as to correct the discrepancies ensued vide i advancing plausible justification undergird the written statement of defence and counter claim thereto for the interest of justice; b. That this Honourable court be pleased to allow the applicant's to depart from the Scheduling Conference set forth by this Honourable court. c. Costs; d. Any other orders and /or reliefs that this Honourable Court may deem just and fit to grant. The chambers summons was accompanied by the affidavit affirmed by Parves Abdulhussein Hirji stating the reasons for the grant of the orders sought in the chambers summons. Upon being served with the chamber summons and accompanied affidavit, the respondent filed a counter affidavit sworn by Clement John Kagoye stating the reasons why this application should not be granted. The applicants are enjoying the legal services of Mr. Benjamin Mtwanga, learned advocate. The respondent is equally enjoying the legal services of Ms. Hamida Sheikh, learned advocate. The application was argued by written submissions, which I had an opportunity to read with all my legal consciousness. I recommend the learned advocates for the input. The applicants prayed this court to depart from the scheduling conference order given on 18/03/2020 and advanced one reason that the intended 2 amendment is aimed to correct the discrepancies ensued vide advancing plausible undergird the written statement of defence and counter claim thereto for the interest of justice. In their affidavit affirmed by the second applicant, in particular, to pargraph 5 the applicants pointed five points worth for the grant of the application which are; revocation of power attorney and its effects, freezing the applicant account, default in repayment of the loan and revision of the heads of damages and amount. In his submissions in support of the application, the learned advocate for the applicants argued the reasons to consider when an amendment is sought but never touched on the reason advanced in paragraph 5 of the affidavit. On the other hand, the respondent through her learned advocate vehemently opposed this application on the reason that what is contained in paragraph 5 of the affidavit are opinion, arguments and conclusions which by themselves do not warrant and justify a second amendment after entertaining the first amendment which has all what is required of. The learned advocate for the respondent in her written skeleton arguments reminded the court that on 19th September, 2019 the applicants prayed and were granted leave to amend their defence to without objection include counter claim which they did. According to the learned advocate for the respondent, the second prayer for amendment is prayed as delaying tactic and blatant abuse of the court process. In her view the intended amendment do not meet the test of amendment envisaged under Rule 24 of this court's Rules. The learned advocate went on to argued that 3 amendment, among others, is pegged on change of advocate which itself per se cannot be a ground. Based on the above reasons, the learned advocate for the respondent invited this court to dismiss this application with costs. I have carefully considered the chamber summons, affidavit, counter affidavit and the rival written skeleton arguments very careful and the relevant law, in particular, the provisions of Rule 24 of the High Court (Commercial Division) Procedure Rules 2012 as amended by G.N.107 of 2019 and I am with certainty inclined not to grant this application for the following reasons; one, the discrepancies intended to be amended as righty argued by Ms. Sheikh, and rightly so in my opinion, are opinion and arguments on the part of the applicants, which by themselves are not grounds for ordering an amendment. Two, On 19th September 2019, this court allowed amendment and same when read accommodated all what the counsel for the applicants wants to amend, as such making this application other than an abuse of the court process. Three, going by the affidavit and the argument by the learned advocate for the applicant no discrepancy was pointed out in the pleadings intended to be amended rather than just general arguments not envisaged by law. Four, this suit was instituted way back in 2018 and the first amendment was sought after a year and 9 months and this second prayer is as well instituted after another year. This is not only against the mission and vision of this court but same I can certainly say is intended to delay the justice to this case, nj 4 In the totality of the above reasons, I hereby find the instant application devoid of any useful merits and same must be and is hereby dismissed with costs. It is so ordered. Date at Dar es Salaam this 30th April 2021. 5