KULWA MASELE JEREMIAH V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CIVIL APPEAL NO. 15478 OF 2024 (Arising from the decision (decree and judgment) Kahama District Court dated 23rd May 2024 in Civil Case No. 17 of 2023, Honourable C.L. Chovenye, SRM) KULWA MASELE JEREMIAH………………………..…...…. APPELLANT VERSUS AKCO TANZANIA LIMITED………………………...……. RESPONDENT JUDGMENT 19th August & 04th October 2024 MASSAM, J.: The respondent herein, Akco Tanzania Limited, successfully sued the appellant at the District Court of Kahama at Kahama for defaulting to repay the loan according to the term of agreement. The suit after been heard was determined in his favor. The appellant was condemned to pay the defendant Tshs. 16,500,000/= which he was given as a loan. He was also ordered to pay Tshs. 5,000,000/= as a general damage and the costs of the suit. The appellant being aggrieved appealed to this court based on the following grounds: 1|Page 1. That, the learned trial magistrate erred in law in assuming pecuniary jurisdiction of the trial court by creating her own argument that the suit /claim is commercial one. 2. That, having found that the respondent failed to file the amended plaint within time, the learned trial magistrate erred in law in extending time for filling of the same instead of striking it out. 3. That, having found the amended plaint filed on the 12th day of October 2023 to be in contravention of the trial court’s order, the learned trial magistrate erred in law in curing it by applying an overriding objective, instead of striking it out. 4. That, the learned trial magistrate erred in law in to reply her decision on Exhibit P3(loan agreement/contract) of which the alleged witness for both parties has not called in court to testify in respect of the contract. 5. That, the learned trial magistrate erred in law in to rely her decision on exhibit P3 (loan agreement/contract) of which the alleged provider of the alleged loan did not feature in evidence rather, PW1 who was a mere witness to the said loan. 2|Page 6. That, the learned trial magistrate grossly erred in law and fact in holding the appellant liable to pay the alleged loan basing on the exhibit P3 which was contingent one as there was no evidence that the alleged expected money was paid to the appellant by Isaka Health Centre. 7. That, the learned trial magistrate erred in law and fact in denying the request by the appellant of ordering checking of the appellant’s signature on exhibit P3, the appellant having denied it. On 19th of August, 2024, by leave of this court, the appeal was ordered to be argued by way of filling written submissions. The appellant was represented by Mr. Bakari Chubwa Muheza, learned counsel whilst Mr. Goodluck Herman, learned counsel represented the respondent. The counsel for the appellant complied with the court order and file the same but the respondent did not for the reasons best known to himself. Before he started submitting in support of the appeal, Mr. Muheza abandoned the 2nd, 5th and 7th grounds of appeal and remained with the 1st, 3rd, 4th and 6th grounds of appeal. 3|Page Submitting in respect of the 3rd grounds of appeal, Mr. Muheza submitted that it was wrong for the trial court to extend the time to file an amended plaint which was field out of the prescribed time and amended contrary to the order of the court. He submitted further that as the respondent did amend what was not ordered by the court the remedy was to struck out the same and not to cure the said defects by giving the respondent extension of time to file the amended plaint. He referred this court to the case of Tanzania Harbor Authority v. Mohamed R. Mohamed 92002) TLR 76 and Paulo Elias Maro vs. Amin Kibwana Kondo, Civil Case No. 11 of 2021, High Court – DSM where the court insisted the need of adhering to the court orders. He was of the view that overriding principle cannot be applied in our case as the same cannot defeat the provided procedures. I have revisited the proceedings of the trial court and noted that on 28/07/2023, Mr. Goodluck Herman, counsel for the respondent prayed to amend the plaint so that applicant can be party to the case. The court granted the prayer and gave him 14 days to amend the plaint. On 14/08/2023 Mr. Goodluck told the court that he was not able to file the amended plaint within the time as the prescribed time ended on Saturday 4|Page 11th of September 2024. Although, Mr. Muheza prayed for the court to struck out the amended plaint for being filed out of the prescribed time, the court granted Mr. Goodluck’s prayer and for the interest of justice he was given five (5) days to file his amended plaint. Further to that on 05/10/2023 Mr. Goodluck was given another seven (7) days to file the amended plaint following the amendment need to be included after the 2nd defendant being found guilty after the certificate of occupancy pleaded found to be forged. On 13/10/2023 Mr. Goodluck prayed to remove the claim against the 2nd defendant and remained with the 1st defendant only, however, Mr. Muheza raised an objection that the respondent was ordered to amend the plaint on the part of the reliefs claimed but they went further and remove 2nd defendant without being given leave of the court to do so. He said further that the said plaint was also filed out of the prescribed time for the second time. In overruling the said PO, the trial Magistrate held that the amended plaint was filed within the time and he agree with Mr. Muheza that the respondent did amended more than what he was ordered by the court and cured it by the principle of overriding objective instead of striking out the amended plaint. 5|Page Regarding the issue of amendment of plaint, in the case of Jovent Clavery Rushaka & Another vs. Bibiana Chacha (Civil Appeal 236 of 2020) [2021] TZCA 3527 (20 December, 2021) (Tanzlii) the court held that: “It is settled law that pleading can be amended at any stage of the proceeding only to the extent allowed by the court on such terms as may be just and such amendments should be limited to what will be necessary for determine real question in dispute between parties” Guided by the cited authority, the respondent was required to amend what was only ordered by the court and not to add or remove what he like without the leave of the court. As it was held in the case of Santa Lucas School v. Mlelwa, (Rev. Appl. 31 of 2021) [2022] TZHCLD 781 (25 March 2022); whereby at page 5 the court quoted the case of Famari Investment T. Ltd. v. Abdallah Seleman Komba, (Misc. Civil Application No. 41 of 2018) [2020] TZHC 386 (11 March 2020) that: “Court orders are made in order to be implemented; they must be obeyed. If orders made by courts are disregarded or if they are ignored, the system of justice will grind to a halt or if will be so chaotic that everyone will deice to do only that which is conversant to them.” 6|Page Thus, having analyzed the submissions of the counsel for the and the records of this appeal, at the onset, I am in agreement with Mr. Muheza that it was wrong for the trial magistrate to overrule the PO raised by Mr. Muheza that the counsel for the respondent herein (appellant at the trial court) did amend more than what was ordered by the court and the plaint was supposed to be struck out instead of giving them extension of time. Therefore, the 3rd ground of appeal is found with merit. Thus, as the 3rd ground dispose of the appeal, there is no need to determine the remaining grounds of appeal. That being said, the appeal is hereby allowed with costs. The judgment and decree of the trial court is hereby quashed and set aside. Ordered accordingly. DATED and Delivered at SHINYANGA this 4th day of October, 2024. R.B. Massam. JUDGE 7|Page 8|Page