lukani rural cooperative society ltd another vs ms bourbon coffee estates ltd 2005 tzhccomd 42 1 april 2005

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA COMMERCIAL CASE NO. 3 OF 2005 1. LUKANI RURAL COOPERATIVE SOCIETY LIMITED 2. LOSAA RURAL COOPERATIVE SOCIET LIMITED L PLAINTIFFS VERSUS MS. BOURBON COFFEE ESTATES LIMITED.............. DEFENDANT RULING Mr. Lumambo, Advocate, for the Defendants has launched preliminary objections in the Written Statement of Defence as follows: “ (i) That the suit is incompetent before the Court as it contravenes the mandatory provisions of Order VI Rule 15 (3) of the Civil Procedure Code, 1966. (ii) That the plaint is not properly signed in terms of O. VI, Rule 14 of the Civil Procedure Code. ” The Plaintiffs are represented by Ms. Minde, Advocate, who in rejoinder stated as under: - "1. (i) That the omission to state place is noted and the Plaintiffs states that it is curable in terms of Order VI Rule 17 CPC 1966. The Plaintiffs shall seek leave to amend the Plaint so as to show that it was signed in Moshi on 9/2/2005. (ii) That signature by advocate is optional and does not in any way affect the validity of the Plaint. In the alternative and without prejudice the Plaintiffs shall seek leave to amend the Plaint so as to include signature of the advocate.” Clarifying on his preliminary objections, Mr. Lumambo charged that under O. VI, Rule 15 (3)CPC, the date and where the verification is made have to be reflected in pleading and that under Rule 14 the said pleading must be signed by the party and the Advocate while in this case only one party signed and the Advocate did not sign. Mr. Lumambo insisted that these defects, in substance, make the plaint incurable as the word used is “shall. ” On the other hand, also clarifying her response contained in her rejoinder, MS. Minde conceded of the defects on dates and place of verification but prays for leave to amend. On lack of the 2nd Plaintiffs’ signature she insisted that the one who signed is a principal officer who deals with the jointly owned farm by the Plaintiffs and therefore there is nothing amis with that, adding that an Advocate’s signature on a pleading is not mandatory. In the alternative, as she did on the first two elements, she prays for leave to amend if the defects are found substantial. 2 As submitted by Mr. Lumambo and conceded by Ms. Minde, violation of O. VI, Rule 15 (3)CPC is prominently pronounced. The said sub-rule provides: - “The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. ” On the relevant plaint there is no “date” nor “place” indicated. Again, that only one Plaintiff signed the verification is unchallenged. However, on this, with respect to Mr. Lumambo, the same O. VI, Rule 15(1) do not back him up on the quarrel fronted. In part, that Rule provides, “............ every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.” (emphasis mine). The two Plaintiffs are limited liability companies. They have a joint claim. Under O. XXVIII CPC, “In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case”, (emphasis mine). 3 Reading both orders together therefore there is nothing wrong with the verification done by one of Plaintiffs’ principal officer. Next to consider is the absence of the Advocate’s signature on a pleading. O. VI Rule 14 provides:- “Every pleading shall be signed by the party and his advocate (if any): provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf ” Indeed, the plaint simply shows “Drawn and filed by. BS Associates Advocates Tarimos Complex Kawawa Street, P.O. Box 1873, MOSHI.” The same however is not signed. On the whole therefore, Mr. Lumambo’s complaint on violation of O. VI Rule 15(3) CPC (lack of date and place) and also on lack of Advocate’s signature in violation of Rule 14 are fully justified. The only next question to consider is whether these defects render the Plaint incurable deserving only dismissal as impressed 4 by Mr. Lumambo, or whether they are curable by an order for amendment under O. VI Rule 17 CPC as urged by Ms. Minde. With respect to Mr. Lumambo, I don’t subscribe to his submission that legally a plaint with defects as revealed cannot be amended. I have so concluded relying on O. VII, Rule II CPC as amended vide GN. 228 of 1971, whereby a proviso was added as follows:- “11. The plaint shall be rejected in the following cases:- (a) (b) (c) Provided that where a plaint does not disclose a cause of action or where the suit appears from the statement in plaint to be barred by any law and the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a cause of action or, as the case may be, the suit will cease to appear from the plaint to be barred by any law, the court may allow the plaintiff to amend the plaint subject to such conditions as to costs or otherwise as the court may deem fit to impose. ” In my considered view, this proviso caters for the current situation. An order for amendment to remove the said defects will make the current suit 5 “ Cease to appear from the plaint to be barred by any law............ ” Barrage in this case would have been pegged on defective plaint. Reading this rule together with O.VI, Rule 17 CPC which permits an order for amendment to be passed by the court, I hold that MS. Minde’s prayer for leave to amend is meritorious . In conclusion, the preliminary objections succeed in part in that indeed O. VI, Rule 14 and 15 (3) have been violated but the prayer to dismiss the plaint is over-ruled. The plaintiffs’ prayer to amend the Plaint stand allowed. An amended plaint to be filed with the court by 9.00 am on 4th April, 2005. The amendments to be limited to only inclusion of the date, place of verification and signature by the Plaintiffs’ Advocate. L. B. Kalegeya JUDGE Delivered in the presence of both counsel. L. B. Kalegeya JUDGE 1/4/2005 6 Order:- Amended Plaint by 9.00 am on 4/4/2005. The type of amendments to be made do not entail amendment of the Written Statement of Defence as well. 1st pretrial on same date (4/4/2005) at 9.05 a.m. 1/4/2005. Ms. Minde I have a prayer to make. The court order prescribes that we should file an amended plaint by Monday. However, the amendments ordered are just formal as indicated by the court in its order. That being the case, I pray that the court revisit its order and allow my prayer, which I am now making, to effect the required amendments by simply inserting, in long hand, in the current plaint, the place of verification, “at Moshi” between the word “dated” and the word “this” and to add dates and month in the blank spaces, and finally, to sign next to clause in respect of the advocates. This will have completely cured the defects. Mr. Lumambo: No objection. 7 L. B. Kalegeya JUDGE Order; Ms. Minde’s prayer is granted. The order regarding filing an amended Plaint by 4th April, 2005, is vacated and so is the date for 1st pretrial conference. In lieu thereof, Ms. Minde to amend the current plaint by inserting the words “at Mosh?, dates and month and signature of the Advocate where it deserves in long hand. L. B. Kalegeya JUDGE Court;- Counsel are now agreed that as pleadings are complete, the session should be reconstituted into 1st pretrial and scheduling conference which would otherwise be held on Monday, 4/4/2005. L. B. Kalegeya JUDGE Order; (i) Matter fixed at speed track one. (ii) Mediation on 27/4/2005. L. B. Kalegeya JUDGE 1/4/2005 8