mbezi luxury resort ltd another vs morcops tanzania ltd others 2018 tzhclandd 24 14 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 395 OF 2016 MBEZI LUXURY RESORT LIMITED.......................................... 1st APPLICANT YOHANA HILARIOUS NYAKIBAI............................................. 2nd APPLICANT VERSUS MORCOPS (TANZANIA LIMITED).......................................... 1st RESPONDENT NATIONAL BANK OF COMMERCE LTD................................... 2nd RESPONDENT RICHARD KIMWAGA STIKA................................................. 3rd RESPONDENT The date of last Order: 21/12/2018 The date of Ruling: 14/02/2018 RULING Makuru, J.: This is an application made under Order VIII A Rule 4 and Order VI Rule 17 of the Civil Procedure Code, Cap 33 R.E. 2002 (CPC). The Applicant is seeking for the following orders:- a) The Honourable Court may be pleased to order the departure from the scheduling order to allow the Applicants to amend the plaint in Land Case No. 117 of 2014 between the parties for the interest of justice. b) Pursuant thereto, the Honourable Court may be pleased to grant orders to the Applicant to amend the plaint for the purpose of determining the real questions in controversy between the parties. c) Costs of this application be provided for. i The application is supported by the affidavit of Mr. Yohana Hilarious Nyakibari, the 2nd Applicant. However, in their joint counter affidavit the 1st and 3rd Respondents have raised a preliminary objection on the following points of law:- 1. That the affidavit in support of the application is defective for containing prayers instead of facts. 2. That the affidavit in support of the application is defective for containing facts from a third party who has not sworn another affidavit in support of the said allegations. 3. That the prayers by the Applicants is untenable in law because they totally change the nature of the claim and suit. When the matter was called on for hearing Mr. Mnyele learned counsel appeared for the Applicants while Mr. Kenneth learned counsel appeared for the 1st and 3rd Respondents and Mr. Malimi learned counsel represented the 2nd Respondent. Taking into account that this matter has been pending in court since 2014, this court ordered that the preliminary objections be argued together with the application. Submitting on the third preliminary objection, Mr. Maganga cited the provisions of Order VI Rule 17 of the CPC and stated that the amendment should help the court to determine the issue in controversy. According to him, the prayer under paragraph 4(b) of the affidavit is unmaintainable in law. It is the learned counsel's further submission that in the main suit there is no averment as to who are the owners of the property he intends 2 to incorporate in paragraph 4(b). He therefore contended that since it is not known who is the owner and that there is no intention of joining them, then it will not help the court to determine the matter. On the second preliminary objection Mr. Maganga referred the court to the case of Benedict Kimwaga Vs P.S. Ministry of Health, Civil Application No. 31 of 2000 (Dar es Salaam Registry, Unreported) in which it was held that, if an affidavit mentioned another person, that other person must swear an affidavit, otherwise it will be hearsay. The learned counsel also cited the case of NBC Ltd Vs Superdol Trailer Manufacturing Ltd, Court of Appeal Civil Application No. 13 of 2012 (Dar es Salaam Registry, Unreported) is supported of his argument. The learned counsel went further to quote paragraph two and five of the affidavit in which it is stated that the deponent was swearing the affidavit for the Principal Officer of the 1st Applicant, Mr. P.C. Kwai who was not in Dar es Salaam. According to him, in the absence of Mr. Kwai the averments in the affidavit are nothing but hearsay. Mr. Malimi on his part concurred with Mr. Maganga's position and insisted that the application intends to introduce a new cause of action which was not raised in the main suit. In reply thereto, Mr. Mnyele cited the case of Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distributors Ltd (1969) EA 696 and stated that the 3rd preliminary objection is not a pure point of law and that it has been made prematurely. 3 As for the second preliminary objection again Mr. Mnyele contended that the same has been raised prematurely. According to him, it is for the court to decide. In rejoinder Mr. Maganga reiterated his submission in chief. I have noted that, in the course of his submission Mr. Maganga abandoned the 1st preliminary objection. I have considered the submissions made by both sides in respect of the 2nd and 3rd preliminary objections. As regards the 3rd preliminary objection that the prayers by the Applicants are untenable in law because they totally change the nature of the claim and suit, with respect, I agree with Mr. Maganga and Mr. Malimi. Order VI Rule 17 of the Civil Procedure Code stipulates thus: "The court may at any stage o f the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendment shall be made as may be necessary for the purpose o f determing the real question in controversy between the parties." In the present case, as rightly pointed out by Mr. Maganga that para 4 (b) of the supporting affidavit totally changes the nature of the claim and suit. Furthermore, it seems the subject matter of the proposed amendment was in the mind of counsel for the Applicants when the suit was filed to the stage of closing the Plaintiff's case. It is not indicated that it was something new. Thus, the Applicants ought to have raised it earlier. Failure of which implies that the Applicants are not acting malafide. Thus, the 3rd preliminary objects is upheld. As for the 2nd preliminary objection, looking at paragraph 2 of the supporting affidavit the deponent, Mr. Yohana Nyakibari who is the 2nd Applicant has indicated that he was also swearing the affidavit for the Principal Officer of the 1st Applicant who was bereaved and out of Dar es Salaam. The said Principal Officer of the 1st Applicant ought to have sworn his affidavit or they should have made a joint affidavit. Otherwise, as properly submitted by Mr. Maganga, it amounts to hearsay evidence. This is contrary to order XIX Rule 3 of the CPC. In the circumstances the affidavit is incurably defective. Hence, the 2nd Preliminary Objection is also upheld. In the final result, and for the foregoing, the application is struck out with costs. C.W. Makuru JUDGE 14/ 02/2018 Court: Ruling delivered in court this 14th day of February, 2018 in the presence of Ms. Levina Kagesho, learned counsel for the Applicants and Mr. Malimi, learned counsel for the 2nd Respondent and in the absence of the 1st and 3rd Respondents. C.W. Makuru JUDGE 14/ 02/2018