morogoro canvas mill 1998 limited vs tanzania electric supply company ltd 2008 tzhc 251 10 june 2008

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 7 OF 2008 BETWEEN MOROGORO CANVAS MILL (1998) LIMITED................................................... PLAINTIFF VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LTD.........................................DEFENDANT RULING ORIYOr 3. The ruling is in respect of a Chamber Summons lodged by TANESCO, the defendant in the main suit. It is an application for leave of the court to amend its Written Statement of Defence. The application is made under the provisions of ORDER VI RULE 17 of the Civil Procedure Act, [Cap 33, R.E 2002]. A copy of the Draft Amended Statement of Defence is annexed to the supporting affidavit of one of the defendant's Principal Officers, Felchesmi Jossen Mramba. l The reasons for the application are as set out in paragraphs 4, 5 and 6 of the affidavit. It is stated that at the time the applicant filed its Written Statement of Defence on 15/2/2008, it was common knowledge that the defendant had a claim of shs. 606,265,753.30 against the respondent. The claim due to the applicant was for an unpaid value of electricity consumed by the respondent. The applicant further states that initially it was of the view that it would defend the suit initiated by the respondent, then institute its own suit against the respondent for its due recovery. However, subsequently, the defendant engaged the services of the law firm of Mkono and Company advocates to take over the conduct of its defence. It was at that stage that the applicant was then advised by Captain (rtd) Kameja, learned Counsel, of Mkono and Company Advocates, that it is prudent and proper for the applicant to raise its claim in the Written Statement of Defence by way of a counter­ claim. Using the services of Mr. D. Kesaria, learned counsel, the plaintiff/respondent opposes the application through the counter affidavit of one Arif Haji, its prinicipal officer. The respondent states that the basis of its opposing the application is because, if allowed, it will contravene the law. It is stated that the filing of pleadings was finalised since February 2008 and the application is for a new cause of action in the form of a Counter Claim and not to amend the Defence already in court, as it will be illegal and it is time barred as well. In support of the application, the applicant submits that there are two tests to be applied by the court in considering an application for leave to amend pleadings. The first test is whether the proposed amendment helps to raise the substantial questions in controversy between the parties. The second test is whether the proposed amendment will cause unjustice to the other side which can not be compensated for by way of costs or otherwise. On the first test, the applicant submits that the proposed amendment in this case will facilitate dispensation of substantial justice by the court. On the second test the applicant submits that there will be no injustice occasioned to the respondent by the amendment, which cannot be compensated by way of costs. The applicant maintains that the counter claim is not an independent or a stand alone pleading but it is part of the Written Statement of Defence. It states that it is only because the counter claim was omitted in the Defence already in court that the application to amend the Defence to include the counter claim has to be made. To support its case, the applicant relies on Order VI Rule 17 of the Civil Procedure Act, and two decisions of this court. The decisions cited are MOTOWON vs AUTO GARAGE LTD. AND OTHERS (1971) HCD 81 and THE ATTORNEY GENERAL vs D. P. VALAMBHIA and ANOTHER, HC. C.C. 201/2003, DSM. Zone (unreported). The respondent is not persuaded by the applicant's arguments. It argues that the application to amend Written Statement of Defence in order to include a counter claim amounts to an application for extension of time to file a counter claim. Further, it is argued that by doing so after pleadings were closed in February will lead to a contravention of Order VIII rule 1 (2) of the Civil Procedure C Act as amended by GN 422/1994. The respondent states that Order VIII rule 1 (2) as amended imposes a strict deadline for filing Written Statement of Defence; that is, defence must be filed 21 days from the initial 21 days. It submits that the applicant cannot be granted leave to amend defence after the expiration of a total of 42 days. In support of the arguments the respondent relies on the proviso of Order VIII rule 1 (2) of the Civil Procedure Act, one decision of the Court of Appeal and two decisions of this court. It is obvious here that the positions taken by parties are poles apart. The applicant states that it is making an application for leave to amend its Written Statement of Defence under Order VI rule 17 of the Civil Procedure Act. On the part of the respondent, it is argued that the application is in fact an indirect application for orders for the extension of time to include a counter claim in the defence. The respondent's argument sounds novel but it is quite interesting. Let me start by stating that its arguments as far as the limitation period to file Written Statement of Defence is concerned are based on a correct statement of the law as well as the court decisions cited thereon. It is common knowledge that' before GN 422/1994 amended Order VIII rule 1 (2), the proviso to sub-rule (2) which limits the period to file defence to within 42 days only; was not in existence. The legal position before the amendment was that extension of time to file defence was left to the discretion of the Court and/or to the consent of parties. It defies logic if GN 422/1994 was intended to make similar restrictions to the rules governing amendments of pleadings but does not state so. It is my view that in as much as the respondent's arguments above appear novel and interesting; there is a } nexus missing between the_1994 amendment to. Order VIII rule 1 (2) and Order VI ruje 17 of the Civil Procedure Act. Unfortunately the respondent has not gone far enough in its arguments to bring out the missing nexus. Otherwise, if GN 422/1994 was intended to make similar restrictions to the. rules governing amendment of pleadings it would have stated so as it did for other provisions of the Civil Procedure Act. In the absence of such a nexus, the court is not convinced that the rules governing extension of time to file defence as amended by GN 422/1994, are by some "elastic" extension applicable to amendment of pleadings. In any event, the respondent has not cited any law or any court ft •* ^ decision in support of its arguments in that respect. ( i Let me now revert to the provisions of Order VI rule 17 of the Civil Procedure Act which states the following:- "The court may at anv stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as mav be iust. and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." (Emphasis supplied) As to what constitutes an amendment or amended pleading: the Civil Procedure Act provides a definition of a "pleading" only under Order VI rule 1 thereof. Guidance is sought from the BLACK'S LAW DICTIONARY, 7th Edition at page 1173 where "amended pleading" is defined as hereunder: ’7\ pleading that replaces an earlier pleading and that contains matters omitted from or not known at the time of the earlier pleading." (emphasis supplied) Further An Amendment is defined as:- "...the correction of an error or the supplying of an omission in the process of pleadings. ...matter of amendment purely is matter that might well have been pleaded at the time the pleading sought to be amended was filed, but which through error or inadvertence was omitted or misstated. It has been declared that the allowance of amendments is incidental to the exercise of all judicial power and is indispensable to the ends of justice" Eugene A. Jones, Manual of Equity Pleading and Practice 68 (1916). (emphasis supplied) The learned authors of MULLA writing on the Indian Code of Civil Procedure, Order VI rule 17, 16th Edition, Vol. II at page 1823 sets out some guiding principles to be considered when dealing with an application for the amendment of pleadings. Two of the principles are basically applicable to most applications for amendments. They state as follows (i) All amendments should be allowed which are necessary for determination of the real controversies in the suit (ii) The proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs. Therefore, the issues for determination by this court are whether, if granted, 1. The amendment will enable the real questions in issue between the parties to be raised in the pleadings. 2. The amendment will not occasion injury to the opposite party. 3. And in the event 2 above is in the affirmative; Whether such injury can be sufficiently compensated for by costs. Applying the issues to the facts of the case, the first issue is answered in the affirmative. The source of dispute between the parties in the main suit is the disconnection of the supply of electricity to the respondent's premises because the latter allegedly defaulted to pay shs. 606,265,753/30. The amendment of the Written Statement of Defence being sought to include a counter-claim will bring out the real dispute between the parties. ^ I 1 Issue no. 2 is answered in the negative. The raising of a claim of shs. 606,265,753/30 in the counter-claim will not occasion any injury to the respondent. The counter-claimed sum is not a new claim but is in the common knowledge of parties since the dispute arose. On the contrary, granting leave to amend will benefit both parties as it will avoid multiplicity of suits together with attendant costs and time, by having a separate suit filed on the counter-claim. Order VI rule 17 of the Indian Civil Procedure Code is in pari materia with our Order VI rule 17 reproduced above. The legal position here is similar to that pertaining in India as amply illustrated by the learned authors of MULU\ above. k ^ In the case of MOTOHON vs AUTO GARAGE LTD. and OTHERS (1971) HCD 81; the late BIRON, J. had this to say with regard to the provisions of Order VI rule 17 of the Civil Procedure Act: t "Very few cases are altogether alike, and each must be decided on its own merits. The over­ riding principle is laid down in the very rule itself’ that; 'The court may at any stage of the proceedings allow ... in the controversy between the parties' The making of amendments is not really a matter of power of a court but its duty so that substantial justice may be done." On the rationale of granting leave to amend pleadings, this court had the following to say in the case of ATTORNEY GENERAL vs D.P. VALAMBHIA and ANOTHER HCC NO. 201 of 2003, HC, DSM. Registry (unreported). "The rationale behind Order VI rule 17 is that pleadings must raise all matters in dispute to enable a court determine the real question in controversy between the parties. In addition, it will assist in avoiding multiplicity of suits in a court of law." I have gone into great lengths to show that the counter-claim intended to be included in the Written Statement of Defence is not a new matter. I have sought guidance from the definitions of the words amendment and amended pleadings. I have also tried to apply MULLA'S guiding Principles and applicable tests before granting leave to amend pleadings. In the result and on the foregoing I am quite clear in my mind that granting the application to amend Written Statement of Defence by adding a counter claim does not contravene any law. And if there is such a law it is neither in the knowledge of the court nor has it been brought to its attention. Accordingly the application is granted. Costs to abide result. aAAAAVv K.K. w iy/o o J JUDGE 10/ 6/2008 2,051 WORDS.