mwenge gas and lub oil ltd vs university of dar es salaam 2006 tzhc 167 24 may 2006

1 IN THE HIGH COURT OF TANZANIA AT DARES SALAAM CIVIL CASE NO. 311 OF 1999 MWENGE GAS AND LUB OIL LTD................. PLAINTIFF VERSUS UNIVERSITY OF DAR ES SALAAM............. DEFENDANT RULING A.Shangwa,J. On 17/8/1999 , DR. Lamwai for the plaintiff MWENGE GAS AND LUB OILS LTD filed a suit against the defendant the UNIVERSITY OF DAR ES SALAAM claiming for damages for breach of the Lease Agreement which was entered into between the parties on 1/3/1995. On 6/3/2002, Dr. Lamwai prayed for leave to amend the plaint so as to introduce a claim for damages for eviction and for the properties which were confiscated and to exclude the name of the 2nd defendant who was wrongly impleaded. Leave to amend the plaint was accordingly granted by Bubeshi, J (Rtd) and the amended plaint was presented for filing on 28/4/2005. On 5/5/2005, learned counsel for the defendant Mr. Kalolo, Advocate filed a written statement of Defence to the amended plaint in which he raised a preliminary objection stating that the action is barred by limitation, and that the amendment introduces a new cause of action contrary to law. On 13/12/2005, I ordered that the defendant's preliminary objection should be argued by way of written submissions and it was accordingly so argued. These submissions were drawn and filed by M/S M.A. Ismail & Co; Advocates for the defendant and by the Managing Director of the plaintiff company Mr. Wakhill Godfrey Muro. Learned counsel for the defendant submitted that the amended plaint introduces a new cause of action to wit breach of contract and wrongful execution of a High Court Decree in Civil Case 326 of 1997 on the 18/8/1999, whereupon the plaintiff claims Tshs 40 Million as lost cash plus other sums as specific damages. Furthermore, counsel for the defendant submitted that the amendment has unreasonably been delayed as the suit was first instituted in 1999. Some three books by learned authors were referred to me in which the principle to be taken into 4 consideration in allowing the amendment of pleadings were laid down. First, I was referred to Rao & Chittaley in their commentaries on the Indian Civil Procedure Code(16th Edn) Vol. 2 at page 2248 where it is written that "a party is allow ed to make such amendments as m ay be necessary fo r determ ining the real question in controversy or to avoid a m ultiplicity o f suits, provided that there has been no undue delay, that no new o r inconsistent cause o f action is introduced, that no vested right, interest on accrued leg al rig h t is affected and the am endm ent can be allow ed w ithout injustice to the other side". Secondly, I was referred to C.K. Takwan in his treatise titled Civil Procedure, 5th Edn at page 152 where some of the principles which have to be taken into consideration in dealing with applications for amendment of pleadings are mentioned. One of these principles is that "no amendment should be allow ed which am ounts to or results in defeating a legal righ t to the opposite party on account o f lapse o f tim e" Thirdly, I was referred to Mogha's Law of Pleadings, 14th Edn at page 145 where it is provided inter - alia that "an amendment, the effect o f which is to change the cause o f action on which the original su it was based... m ay not ordinarily be allow ed" It was further submitted by learned counsel for the defendant that the plaintiff's claim which enhances the original figure of shs 50 Million to over shs 500 Million in form of specific damages which were never part of the original claim are time barred for having been introduced more than six years from when the cause of action arose. In reply, the plaintiff company's Managing Director Mr. Wakhill G. Muro submitted that the amendment made by the plaintiff did not in any way introduce a new cause of action as alleged by the defendant, and that limitation cannot be raised as a defence against the hearing of his suit. He contended that the amended plaint repeats the right to reliefs claimed against the defendant in respect of the same acts as detailed in the original plaint. He cited the case of Edward Masanja Ng'ahwani Vs Attorney General and Another C iv il Appeal No. 61 o f 2001 (unreported) in which the Court of Appeal of Tanzania stated that an amendment duly made with or without leave takes effect not from the date when the amendment is made but from the date of the original document which it amends. It appears to me that this preliminary objection by counsel for the defendant has been raised belatedly. In my view, the objection that the action is barred by limitation, and that the amendment introduces a new cause of action contrary to law, ought to have been raised when Dr. Lamwai who was representing the plaintiff by then prayed for leave to amend the plaint so as to introduce a claim for damages for eviction and for the properties which were confiscated by the defendant. At that time, one of the defendant's counsel Mr. Kalolo was present and did not object to Dr. Lamwai's prayer. As a result, the Court Bubeshi, J (Rtd) allowed the plaintiff to amend his plaint as prayed. I think Mr. Kalolo was supposed to tell the Court before allowing the plaintiff to amend the plaint that the amendment sought to be made introduces a new cause of action 8 and that introducing such an action would render the original suit time barred. Now, as this Court has already allowed the plaintiff to amend the plaint, the good principles for allowing amendments to the pleadings that are found in the books by learned authors which have been referred to me by Mr. Kalolo cannot be of any assistance to this Court. Those principles are useful in cases where the court has not yet allowed the party to the suit to amend the pleadings and not thereafter. They relate to situations as to when an amendment to pleadings should not be allowed by the Court. At any rate, I am of the view that no new cause of action has been introduced by the plaintiff in its amended plaint. The cause of action in the amended 9 plaint remains the same as the claim in the original plaint. In the original plaint filed in 1999, the plaintiff was pleading for damages for breach of contract i.e. Lease Agreement. In the amended plaint filed in 2005, the plaintiff is claiming for the samething. What the plaintiff has simply done in the amended plaint is to boost the total claim for specific damages to be assessed by the Court from Tshs 190 to over Tshs 500 Million. Another question to be considered by this Court is whether or not the plaintiff's action of increasing the total amount of specific damages from Tshs 190 Million to over Tshs 500 Million following the breach of the Lease Agreement renders the plaintiff's suit time barred. My answer to this question is No. As the cause of action in the original plaint namely breach of the tenancy / Lease Agreement remains unchanged in the amended plaint the question that the action is time barred should not arise. For these reasons, I hereby overrule the defendant's preliminary objection and order that the suit should come for pre- trial conference on 31/5/2006. A. Shangwa,J. 24/5/2006. Delivered in open Court this 24th day of May, 2006. A. Shangwa JUDGE 24/5/2006.