20151013 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 8 OF 2013 1.NATIONAL INSURANCE CORPORATION{T) 2.CONSOLIDATED HOLDING CORPORATION (FORMERLY PSRC) ................................................................ APPLICANTS VERSUS 1.JOHANNES JEREMIAH 2.BELTASARZARY L.B. LUKA j .· ....................................... RESPONDENT 3.FREIGHT CONSULTANTS {T) LTD {An application for amendment of a memorandum of appeal) RULING OF THE COURT 29 th September & 16th October 2015 LUANDA, J.A.: This is an application for leave to amend a memorandum of appeal made by the 1st appellant (National Insurance Corporation (t) Ltd). It has been made under Rule 111 of the Court of Appeal Rules, 2009 (the Rules). The application is attached along with the intended version of the amended • memorandum of appeal in compliance with Rule 50 (1) of the Rules. 1 The affidavit of Mr. Samson Mbarnba learned Counsel for the 1st applicant in support of the application reads:- 1. That I am an Advocate of the High Court of Tanzania and subordinate thereto save Primary Courts. 2. That I have the care and control of Civil Appeal No. 61 of 2008 which I lodged on 1(fh June, 2008 having been instructed by the appellants. 3. That as per the Memorandum of Appeal incorporated in the record of appeal the appellants have only three grounds of appeal. 1 ~ copy of the record of appeal is attached and marked annexture NIC'~ 4. That in the course of perusing the record of appeal for the sake of preparation of arguing the same and, having carefully read over and analyzed the Judgment of Hon. Mandia J. (as he then was), I have come to realize that the determination of appeal depends on the amendment of the first ground and addition of one more ground. 1 ~ copy of the draft memorandum of appeal is attached and marked annexture NIC2 '~ 5. That by reason of the aforegoing facts if leave to amend the memorandum of appeal will be granted by this hon. Court, the grounds that will have to be made 2 part of the record of appeal will be those as appearing in the draft as per annexture NIC2 hereinabove stated. ·,, 6. That this affidavit is being sworn to in support of the Notice of Motion. Dated at Dar es Salaam this 21st day of JanuarY✓ 2013. Deponent It is the submission of Mr. Mbamba that they are intending to amend the memorandum of appeal so as the Court to determine the real question in controversial in the appeal. And the intended substituted amendment version of memorandum of appeal which has been annexed provides:- AMMENDED MEMORANDUM OF APPEAL (DRAFT) Pursuant to the order of the Court of Appeal hon, ............ J.A dated .......... . National Insurance Corporation and Consolidated Holding Corporation the above named appellants appeals to the Court of Appeal against the above mentioned decision on the following grounds, namely; 3 1. That the learned judge erred in law and in fact in holding that there existed a contract of insurance between the appellant and FAO on the basis of testimony of PW2, the father of the victim of accident who was not privy to the alleged contract. His Lordship further erred when he held that FAO was not necessarily to be a party to the case which established liability in favour of the 1st respondent. 2. The learned trial judge erred in law when he awarded the claim for general damages after he held that evidence leading to its claim was speculative. 3. The learned trial judge erred in law and in fact in awarding interest on general damages from the date of accident to the date ofjudgment. 4. The learned trial Judge erred in law and in fact in basing his Judgment on documents which did not form part of the record of the Court in terms of ORDER XIII Rule 7 of the Civil Procedure Act Cap 33 R:E 2002. It is proposed to ask the Court for orders that the appeal be allowed, judgment and decree of the High Court 4 dated 3dh march/ 2007 be at aside in its entirety with costs. Dated at Dar es Salaam this ............... day of September, 2012. Advocate for the Appellant To: The honourable the Judges of the Court of Appeal. COPIES TO BE SERVED UPON 1. Lutabingwa & Co. Advocates/ WDC Bid, :!7d Floor, Lumumba I Uhuru Streets/ P.O.Box 11819/ DAR ES SALAAM. 2. Universal Law Chambers Advocates/ Pamba House/ :rd Floor, Room No. 225; Pamba Road/ Garden Avenue/ P.O.BOX 11263/ DAR ES SALAAM. 3. FK. Law Chambers/ Advocate5✓ FKHouse/ Sea Wew, P.O.BOX 20787✓ Sea Wew, DAR ES SALAAM. DRAWN AND LODGED BY: 5 Mbamba and Company Advocates/ Libya/ Mosque Streets/ Z'd Floor, Left Wing Room No. 3/ P.O. Box 70280. DAR ES SALAAM. Lodged in the Registry at Dar es Salaam this .............. . day of September 2012. Registrar. Save Mr. Joseph Rutabingwa, learned Counsel for the 1st respondent who opposed the application contending that since the intended amendment is being sought after a period of 5 years which is beyond the sixty days rule, then the 1st applicant ought to have first seek an extension of time; whereas the rest namely, Mr. Vincent Tangoh learned Principal State Attorney for the Consolidated Holding Corporation (2 nd Applicant), Mr. Madega learned advocate for the 2nd respondent and in the absence of the 3rd respondent, who were duly served by way of substituted services, did not oppose the application. So, the issue is whether an application to amend is subject to the famous sixty days rule. Rule 111 of the Rules reads. 6 111. The Court may at any time allow amendment of any notice of appeal or notice of j Cross - appeal or memorandum of appeal, as the case may be, or any other part of the record of appeal on such terms as it think fit. [Emphasis supplied] The catch words in this Rule are "at any time". Is it correct to construe Rule 111 of the Rules to be read subject to the sixty days rule? First and foremost I wish to point out that the entire purpose of amending any document is to improve it so as to have a much neater and elaborative version. In our case as said by Mr. Mbamba with a view to adjucating a real question in dispute. But an application to amend documents envisaged under Rule 111 of the Rules can be made either formal or informal. As to informal, one can simply ask the Court to amend then and there notwithstanding the time it had elapsed. I do not see, for instance how one can apply for extension of time first in informal application to amend after the expiry of sixty days. Taking these into consideration, I am of the settled view that the sixty days rule do not apply to an application to amend a document made under Rule 111 of the Rules. Indeed it is one of the cannon rules of interpretation that where the 7 language is not only plain but admit of one meaning, the task of ... interpretation can hardly be said to arise. With due respect to Mr. Rutabingwa, I do not read the Rule to mean it is subject to the sixty days rule. The amendment can be made at any time. The application to amend is granted. The amended version to be filed within seven days from the date of delivery of this Ruling. Costs in the cause. Order accordingly. DATED at DAR-ES-SALAAM this 13th day of October, 2015. B.M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. 8