national insurance corporation tanzania ltd vs shengena ltd 2018 tzca 514 22 november 2018

INTHfc COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CORAM: MBAROUK, J.A., MUGASHA. 3.A., And KWARIKO. 3.A.1 CIVIL APPLICATION NO. 01 OF 2016 NATIONAL INSURANCE CORPORATION (T) LTD ....................... APPLICANT

VERSUS SHENGENA LIMITED .............................................................. RESPONDENT (Application to amend an affidavit in Civil Application No. 230 of 2015 of the Court of Appeal of Tanzania arising from the decision of the High Court of Tanzania Commercial Division at Dar es salaam) (Makaramba, 3.^ dated the 14th day of June, 2010 in Commercial Case No. 75 of 2005

RULING OF THE COURT 07th& 22nd November, 2018 KWARIKO, 3.A.: By a notice of motion made under Rule 50 (1 ) (2 ) of the Tanzania i Court of Appeal Rules, 2009 (the Rules), the applicant is seeking leave of the Court to amend the affidavit he lodged on 9/11/2015 in support of the Notice of Motion in Civil Application No. 230 of 2015 pending before this i Court for'revision against the ofdefdated 14/6/2010 made by Makaramba, J. in the High Court of Tanzania, Commercial Division. The notice of motion mentions the following grounds:- "1. Paragraphs 14 and 15 of the said Affidavit have not been verified.

2. The error was inadvertent and unfortunate and has been detected by the applicant itself and an application to amend it has been promptly made even before the respondents have detected it and taken an objection". The notice of motion has been supported by the affidavit sworn by Samson Edward Mbamba, learned advocate for the applicant. The affidavit sssontiully amplifies the grounds advanced irvthe notice of motion*. The motion is opposed, by the respondent through an affidavit in reply sworn by Ringo WiHy Tenga, learned advocate. In essence the affidavit in reply responded to the application by pointing out that; the "omission was due to negligence as the applicant ought to have cross checked his documents before filing them in Court. At the hearing of the application, Mr. Samson Mbamba and Mr. Cuthbert Tenga, learned - advocates, appeared for the applicant and the respondent respectively. Arguing for the application, Mr. Mbamba first adopted the notice of motion, its supporting affidavit-and written submissions filed therein as part of his oral submission. He added that, the omission was an oversight and it cannot be attributed to the applicant's negligence. Mr. Mbamba cemented his argument by referring us to the decision of this Court in ONESMO NANGOLE vs. DR. STEVEN LEMOMO KIRUSWA, Civil Appeal No. 129 of 2016, NATIONAL INSURANCE CORPORATION & ANOTHER vs. JOHANNES JEREMIAH

& 2 OTHERS, Civil Application No. 8 of 2013, and ROBERT EDWARD HAWKINS & ANOTHER vs. PATRICE P. MWAKSOMOLE, Civil Application No. 109 of 2007, .{all unreported). He then prayed for this application to be granted with no order as to costs. In reply to the foregoing, Mr. Tenga first adopted the affidavit in reply to form part of his oral submission and proceeded to argue that, this Court's power to order amendment is not automatic but discretional. He urged the Court to find that the applicant's omission as pure negligence and not an oversight or human error. Further, he contended that, the fact that the respondent did not detect the omission should not be a criterion to grant this application. Mr. Tenga was also concerned that, the applicant has not prayed to withdraw the problematic affidavit and as such, both affidavits will constitute part of the record. Finally, he prayed for this application to be dismissed. He argued that, the respondent is entitled to costs because he is not the one who committed the error. However, upon being prompted by the Court he said the same should abide the outcome of the main application. In his rejoinder submission Mr. Mbamba was of the contention that, because the application is to amend the problematic affidavit, they could not pray to Withdraw it. He reiterated that, apart from the omission being an oversight, it was not detected by the

respondent who has not raised u any preliminary obiectibn.He added that Rule 50 of the Rules wasrenacted to cure such omissions. He argued that, the applicant prays for an amendment by addition of the paragraphs omitted in the verification clause. Finally, he conceded that costs of the application, if any, to follow the event in the main application. Having summarized the opposing submissions by the counsel for the parties, the Court is now enjoined to decide whether the applicant has complied with the set up- requirements in filing this application. Whether this type of application is blessed by the law, the Court finds it pertinent to let Rule 50 (1 ) (2 ) of the Rules to speak. It provides:- "50. - (1 ) Whenever forma/ application is made to the Court for leave to amend any document, the amendment for which leave is sought shall be set out in writing and, if practicable lodged with the registrar and served on the respondent before hearing of the application or, if that is not practicable handed to the Court and to the respondent at the time of the hearing. (2 ) Where the Court gives Jeave for the amendment o f any document, whether on a formal ^ or an informal application, the amendment shall be made or an amended version of the document be lodged within'such time as the'Court when giving leave may specify and if no time is so specified then within forty eight hours of the

giving of leave and on failure to comply with the requirements of this sub-rule, the leave so given shall cease to have effect" Therefore, reading from this enabling provision of the law, the amendment of the document is allowed, formally or informally. When the application is formal the applicant is required to lodge the intended amendment to the Registrar and serve the same to the respondent, or if that is not practicable, hand it over to the Court at the time of the hearing. It is clear that, no time limit has been imposed by the law. This Court has in many instances been asked to decide applications of this nature. For instance in the case of NATIONAL INSURANCE CORPORATION (T) & ANOTHER v JOHANNES JEREMIAH & 2 OTHERS <supra), the Court articulated the law. that, the intended version of the amendment should be attached to the application, and the amendment can be done at any time. This is what the applicant has done. However, the respondent has opposed this application for the reason that, the omission was purely a negligent act on the part of the applicant, who failed to cross check the document before he filed it in court. With respect, we do not agree with Mr. Tenga for two reasons. Firstly, the law as cited above only provides that, whenever practicable an amendment can be sought. Secondly,looking at the sought amendment, it is glaring that, the omission was only an

oversight or human error; that is why the respondent could not detect it and raise a preliminary objection as correctly argued by Mr. Mbamba. Also, Mr. Tenga argued that the applicant ought to pray to withdraw the problematic affidavit to pave way for the amended one. As rightly submitted by Mr. Mbamba, to amend something is not to introduce something new, but to add or remove something from the existing one. In the BLACK'S LAW DICTIONARY NINTH EDITION at page 94 the term "amendment" has been defined thus; "A forma/ revision or addition proposed or made to a statute, constitution, pleading, order, or other ■instrument;..... a change made by addition, deletion, or correction". The same dictionary provides types of amendment at page "95*to include; amendment by adding, inserting, striking out, striking and inserting and substituting. See also the case of ROBERT EDWARD HAWKINS & ANOTHER v PATRICE (supra). Similarly, in the case of ONESMO NANGOLE vs. DR. STEVEN LEMOMO KIRUSWA (supra) this Court said thus; "So, when the Court orders an amendment to be effected it means it is to correct or improve the very record which had a/ready been filed and not to replace it with another document" As earlier stated, this Court is of the view that, although no time limit for the application for amendment has been set by the law, the applicant has been prompt to file the same soon after discovery

of the omission. This was done even before objection was raised by the opposite party to that effect. For the foregoing, this Court finds that the application has merit and it is hereby granted as prayed. The applicant is allowedifto add in the verification clause paragraphs 14 and 15 of the affidavit. The amended 8 version of the applicant's affidavit in Civil Application' No. .230 of;.2015 should be filed within fourteen (14) days from the date of delivery of this ruling. Costs to abide by the outcome of the main application. Order accordingly. DATED at DAR ES SALAAM this 14th day of November, 2018. M. S. MBAROUK 1USTTCE OF APPEAL S. E. A. MUGASHA

JUSTICE OF APPEAL M. A. KWARIKO

JUSTICE OF APPEAL I certify that this is a true copy of the original.