prashant motibhai patel vs azania bank ltd another 2022 tzhccomd 66 18 march 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF THE

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE NO. 37 OF 2020 PRASHANT MOTIBHAI PATEL ................. 1st PLAINTIFF DARSHANA PRASHANT PATEL.................. 2nd PLAINTIFF

VERSUS Last order: 08th March, 2022 Ruling: 18lh March, 2022

RULING NANGEL^jk£^ ^Jhl$^^^ihyjespect of an oral application by the learned counsel for^the Plaintiffs, Mr Edward Mwakingwe to am^nd^e pleadings. He raised his plea for amendment under Order VI Rule 17 of the Civil Procedure Code, Cap.33 R.E 2019. The reason for his prayer for amendment was that the property which is the subject of this suit has already passed hands. In line with the first prayer, Mr Mwakingwe has also asked this Court to be pleased to depart from the earlier scheduling orders. He submitted that, the Plaintiffs are Page 1 of 8 intending to file an application for injunction to prevent the transfer from being effected. The learned advocate for the 1st Defendant Ms Pendael Mziray objected to the prayers by Mr Mwakingwe. She submitted that, she objects because it is wrong for the learned counsel to allege that he just became aware that the property had passed hands. Ms Mziray referred this Court to paragraph\14 of the 1st Defendant's Written Statement of Defence and. submitted that, the paragraph was cleaixthatX the>property at Kipawa Industrial Area had <been^old.to'Omari Packaging Ltd by the 2nd DefendaptS^^^^^^ Ms Mziray contendedJtfiatxinwiew of that fact, it is clear that the PlaintifPs counsel was very much aware of it even before^the partiesTconvened for the first pre-trial conference^and^l'att^^ed mediation proceedings. She contendedXthe'refore, that, the

first prayer by Mr Mwakingwe was already overtaken by events. She did not object the'seeond prayer. Mr Mwakingwe made a rejoinder to the effect that, he was aware of paragraph 14 of the Written Statement of Defence. He contended, however, that, there has been a change of circumstance as time has lapsed and, that, as of now, there are a number of notices which the Plaintiff has received from other third parties other than the said Page 2 of 8 Omar Packaging Co. Ltd. He submitted, therefore, that, in the circumstance and interest of justice, it will be proper for the Plaintiffs to plead the new change of circumstances as there is even a threat to take possession of the mortgaged property. I have careful considered the rival submissions by the learned counsel for the parties. The issue to be resolved is whether Mr Mwakingwe's prayer for amendment of the pleadings at theOJime when theJCourt VXX XX// and the parties are on the verge^of co^veping-aTihal pre­ trial conference is warranted Undoubtedly, a^e^m^t'xoT'p'lea^ihgs is an act which can be donefat any<time\befoj;e judgement. Order \\ ( ZX\ 'Xx VI rule 17 of thesCivikProcedure Code, Cap.33 R.E 2019, which is the'-basis ’u^nxwhjch Mr Mwakingwe premised his prayer^fo^ameqd^nt, is very clear to that effect. See alsot the case, ofxGeorge M. Shambwe vs. AG and \\ \\ X> Another [1996] TLR 334. Likewise; Rule 24 of the High Court

(Commercial Division) Procedure Rules, GN.250 of 2012 (as amended), which should have been the appropriate rule to rely on, provides that, amendment of pleading can be done at any time. However, there are some limitations as the door of amendment is only ajar. Page 3 of 8 In the case of Gastech Enterprise vs. National Bank of Commerce Ltd, Misc, Commercial Cause No.166 of 2018 this Court (Nangela, J.) had the following to say, and I quote: "Essentially, the proposed amendments will only be inappropriate, and, thus, rejected if it could be established^ that such amendments are made in bad faith, o^fte^arr undue delay, "thus prejudicing^ the opposing^party,'oKthat, ^such amendments ^are^futile\Vhe \\ futility of such\amendments will (( zx X\ X> inclijde amendments which would ^faiHb^^it^JcIaim upon which ^reliebcould^be^ranted. All in all, L \\ •af^the end of the day, it is the ^consideration of prejudice to the opposing party that carries the greatest weight, and, even if the amendment will add causes of action or parties, such eventualities will not scuttle the liberality in granting leave to amend pleadings. Absent prejudice or a strong showing of any of the remaining factors, set out herein above, a Page 4 of 8 presumption in favour of granting leave to amend exists." In the above cited case of Gastech (supra) this Court did point out that, "the standard for granting such a

prayer to amend is a bit elevated, especially when such a prayer comes after the Court's scheduling ordef. In this present case, the Plaintiff's advocate has prayed to amend the scheduling order as well. Well and good but in the case of Gastech (supra) tnissCourt made it clear, and I quote, that: "to obtain a^3ji^dn^t^^the^ scheduling, order^a^party 'must appl^for such^ and^as a^matter of (necessity>?rnbstclemonstrate \\ C/xx X\ ^'goodk cause's for such amendmentrliyessence, a court s \X decision^on what constitutes the ygocfckeause" will include focusing on>the diligence (or lack thereof) of the party requesting for such amendment more than it does on any prejudice to the other party. Otherwise, a Court will disfavour prayers to amend whose timing prejudices the opposing party by let us say, requiring a re-opening of discovery with additional Page 5 of 8 costs, a considerable deferment of the trial, and a likely major variation in trial strategy." (Emphasis added). From the above excerpt, it is clear, therefore, that, even if amendment of pleadings is a right of a party, if a party, for being indiligent, fails to exercise that right, the Court will not condone that act. See thecase of Hague Plant Limited v Hague & ors [2014] All ER (D) 134. In the matter at hand, it has been Mr Mwakingwe's <X ’5X X~x. xxz prayer that the Plaintiffs be^ allowed_to amend the pleadings. The

rationale for his prayer is that, the Plaintiffs have become aware that the property which forms the subject matter of the suit has already passed hands. However and, as correctly pointed out by Ms Mziray, that alleged fact was fully disclosed in the 1st □ xx xx Defendant's pleading (the 14th paragraph of the Written xx. n StatementofDefence). Mr Mwakingwe has conceded to have been aware of that fact as well. Since the Plaintiffs' counsel was well aware of that fact and further allowed the suit to pass through all stages of pre-trial conference and up to mediation, it cannot be said that his alleged awareness of the need to amend the pleadings constitutes "good cause". Page 6 of 8 As stated here above, a court's decision on what constitutes "good cause" will include focusing on the diligence (or lack thereof) of the party requesting for such amendment more than it does on any prejudice to the other party. Looking at the circumstances and the reasons assigned in support of the prayer to amend the pleadings, I cannot hold that there was such diligence on the Plaintiffs' counsel. It should also be noted, as per Order VIII rule 23 of the Civil Procedure Code, Cap.33 R.E 2019, ^en^er a scheduling order is made'^no^epar^ure from or amendment of it sh^loe^allowedunless the Court is satisfied that there (is necessity;JnM:he interest of justice to do so, and tne party seeking for such a

departure or amendmenf'is'feady^to beaflme costs. In-«vjew?of.the^aboye reasoning, I hereby reject the prayer for amendment of the pleadings since it has come unreaso^bly^r late and with no good cause for all that delay while-the Plaintiffs and their learned counsel was well aware of the facts that the property in question had changed hands. As for the second prayer to file an application for injunctive orders, that is the liberty of the Plaintiffs to do so. The prayer for amendment is thus dismissed and the prayer to file an injunctive application is granted. The Page 7 of 8 same should be filed within 14 days from the date of this ruling. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 18th DAY OF MARCH 2022 Page 8 of 8