Ruling SOTTA MINING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISC. LAND APPLICATION …….. OF 2024 (Arising from the Land Case No. 54 of 2023 of High Court of Tanzania at Mwanza) SOTTA MINING COMPANY LTD…………………………………….…..1st APPLICANT ACE CONSULTANTS LTD………………………….………………………2nd APPLICANT

VERSUS JOVIN VEDASTUS MUTAGWABA……………………………………..1st RESPONDENT JAMES PATRICK MASOLWA………………………………..………...2nd RESPONDENT JANE VEDASTUS MUTAGWABA…………………………….………..3rd RESPONDENT ERICK LAWRENCE MWASI……………………………..………….....4th RESPONDENT CLEMENT SAULO MACHUMU……………………………………….…5th RESPONDENT PAULINE MICHAEL RWECHUNGURA……………………………….6th RESPONDENT THE ATTORNEY GENERAL …………………………………………….7th RESPONDENT

RULING 14th June & 19th July 2024. ITEMBA, J. The applicants who are defendants in Land Case no. 54 of 2023 filed by the 1st to the 6th respondents herein, have moved this court for the orders that they should be allowed to amend their joint Written Statement of Defence filed before this court on 6th December 2023, costs of the application to be in the main suit and any other orders which the court may deem fit and just to grant. The application is made under Order VI rule 17 of the Civil Procedure Code herein the CPC and it is supported by the affidavit of Isaack Alfred Lupokela, the Chief Financial Officer and Acting General Manager of the 1st 1 applicant. On the other side, the application is opposed through the counter affidavit sworn by Heri Louis Kapinga, counsel for the respondents. At the hearing of the application, the 1st and 2nd applicants had the services of Advocate Sinare Zahran while the respondents were represented by Advocate Heri Kayinga. The 7th respondent was represented by Mr. Allen Mbuya, learned state attorney. Submitting in support of the application, the counsel for the applicant told the court that rule 17 of Order VI of the CPC allows amendments of pleadings and the applicant is seeking to amend the joint written statement of defence in order to include information relating to the 5th plaintiff. That, at the times of filing the joint written statement

of defence, the first Applicant and the Second Applicant had not yet located the relevant schedule of compensation forms in respect of the firth Respondent to be able to indicate in the joint written statement of defence the sum of compensation that the fifth respondent is entitled to. That while the compensation entitlements facts stated in paragraph 9.5 of the joint written statement of defence relate to the sixth Respondent, one Pauline Michael Rwechungura, who is the sixth plaintiff in the main suit, 2 they have been associated with the Fifth Respondent, Clement Saulo Machumu who is the fifth plaintiff in the main suit. He stated that based on the foregoing, the first applicants seek to amend their joint written statement of defence specifically to include facts relating to compensation entitlements that the fifth respondent is entitled to. That, the intended amendments are necessary for the purpose of determining the real questions in controversy between the parties and for the interest of justice to both parties. He added that, for ease of reference, a Photostat copy of the Amended Joint written statement of defence whereby the intended amendments are highlighted, is annexed in the affidavit as SOTTA-3. He supported his application by the case of Peter Wegesa Chacha Timasi v North Mara Gold Mine Ltd. Civil Appeal No. 49/2020 Page 3 to 4. which states inter alia that order

for amendment of pleadings should be, clear and specific and that is why they have annexed on their affidavit a draft of the amended WSD. Finally, he prayed for the application to be granted with no orders as to costs. 3 The counsel for the respondents strongly opposed the application. He submitted that the application is an afterthought, misplaced and lacks merit. That, it is aimed at pre emptying the respondents’ application no. 9383 for an application for judgment in admission. That, the deficiency complained off is typically the same as what the said application is intending to rectify and once this application is granted the applicant’s application will be useless. He also referred to the case of Isaack 7 Sons co. Ltd v North Mara Gold Mine Ltd. Taxation Ref.no 1/2022 arguing that once a preliminary objection is lodged, it is not open for a party to remedy the deficiency thereof. The learned counsel also distinguished the applicant’s cited authority stating that, departure from pleadings can only be made after discovery of new facts contrary to this case where the intended amendment refers to documents which were in possession of the applications because the valuation process was already concluded. That, in the proposed amendment and annexure, there is nothing new on the dates, time and scheduled complained off are not different from the other respondents. Mr. Mbuya for

the 7th respondent informed the court that they do not oppose the application. 4 In a brief rejoinder, the counsel for the applicant stated that on 16th April 2024 an oral prayer was made for amending the WSD and it was on the same day when the respondent made a prayer to file an application for judgment on admission and the court directed the parties to file simultaneously the 2 applications formally. That, the cited case of Isaack & sons co Ltd. prohibited pre emptying a preliminary objection but this is an application under O. VI rule 17 CPC and not a preliminary objection. The main issue herein is whether the applicants should be allowed to amend their Written Statement of Defence. Order VI rule 17 provides as follows: 17. ‘The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.’ I have considered the application and submissions from both parties. The applicant is basically explaining that there were missing information which they intend to add in their WSD. I have also gone through the intended amended Written Statement of Defence and the intended alterations therein. I do not find that the application aims at pre emptying 5 the respondents’

prayers for judgment in admission as alleged by the defendants. I state so because basically, admission should not be forced out of the defendants (the applicants herein). I have also taken into consideration the provisions of overriding objectives under section 3A and B of the CPC that courts shall be to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. In the book of Mogha’s Law of Pleadings; 15th edition, Eastern Law House, New Delhi, 1998 it is stated at page 137 that; “...All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for purpose of determining the real question in controversy between the parties...” Further, at page 141 it is stated as follows; “...an amendment may be allowed at any stage of the proceedings even when the case is reserved for pronouncing judgment, at the instance of either party to the suit even after the closure of the plaintiff’s evidence even at the appellate stage...” The same position was also stated by the Court of Appeal in the case of Jovent Clavery Rushaka & Another versus Bibiana Chacha, CAT, Civil Appeal No. 236 of 2020 at page 12 where it was held that; 6 “...it is settled law that a pleading can be amended at any stage of the proceedings only to the extent allowed by the court on such terms as may be just

and such amendment should be limited to what will be necessary for determination in dispute between the parties....” (emphasis added) In the present application, I find that if the application is allowed, there is no miscarriage of justice which will be occasioned. In accordance with O. VI rule 17 and for the interest of justice, let the applicant file the amended Written Statement of Defence in accordance with the Photostat copy of a draft amended joint Written Statement of Defence attached as SOTTA 3 in the applicant affidavit. The amended WSD should be done within 14 days from the date of this ruling. as explained for in the Chamber Summons. Thus, the application is allowed. It is so ordered. L.K.J. ITEMBA

JUDGE 19/7/2024 7