TREASURY REGISTRAR AND A

IN THE HIGH COURT OF . TANZANIA (COMMERCIAL DIVISION) AT DAR . ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 194 OF 2018 (Originating from Misc. Commercial Cause No. 71 of ............. 2018) TREASURY REGISTRAR ........ APPLICANT AND A.C GOMES (1997) LIMITED ......... RESPONDENT RULING 18/10/2018 & 15/11/2018 SEHEL. J. By way of Chamber Summons made under Order XLII Rule 2; Order VI Rule 17 and Section 95 of the Civil Procedure Act, Cap. 33 (hereinafter referred to as. "CPC"), the applicant is moving the court for grant of l eave to the applicant to amend the petition and add the following grounds for setting aside the Arbitral Awar^~ . . 1 1. The Attorney General was not made party to the Arbitral proceedings as mandatorily required by the law; 2. Notice to Arbitration was not affected to the Attorney General as mandatorily required by law. The Respondent after being served, filed its counter affidavit to oppose it. The brief background of the matter can be canvassed as follows; on 1st December, 2017 the Final Award was submitted to this court pursuant to Rule 4 of the Arbitration Rules for registration. Parties were then duly notified. The applicant being not satisfied with the Final Award, on 29th March, 2018 filed its petition to challenge it through Misc. Commercial Application No. 71 of 2018. Parties having completed their pleadings, the petition was fixed for hearing on 17th July, 2018. However, on 17th July, 2018 when the matter came for hearing, learned State Attorney prayed for adjournment and amongst the reasons stated, the applicant wants to amend the petition thus the present application was filed and dully served upon the respondent. 2 At the hearing of the application, the learned State Attorney Helen Rwijage appeared to represent the applicant while the learned advocate Themistocles Rwegasira appeared to represent the respondent. The learned State Attorney in her submissions argued that the applicant wish to amend the petition so as to include: 1. Attorney General who is the legal advisor of the Government was not made a party in the Arbitral proceedings. She contended that the office of the Treasury Registrar is the Government Office owned by the Government 100% therefore Attorney General ought to be made a party as required by the Government Proceedings Act and the Constitution of the United Republic of Tanzania. The learned State Attorney cited the decision of this Court in MS E & A Construction Vs Permanent Secretary, Ministry of Planning, Economy & Empowerment and Attorney General, Misc. Commercial Cause No. 13 of 2007 (Unreported) that echoed the mandatory requirement of involving the Attorney 3 General in Arbitral proceedings concerning proceedings that involve Ministries or any Government institution. 2. Notice of arbitration was not effected to the Attorney General as mandatorily required by Section 6 of the Government Proceedings Act, Cap. 5. In his reply, the learned advocate Rwegasira adopted the counter affidavit and stated that Section 95 of the CPC is not a proper provision of the law invoked by the applicant because there is specific provision of the law. To support his contention, he made reference to the case of Aero Helicopter Vs. F.N Jansen [1990] T.L.R 142 where it was held that inherent powers of the High Court is exercisable where law makes no provision. Regarding the application itself, he contended that the affidavit has not sufficiently provided the reason for this Court to allow amendment. He said amendment is a discretion of the Court which it can only be granted after a party adducing sufficient reason which will not cause injustices to the other party. He pointed 4 out that the prayer for amendment is made after the schedule order for hearing of the petition was made. He further contended at the time the arbitral proceedings were conducted, the Treasury Registrar, according to Section 3 (2) of the Public Corporation Act as amended, can sue and be sued on its own name as such the Attorney General’s Act which came later cannot be applicable to the present matter. He therefore prayed for the application to be dismissed with costs. Having heard both parties’ submissions, the ball is now to the Court to determine as to whether the application for amendment of the petition should allowed. Before dealing with this issue let me state by passing that though I agree that Section 95 of the CPC is not applicable but the applicant has cited other provisions of the law that empower this court to make an order for amendment. So the objection raised has no merit. On the merit of the application, it is the law that Courts may allow either party to a suit to amend or alter the plaint or pleadings at any stage of the proceedings in such manner and on such terms. as may be just. Such amendment will be allowed where it is imperative for determining the real question in controversy between the parties. This position of the law is found under Order VI Rule 17 of CPC and Rule 24 (1) and (3) of the High Court (Commercial Division) Procedure Rules, GN 250 of 2012. The object underlying amendment of pleadings has been laid down in the leading English case of Crooper Vs. Smith [1884] Ch D 711 where Browen, LJ stated the following: “It is a well-established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ....it seems to me that as soon as it appears MM K 6 that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice as anything else in the case is a matter of right.1' This position was thereafter followed by this Court in the case of Mwenge Gas (Supra) where Shangwa, J (as he then was) made reference to commentaries by Rao & Chittaley in India Civil Procedure Code, 16th Edn., Vol 2 at page 2248 and stated: “a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided that there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested right, interest on accrued legal rights is affected and the amendment can be allowed without injustice to the other side.” It follows then that the underlying principle in granting the prayer for amendment is for the court to decide matters at controversy if it can be done without injustices. The power of the court to allow the amendment is wide and can be exercised at any stage of the proceedings. In the matter at hand, we are told by counsel for the applicant that the applicant wants to amend petition so as to include two issues which are relevant in determining as to whether the Award was properly procured. It is argued by the counsel for respondent that amendment is within the discretion of the court which can only be made upon advancing sufficient reason. I totally agree with Counsel Rwegasira that amendment is within the discretion of the Court and if I may add that as a matter of course amendment can be allowed at any stage if that is required in the interest of justice and where the party against whom amendment is to be allowed can be compensated by costs or otherwise. So long the applicant in the petition is challenging the Award and since the sought amendment is for the applicant to add issues which goes to the root of the validity of the Award I find it difficult to see how, without amendment of the, 8 pleadings, the Court can adequately determine the real question in controversy. For this Court to adequately determine as to whether the Award was properly procured, it must be availed with all the necessary facts that gave rise to the Award. According to the circumstances of the matter at hand, I am settled in mind that the granting of the prayer sought by the applicant will not prejudice the respondent. For a simple reason that the amendment sought does not prejudice the respondent as it will have a chance to respond. In the end I allow the application for amendment of petition. The amended petition shall be filed within fourteen (14) days from today's ruling. However, the applicant is condemned to pay costs to the respondent for filing reply to the amended petition. It is so ordered. ar es Salaam this 15th day of November, 2018. JUDGE 15th November, 2018. 9