CIVIL APPEL NO 255 OF 2022 YAZA INVESTMENT COMPANY LIMITED VS NMB BANK PUBLIC COMPANY

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: GALEBA, 3.A.. FIKIRINI. 3.A. And ISMAIL, 3.A.1 CIVIL APPEAL NO. 255 OF 2022 YAZA INVESTMENT COMPANY LIMITED......................................... APPELLANT VERSUS NMB BANK PUBLIC COMPANY................................ ...................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (De-Mello, J.) dated the 21st day of January, 2022 in Civil Case No. 52 of 2019 JUDGMENT OF THE COURT 14th & 19th March, 2025 ISMAIL J.A.: Yaza Investment Company Limited was a part loser in a suit that she instituted against the respondent. The claim in the suit was for damages, both special and general, amounting to TZS. 3,527,404,020 and TZS. 8,000,000,000.00, respectively. It arose out of professional negligence due to the respondent's alleged failure to handle the appellant's loan application diligently and professionally. Such failure led to financial losses allegedly incurred by the appellant. Seeing no merit in the substance of the appellant's claims, the High Court (De-Mello, J.) dismissed all but one claim of general i damages whose sum was substantially whittled down to a paltry TZS. 40,000,000.00. The decision did not placate the appellant, hence her resolve to prefer the instant appeal through a seven-point memorandum of appeal. It will be apparent soon that need does not arise for reproduction of the contents of the said grounds of appeal. When the matter was called on for hearing, the appellant was represented by Mr. Benson Kuboja, learned advocate, whilst the respondent enlisted the assistance of Mr. Godwin Nyaisa, also learned advocate. As we were set out for the hearing, Mr. Kuboja rose and addressed us on a preliminary point. He took us to page 710 of the record of appeal at which the appellant's counsel then moved the trial court to allow an amendment of the plaint, an order which was granted unopposed. Mr. Kuboja argued that the order for amendment was vague, irregular and open ended, in violation of the provisions of Order VI rule 17 of the Civil Procedure Code, Cap. 33 (the CPC). He urged us to find it discrepant and order that it be set aside. The learned counsel implored us to be guided by our decision in Peter Wegesa Chacha Timasi & 2 Others v. North Mara Gold Mine Limited, Civil Appeal No. 49 of 2020 [2023] TZCA 30 and cross-off the amendment order with no order as to costs since he himself raised the anomaly. 2 Mr. Nyaisa was at one with his counterpart. He argued that, the trite law is that an amendment to the pleading must be particular. The learned counsel was equally critical of the order which he termed general and therefore, irregular. He urged us to accede to the prayer for annulling the order and nullify the proceedings. He prayed for costs as well. From the counsel's concurrent views, the narrow question for our determination is whether the amendment order is violative of the law and, therefore, discrepant. In civil proceedings, amendment of the pleadings is a regulated matter, whose manner of doing, and its scope are governed by the provisions of Order VI rule 17 of the CPC. This provision states as follows: "17. The court may at any stage o f 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."[Emphasis is supplied] What we deduce from this provision is that amendment to pleadings must only be ordered if such amendments are necessary in determining real questions that bring out what the parties lock horns on. It calls for focus and limit in the alteration of the allegations by the parties to the dispute. Clearly, the principle we distill from the cited provision is that, an order allowing amendments must be specific in its scope and purpose, and should not be boundless or open ended. Mr. Kuboja's area of consternation relates to an order of the High Court made on 10th May, 2019. This order stemmed from the prayer made by Mr. Kuboja himself, then representing the plaintiff (the appellant in this appeal) and it appears at page 710 of the record of appeal. For ease of reference, we find it apt to reproduce it as hereunder: "Kuboja: The defendant is absent though served as proved by the Wing o f their WSD. I invoke [Order] VI rule 17 of Cap. 33 to move your Court for [amending] the piaint following development that has arisen to be able to [seek] for the appropriate remedies. Court: Recall through for clarity. Bwire: I thus pray for 14 days to do so from today. Order: Granted. Hearing on 16/7/2019. Sgd: J.A. De-Mello JUDGE 10/5/2019/' We take a conviction from the excerpt that, the prayer for amendment which was devoid of any specificity was granted by a single word "Granted". No guidance on the parameters within which such amendment was to be effected was provided. While we appreciate that the nature of the prayer made by the plaintiff then handicapped the learned trial Judge from understanding what the appellant's counsel intended to address in the amendment, nothing prevented the learned trial Judge from seeking clarity of the prayer made to enable her issue an order that would stray into vagueness. So vague is the impugned order that it can hardly be said to have complied with the tenets of Order VI rule 17 and it is not hard to see that the "purpose of determining the reai questions in controversy between theparties"\NOu\d not be achieved through the impugned order. The obvious reality is that, neither the appellant's counsel nor the learned trial Judge conformed to the requirements of the cited provision of the law. In Peter Wegesa Chacha Timasi (supra), the significance of conformity with Order VI rule 17 of the CPC was emphasized when the Court held as follows: "The import o f the above position is that, when permitting amendment, the court making the order must not only allow the amendment, it must also as a rule, specify the extent to which such amendment should be made. To say it differently, the order permitting amendment is incomplete, if it only allows amendment without specifying the parameters of the amendment allowed." [Emphasis is added] Crucially, the Court's position in the foregoing passage was anchored on its earlier decision in the case of Jovent Clavery Rushaka & Another v. Bibiana Chacha, Civil Appeal No. 236 of 2020 [2021] TZCA 3527 in which it was guided as follows: "It is settled law that a pleading can be amended at any stage o f 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 determining the real question in dispute between the parties - see Order VI rule 17 o f the Civil Procedure Code, Cap. 33 R.E. 2019." See also: Salum Abdallah Chande t/a Rahma Tailors v. The Loans and Advances Realization Trust (LART) & 2 Others, Civil Appeal No. 49 of 1997 (unreported). In the totality of the foregoing, we are decidedly of the view that the prayer by the appellant's counsel is plausible and we accede to it. In the totality of the foregoing, we are decidedly of the view that the prayer by the appellant's counsel is plausible and we accede to it. Consequently, we nullify the amendment order and the proceedings that succeeded it. We also quash and set aside the judgment and decree bred out of the nullified proceedings, held from 10th May, 2019, when the impugned amendment was ordered to the end. We remit the matter to the High Court for retrial according to law. We make no order as to costs. DATED at DAR ES SALAAM this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgement delivered this 19th day of March, 2025 in the presence of Ms. Glory Venance, learned counsel for the Respondent, also holding brief for Mr. Bwire Benson Kubeja, learned counsel for the Appellant, is hereby certified as a true copy of the original.