IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM.
CIVIL CASE No. 210 OF 2017
M/S JUKA SECURITY...................................................PLAINTIFF
Versus
THE BOARD OF TRUSTEE
OF THE NATIONAL SOCIAL SECURITY FUND.............. DEFFENDANT
RULING
12.02.2020 - 17.03.2020
3. A. DE-MELLO J;
An oral application for amendment of the Written statement of Defense was
made by the Defendant, following allegations of new disclosure of a
document that has been retrieved, and that, it is in the interest of justice for
this Court to grant. The Application is opposed by the Counsel for the
Plaintiff, on the ground that, if at all, it should be made since the First Pre-
Trial Conference but, not this late hour when Final Pre Trial has been
accomplished. This is unfair and abuse of Court process, he insists.
However, Counsel Duncan submits ttiat, Order VI Rule 17 of the Civil
Procedure Code Cap. 33 allows ^rn^Kjdment and, alteration of pleadings
at any stage of the proceedings.
i
Directing my mind to Order VI rule 17 (supra ) it provides;
"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."
As a general rule, sincerely, amendments of pleadings should be allowed at
any stage of the proceedings where Court is satisfied that, it will enable to
display the real question in controversy between the Parties for adjudication
but, not occasioning injustice to the opposite party. It is clear and,
as stated by Counsel Duncan that, amendment seeks to put record right
following new disclosure from document that has been retrieved. However,
his averment is limiting rather wanting, for not going thus far to disclose
what that document is all about, for the other party let alone the Court, to
be aware of.
However, Order VI rule 16 (supra) under which this application was
brought gives discretion for the Court, in determining whether or not it is
merited for granting of such prayer. Other than the said law, several and
many cases namely; Angel Timothy Kingu & Mzaking International
Transport Ltd. vs Bruno John Ngoo & Two Qthers, Land Case No.
384 of 2015, borrowing the position in Motohoy \&. Auto Garage Ltd.
and Another [1971] HCD NO. 81 at page 54;
"....Amendments shall be made as may be necessary for the
purpose of determining the real question in controversy between
the parties.
"The making of amendment is not really a matter of power of a
Court but its duty, so that the substantially justice may be done."
The Court in the case of Gaso Transport Services (Bus) Ltd versus
Obene [1990-1994] EA 88, went deeper in what should be considered
when such prayer arises, observing;
"The amendments should not work injustice to the other side. An
injury which can be compensated by the award of costs is not
treated as an injustice. Multiplicity of proceedings should be
avoided as far as possible and all amendments which avoid such
multiplicity should be allowed, an application which is made
'malafide' should not be granted and no amendments should be
allowed where it's expressly or impliedly prohibited by any law".
In the interim and intense scrutiny, I am uncertain whether the amendment
sought is for the purpose of determining the real question of in controversy
between the parties in ensuring substantial justice is done. I am saying so
based on the fact that, Counsel has not disclosed to what is it exactly that
the said document is all about and to which extent he wishes to amend the
Written statement of Defense. The non disclosure is all that which raises
eyebrows, leaving the Court in limbo, in concluding that it leaves a lot to be
desired and failing the test, put forw^^t^the above cited authorities.
For the above reasons, I find that, the prayer sought in its confidential
manner is not merited. In exercise power bestowed upon this Court, the
discretion is judiciously invoked, as it is my settled view that the proposed
amendment sought is malafide, as the prayer for amendment is hereby
refused.
It is so ordered.
JUDGE
17/03/2020
