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IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
CIVIL CASE NO. 311 OF 1999

MWENGE GAS AND LUB OIL LTD PLAINTIFF

VERSUS
UNIVERSITY OF DAR ES SALAAM DEFENDANT

RULING

A.Shangwa,J.

On 17/8/1999 , DR. Lamwai for the plaintiff

MWENGE GAS AND LUB OILS LTD filed a suit against

the defendant the UNIVERSITY OF DAR ES SALAAM

claiming for damages for breach of the Lease

Agreement which was entered into between the

parties on 1/3/1995.

On 6/3/2002, Dr. Lamwai prayed for leave to

amend the plaint so as to introduce a claim for

damages for eviction and for the properties which

were confiscated and to exclude the name of the 2nd

defendant who was wrongly impleaded. Leave to

amend the plaint was accordingly granted by

Bubeshi, J (Rtd) and the amended plaint was

presented for filing on 28/4/2005.

On 5/5/2005, learned counsel for the defendant

Mr. Kalolo, Advocate filed a written statement of

Defence to the amended plaint in which he raised a

preliminary objection stating that the action is barred

by limitation, and that the amendment introduces a

new cause of action contrary to law.

On 13/12/2005, I ordered that the defendant's

preliminary objection should be argued by way of

written submissions and it was accordingly so

argued. These submissions were drawn and filed by

 3

M/S M.A. Ismail & Co; Advocates for the defendant

and by the Managing Director of the plaintiff

company Mr. Wakhill Godfrey Muro.

Learned counsel for the defendant submitted

that the amended plaint introduces a new cause of

action to wit breach of contract and wrongful

execution of a High Court Decree in Civil Case 326 of

1997 on the 18/8/1999, whereupon the plaintiff

claims Tshs 40 Million as lost cash plus other sums as

specific damages.

Furthermore, counsel for the defendant

submitted that the amendment has unreasonably

been delayed as the suit was first instituted in 1999.

Some three books by learned authors were referred

to me in which the principle to be taken into

consideration in allowing the amendment of

pleadings were laid down.

First, I was referred to Rao & Chittaley in their

commentaries on the Indian Civil Procedure

Code( 16th Edn) Vol. 2 at page 2248 where it is

written that "a party is aI/owed 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 right is affected and the amendment can be

aI/owed without injustice to the other side'~

Secondly, I was referred to C.K. Takwan in his

treatise titled Civil Procedure, 5th Edn at page 152

where some of the principles which have to be taken

into consideration in dealing with applications for

 5

amendment of pleadings are mentioned. One of these

principles is that "no amendment should be aI/owed which

amounts to or results in defeating a legal right to the

opposite party on account of lapse of time'~

Thirdly, I was referred to Mogha's Law of

Pleadings, 14th Edn at page 145 where it is provided

inter - alia that "an amendment, the effect of which is to

change the cause of action on which the original suit was

based .. may not ordinarily be al/owed'~

It was further submitted by learned counsel for

the defendant that the plaintiff's claim which

enhances the original figure of shs 50 Million to over

shs 500 Million in form of specific damages which

were never part of the original claim are time barred

for having been introduced more than six years from

when the cause of action arose.

 6

In reply, the plaintiff company's Managing

Director Mr. Wakhill G. Muro submitted that the

amendment made by the plaintiff did not in any way

introduce a new cause of action as alleged by the

defendant, and that limitation cannot be raised as a

defence against the hearing of his suit. He contended

that the amended plaint repeats the right to reliefs

claimed against the defendant in respect of the same

acts as detailed in the original plaint.

He cited the case of Edward Masanja Ng'ahwani Vs

Attorney General and Another Civil Appeal No. 61 of 2001

(unreported) in which the Court of Appeal of Tanzania

stated that an amendment duly made with or without

leave takes effect not from the date when the

amendment is made but from the date of the original

document which it amends.

 7

It appears to me that this preliminary objection

by counsel for the defendant has been raised

belatedly. In my view, the objection that the action is

barred by limitation, and that the amendment

introduces a new cause of action contrary to law,

ought to have been raised when Dr. Lamwai who

was representing the plaintiff by then prayed for

leave to amend the plaint so as to introduce a claim

for damages for eviction and for the properties which

were confiscated by the defendant. At that time, one

of the defendant's counsel Mr. Kalolo was present

and did not object to Dr. Lamwai's prayer. As a result,

the Court Bubeshi, J (Rtd) allowed the plaintiff to

amend his plaint as prayed. I think Mr. Kalolo was

supposed to tell the Court before allowing the

plaintiff to amend the plaint that the amendment

sought to be made introduces a new cause of action

and that introducing such an action would render the

original suit time barred.

Now, as this Court has already allowed the

plaintiff to amend the plaint, the good principles for

allowing amendments to the pleadings that are found

in the books by learned authors which have been

referred to me by Mr. Kalolo cannot be of any

assistance to this Court. Those principles are useful

in cases where the court has not yet allowed the

party to the suit to amend the pleadings and not

thereafter. They relate to situations as to when an

amendment to pleadings should not be allowed by

the Court.

At any rate, I am of the view that no new cause

of action has been introduced by the plaintiff in its

amended plaint. The cause of action in the amended

plaint remains the same as the claim in the original plaint. In

the original plaint filed in 1999/ the plaintiff was pleading for

damages for breach of contract i.e. LeaseAgreement. In the

amended plaint filed in 2005/ the plaintiff is claiming for the

samething. What the plaintiff has simply done in the

amended plaint is to boost the total claim for specific

damages to be assessedby the Court from Tshs 190 to over

Tshs 500 Million.

Another question to be considered by this Court is

whether or not the plaintiff's action of increasing the total

amount of specific damages from Tshs 190 Million to over

Tshs 500 Million following the breach of the Lease

Agreement renders the plaintiff's suit time barred.

 My answer to this question is No. As the cause of

action in the original plaint namely breach of the

tenancy / Lease Agreement remains unchanged in

the amended plaint the question that the action is

time barred should not arise. For these reasons, I

hereby overrule the defendant's preliminary

objection and order that the suit should come for

pre- trial conference on 31/5/2006.

~
A. Shangwa,J.

24/5/2006.

Delivered in open Court this 24th day of May, 2006.

~
A. Shangwa,

24/5/2006.