IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB-REGISTRY OF MWANZA

AT MWANZA
MISC. CIVIL APPLICATION NO 2458 OF 2024
(From Land Case No. 22 of 2023)

GOLDCREST HOTEL LIMITED …………………………………………. APPLICANT

VERSUS
TAI FIVE HOTEL LIMITED ………………………………………. 1ST RESPONDENT
THE REGISTERED TRUSTEES, PUBLIC SERVICE
SOCIAL SECURITY FUND (PSSSF) …………………………… 2ND RESPONDENT
THE ATTORNEY GENERAL ………………………………………. 3RD RESPONDENT

RULING
19th & 29th April 2024
CHUMA, J.

By chamber summons, the applicant is seeking this court to grant leave

to, first depart from its scheduling Conference order set on 22nd August 2023

in order to determine applicant’s application seeking court leave to amend

its written statement of defence and second the Applicant to amend its

written statement of defence in Land Case No. 22 of 2023 which is due for

hearing. The application is supported by the affidavit of Constantine

Mutalemwa the counsel for the applicant and Sebastian Germanus the

principal officer of the applicant. The application is contested by the affidavit

of Mr. Wilson Christopher Tarimo the principal officer of the 1st respondent

while the 2nd and 3rd respondents filed no counter affidavit.

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 It was the disposition by Mr. Mutalemwa in the affidavit that the

applicant was previously represented by FK Law a law. he was later on

engaged and discovered that most of the facts leading to the institution of

the Suit have not been pleaded in the Applicant’s written statement of

defence by the Applicant. He also noted that most of the documents

important in determining the real issues in controversy between the parties

to the Suit have neither been pleaded nor attached to the Applicant’s

Defence. That, the respondents will not be prejudiced in any way if this

Application is granted and it will enable the Court to justly and timely solve

the real issue in controversy. The counter affidavit contested the application

that, FK Law Chambers presented the applicant was competent to draft the

Written Statement of Defence. The applicant’s new documents are intended

to be brought as an afterthought to impede justice and cause unnecessary

prejudice to 1st Respondent who has already commenced a hearing of its

case by presenting the witness statements.

The application proceeded through written submissions. The

submissions for the applicant were filed by Constantine Mutalemwa. While

Mohamed Tibanyendera and Joseph Madukwa filed the submissions for the

respondents. The 2nd and 3rd respondents did not file the submission.

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 It was the submissions of Mr. Mutalemwa that there are very crucial

facts, and documents that need to be pleaded in the Applicant’s Defence.

That, those facts and documents are so important that if not pleaded, the

Court might not have an opportunity to fairly and justly determine the suit.

That the 1st respondent’s counter affidavit has only responded to the second

affidavit sworn by Advocate Constantine Mutalemwa therefore the affidavit

by Sebastian Germanus was not counted. That, in law, if amendments are

intended for purposes of clarifying the facts, already pleaded, a court of law

allows such amendments as well underscored by Mogha’s Law of

Pleadings, 15th edition, Eastern Law House, New Delhi, 1998 at pages 150-

151 that;

“...But there may be no objection to allowing an amendment

which neither takes away the effect of any admission made in
the original pleading nor raises any inconsistent plea by
changing the character of the pleading but merely elucidates
and clarify it...”

The intended to be pleaded are to enable this court to determine the

controversy against the parties in a fair and just manner. That, the Mogha’s

Law of Pleadings (supra) states on page 137 that;

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 “...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...”.

That, in the instant matter, the applicant, in its original written

statement of defence, denies and/or disputes to have frustrated the lease

agreement of suit premises and as such the applicant intends to amend its

defence by clarifying its denials by pleading more facts as embodied in the

lease agreement and other documents and letters as attached to the

Chamber summons which was filed on 06.02.2024. In other words, the

applicant intends to clarify its non-involvement in the lease agreement

allegedly to have been frustrated by other parties by pleading more facts

and attaching more related documents, without changing the nature of the

case or negating any admissions already pleaded, if any.

He further submitted that no miscarriage of injustice was expected

from the other side by amending any pleading if the said party can be

compensated by costs as stated by Mogha’s Law of Pleadings (supra) on

page 139 that,

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 “...the amendment should be allowed if it can be made
without injustice to the other side. There is no injustice if the
other side can be compensated by costs...”

He further submitted pleadings can be amended at any stage of

proceedings as stated in the case Jovent Clavery Rushaka & Another

versus Bibiana Chacha, CAT, Civil Appeal No. 236 of 2020 page 12 that;

“...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....”

Further, amendment of pleadings can be made even after the closure

of the plaintiff’s evidence as observed by Mogha’s Law of Pleadings

(supra) on page 141 in which 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...”

Moreover, it further submitted that in the course of allowing the

amendment of pleadings a court of law has powers to set the

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parameters/limits of the intended amendments as clearly stated in the case

of Jovent Clavery Rushaka & Another versus Bibiana Chacha (supra)

at page 12.

In respect of the intended amendments which were challenged on

account that Advocate Constantine Mutalemwa had confidential information,

it was the applicant's submissions that those alleged confidential information

was not disclosed in the counter affidavit sworn by Wilson Christopher

Tarimo. He therefore prayed for this application to be allowed.

Contesting the application, it was contended that, both affidavits

supporting the Application were objected to in specific particulars stated in

the affidavits of Wilson Christopher Tarimo which were filed separately. That,

they do not dispute the guidance of the renowned author as quoted by the

applicant. However, the application at hand has fallen short of the basic

condition precedents as laid down by Mogha’s Law of Pleadings. The key

conditions for the court to exercise its discretionary powers to grant an

amendment to pleadings are stated by Applicant’s counsel through

quotations made on pages 137 and 150-151 of the said Book, Mogha’s Law

of Pleadings (supra) as quoted by the applicant that; one, an amendment

should not cause injustice to the other side; two, The amendment should

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be necessary for purposes of determining the real question in controversy

between the parties; three, the intended amendment should not take away

the effect of any admission made in the original pleading; and four, the

amendment should not raise any inconsistent plea by changing the character

of the pleading but merely elucidates and clarifies it.

That, the submission by counsel for Applicant is based on only one

condition that the intended amendment will assist the court in determining

the controversy between the parties in a fair and just manner. Therefore,

the application is based on one condition out of the four tests laid down by

Mogha’s Law of Pleadings (Supra). Further, the learned counsel does not

state which controversy between the parties has remained unanswered in

the original Written Statement of Defense (WSD) filed by the Applicant and

verified by the same person, Sebastian Germanus. The applicant has not

stated how the sanctity of pleadings is protected after the amendment as far

as conditions number 3 and 4 are concerned. The Affidavits supporting the

Application do not state what needs to be clarified or elucidated by the

intended amendment which was not pleaded before. The applicant has made

several admissions in the original Written Statement of Defence. That, the

intended amendment is calculated to change the character of the original

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pleadings by removing the admissions and making a totally different

approach at the time when the 1st Respondent herein has already submitted

to the court, all the material evidence through witness statements. The

issues have already been framed by the court which need to be determined

by way of evidence hence, allowing a blank amendment at this juncture is

nothing but a serious prejudice to 1st Respondent who has taken all the

necessary steps to comply with court orders and schedules. That they did

not object to the holding in the case of Jovent Clavery Rushaka &

Another vs Bibiana Chacha (supra) where the court was referring to

Order VI Rule 17 of the Civil Procedure Code, Cap. 33 (hereinafter the CPC).

However, the facts of that case are distinguishable from the facts at hand.

That, the Applicant has not stated which paragraphs in the original Written

Statement of Defence are intended to be amended. He has not even

attached a draft written statement of defence for the court to rely upon to

set the conditions for the intended amendment. This means the Amendment

is general to the extent of changing the whole defence and making new

aversion. That, the applicant would have used a golden room for seeking

leave of this Court to file a list of additional documents for such purposes

rather than praying for Amendment. That, in Commonwealth countries, the

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principles governing applications for the amendment of pleadings were

succinctly summarized by White, J. in Commercial Union Assurance Co.

Ltd v Waymark No 1995 (2) SA 73 (Tk) at 77F-I. 7 [22] as followed in the

case of Vallun v Malan and Another (47599/2021) [2023] ZAGPPHC 870

(31 July 2023) that;

“The court has discretion whether to grant or refuse an

amendment. An amendment cannot be granted for the mere
asking, some explanation must be offered therefore. The
applicant must show prima facie that the amendment has
something deserving of consideration, a triable issue. The
modern tendency lies in favour of an amendment if such
facilitates the proper ventilation of the disputes between the
parties. The party seeking the amendment must not be mala
fide. The amendment must not cause an injustice to the other
side which cannot be compensated by costs. The amendment
should not be refused simply to punish the applicant for
neglect. A mere loss of the opportunity of gaining time is no
reason, in itself, for refusing the application. If the
amendment is not sought timeously, some reason must be
given for the delay. The granting or refusal of an application
for the amendment of a pleading is a matter for the discretion
of the court, to be exercised judicially, in light of all the facts
and circumstances before it.”

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 They submitted further that, in Moolman v Estate Moolman 1927

CPD 27 at 29 where Watermeyer J said;

“The practical rule adopted seems to be that amendments will

always be allowed unless the application to amend is mala
fide or unless such amendment would cause an injustice to
the other side which cannot be compensated by costs, or in
other words unless the parties cannot be put back for the
purposes of justice in the same position as they were when
the pleading which it is sought to amend was filed.”

According to them, the parties to this case cannot be put back to the

position as they were when the pleadings that sought to amend were filed;

the Plaintiff will have to make a new line of evidence, witnesses and other

particulars; Court framed issues are bound to change due to the nature of

amendment; and the witness statements will also change to meet newly

pleaded facts. That Costs cannot restore the damage caused to 1st

Respondent due to the amendment. That, in East African case of Eastern

Bakery v Castelino [1958] EA 461, Sir Kenneth O’connor P stated as

follows: -

“…It will be sufficient, for the purposes of the present case,

to say that amendments to pleadings sought before the
hearing should be freely allowed, if they can be made without

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 injustice to the other side, and that there is no injustice if the
other side can be compensated by costs…. The court will not
refuse leave to allow an amendment simply because it
introduces a new case…. But there is no power to enable one
distinct cause of action to be substituted for another, nor to
change by means of amendment, the subject matter of the
suit… The court will refuse leave to amend where the
amendment would change the action into one of a
substantially different character; or where the amendment
would prejudice the rights of the opposite party existing at
the date of the proposed amendment e.g. by depriving him of
a defence of limitation accrued since the issue of the writ.”

That, in this matter at hand, the applicant intends to introduce new

facts to the original pleadings which will change the nature of the case. That,

Similar application like the one at hand was refused by the Supreme court

of Ireland in the case of Smyth v. Tunney [2009] IESC 5; [2009] 3 I.R.

322 where it was inter alia stated that;

“In summary the law as to amendment now is that an

amendment will be allowed if it is necessary for the purposes
of determining the real issues in controversy between the
parties. The addition of a new cause of action by amendment
will be permitted notwithstanding that by the date of
amendment the Statute of Limitations had run if the facts

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 pleaded are sufficient to support the new cause of action.
Facts may be added by amendment if they serve only to clarify
the original claim but not if they are new facts. Simple errors
such as an error in date or an error as to location which do
not prejudice the defendant and enable the real questions in
controversy between the parties to be determined will be
permitted…”

With regards to the confidential information held by Mr Mutalemwa,

they submitted that the said advocate admits having performed attestation

of attached documents to counter affidavit. That, the said documents are

relevant to the case at hand. Mr. Constantine Mutalemwa has always been

a personal legal advisor of the 1st Respondent in his capacity as an advocate.

He has written a number of confidential legal documents including

undertakings to the Tanzania Revenue Authority, Affidavits of company

directors of 1st Respondent, commercial consultation advice, corporate legal

advice and many others. The change of mind to start representing the

opposite party to the case which is about to be heard is clear proof that Mr.

Constantine Mutalemwa intends to use the information acquired by virtue of

normal advocacy business from the 1st Respondent in favour of the Applicant.

No wonder he has come up intending to amend pleadings so that he can

bring in some confidential information which may prejudice the 1st

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Respondent in this dispute. We humbly pray that Mr. Constantine

Mutalemwa should not be allowed to prosecute the case against the 1st

Respondent. In the alternative, the application should not be granted as the

same is made mala fide. The motive of this application is to cause

embarrassment to 1st Respondent through advocate Constantine Mutalemwa

who has always been a legal advisor of the 1st Respondent and all its

directors. 8 We wish to bring to the attention of this court the provisions of

Rules 30 and 31 of the Advocates (Professional Conduct and

Etiquette) Regulations, 2018 (GN No. 118 of 2018). They finally prayed

for the dismissal of this application with costs

In rejoinder, Mr. Mutalemwa reiterated the submissions in chief. He

however added that, both parties are at one that in law the amendments are

allowed for the purposes of clarifying the original pleadings as stated by

Mogha’s Law of Pleadings, (supra). That, the intended amendments are

only being sought to clarify the denials of the frustration of the lease

agreement and all the monetary claims. Therefore, if such amendments are

allowed the controversy of the frustration of lease agreement as alleged will

be fairly and justly understood and determined by this court and equally, this

court will determine who amongst the defendants is liable to bear the reliefs

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as prayed for in the main case. That the admissions already made will not

be negated/changed. Further, any injustice will be compensated in terms of

costs. That, the case of Eastern Bakery and Castelino (supra) have been

cited out of context and do not apply in the application at hand. Those

commentaries bar the amendments of the plaint which introduce the new

cause of action or the written statement of defence, which raises the new

claim; like a counterclaim, which denies the plaintiff the right of limitation,

which is not the case at hand.

Regarding the allegations that Advocate Constantine Mutalemwa

possesses confidential information, it was submitted that attestation of

documents does not put the same advocate in a conflict of interest as

similarly observed in the case of Amiri Abdallah Kilindo versus Global

Securities Finance and Insurance Ltd, civil case No. 220 of 2002,

(unreported).

Having given due consideration of the rival submissions of both

Learned counsels for the parties, the chamber summons along with the

affidavits for and against the application, I commend both counsels for the

applicant and the 1st respondent for their thorough research. This court is

duty-bound to determine whether the instant application is meritable.

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 The affidavit of Sebastian Germanus supports the amendment and it

was not counted by the 1st respondent by the affidavit. It is a settled law

that matters of facts need to be contested by an affidavit otherwise are

deemed to be admitted.

It is a settled position of law that this court may at any stage of the

proceedings allow either party to alter or amend his pleadings upon proof

that such amendments are necessary for the purpose of determining the real

questions in controversy between parties. This legal stance is in respect of

the provisions of Order VI Rule 17 of the CPC which provides;

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.

However, it should be noted that, for the court to allow amendment of

pleadings three conditions has to be met, one, the application is made

before the hearing starts, second, the amendment is necessary for the

purpose of determining the real questions in controversy between the parties

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and third that, such amendment can be made without causing injustice to

the other party The Court Appeal in the case of George M. Shambwe Vs.

Attorney General and Another (1996) TLR 334 (CAT)in re-affirming and

restating the principle as stated by the Court of Appeal for Eastern Africa in

the case of Eastern Bakery Vs. Castelino (1958) E.A 461, where the Court

observed that:

’’We need also to reaffirm the principles upon which

amendments to pleadings should be made. These were stated
by the Court of Appeal for Eastern Africa in the case of Eastern
Bakery Vs. Castelino. That Court stated at 462, It will be
sufficient for the purposes of the present case, to say that
amendments to pleadings sought before the hearing should be
freely allowed, if they can be made without injustice to the
other side.’’

From the above authorities, I am in agreement with the submission of

the respondent which is also a stance of the applicant’s submission that

amendment may not be allowed if it intends to introduce new facts which

might change the nature of the case. The same as provided in Mogha’s

Law of Pleadings, 15th edition, Eastern Law House, New Delhi, 1998 can

be allowed if the following is established one is that it should not cause

injustice to the other side; it must be necessary for purposes of determining

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the real question in controversy between the parties; the amendment should

not take away the effect of any admission made in the original pleading; and

the amendment should not raise any inconsistent plea by changing the

character of the pleading but merely elucidates and clarifies it.

Regarding the powers of this court to depart to the scheduling

conference orders, the law under Order VIII Rule 23 of the CPC states that,

departure shall be made where the court is satisfied such departure or

amendment is necessary in the interest of justice. And when the prayer for

departure is granted the applicant shall bear the costs unless the court

decides otherwise. The said Order VIII Rule 23 of the CPC provides thus:

“Where a scheduling conference order is made, no departure

from or amendment of such order shall be allowed unless the
court is satisfied that such departure or amendment is
necessary in the interests of justice and the party in
favour of whom such departure or amendment is made
shall bear the costs of such departure or amendment,
unless the court directs otherwise”.

The 1st respondent contests the application for the reason that the

same will prejudice the 1st respondent because he had already filed a witness

statement awaiting tendering of exhibits and cross-examination. Further, it

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was alleged that the amendment may result in a new cause of action which

might change the character of the original pleadings by removing the

admissions and making a different approach. No specific paragraphs were

stated by the applicant which are subject to intended amendment. And that

the counsel for the applicant held some confidential information and

relationship with the 1st respondent which might be used unfairly to him.

In my view, I decline to join hands with the submission of the first

respondent's counsel that the sought amendment will change the cause of

action by the Written Statement of Defence (WSD). The one who is suing is

the one who set his cause of action against the defendants. The WSD only

tells the defendant’s line of defence. Gathered from the affidavit and the

submissions for the applicants, the applicant intends only to clarify those

facts which have already been pleaded for the purposes of determining the

real question in controversy between the parties. The intended amendment

according to the submissions of the applicants will not take away the

admission made in the original pleading; or raise any inconsistent plea by

changing the character of the applicant’s line of defence but merely clarify

them. The 1st respondent did not tell how the intended documents to be

attached are not relevant to the matter in controversy. Therefore, in this

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circumstance, the 1st respondent stands not to be prejudiced by the

amendment.

Regarding the raised fear that advocates Mutalemwa held some

confidential information of the 1st respondent is out of the contest. The 1st

applicant is at liberty to object that the respective advocate cannot represent

the applicant in the suit in accordance with the law. What is before this court

is an application for amendment of the WSD by the applicant only. As to the

issue of failure to append a draft of the intended WSD Mr. Mutalemwa said

nothing about it but even the respondent's counsel never explained under

which provision of law his argument was based. I don’t think it is a law

requirement so to speak. Again, this point is out of place.

This court is then satisfied that, in the interest of justice the sought

departure order is necessary to enable the applicant to file amended WSD.

It is this court’s findings that the application has merit and allowed. However,

the amendment should only be confined to the areas of the amendment

stated in the affidavit supporting this application.

In the end result I hereby allow departure from the scheduling order

made on its scheduling Conference order set on 22nd August 2023 and I

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proceed to grant leave to the applicant to amend the WSD to accommodate

the important facts as sought for with a view to determine the real question

in controversy between the parties. In the event, the amended Written

Statement of Defence be filed within 14 days from the date of delivery of

this ruling. The applicant to bear costs for the amendment. It is so ordered.

Dated at MWANZA this 29th day of April 2024.

W. M. CHUMA
JUDGE

Ruling delivered in court before Mr. Mutalemwa learned counsel for the

applicant, Mr. Madukwa Learned counsel for first respondent and Mr. Allen

Mbuya Learned State Attorney for second and third respondents this 29th

day of April 2024.

W. M. CHUMA
JUDGE

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