AGROVETY AND CONSTRUCTION CO LTD v SALUM SAID KLEB 1995 TLR 168 (HC)

 

AGROVETY AND CONSTRUCTION CO LTD v SALUM SAID KLEB 1995 TLR 168 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mwaikasu J

Civil Case No 173 of 1990 B

June 1995

Flynote

C Civil Practice and Procedure - Pleadings - Application for Amendment of Written

Statement of Defence - What court to take into account when deciding whether or

not to allow an application to amend a written statement of defence - Order 6 r 17 of

the Civil Procedure Code.

-Headnote

D In this case the High Court considered the facts it should take into account when

exercising its discretion whether or not to grant an application to amend pleadings.

Held:

E (i) The import of the provision under Rule 17 of Order VI of the Civil

Procedure Code is that though a court has been vested with a discretion to grant an

amendment as applied for by either party, such discretion may only be exercised

where the amendment appears to the court to be necessary for the purpose of

determining the real questions in controversy between the parties;

F (ii) The intended amendment in this case is unnecessary for the purpose of

determining the real question between the parties.

Case Infomation

Application dismissed.

Cases referred to:

G (1) Eastern Bakery v. Casteling [1948] EA 461

(2) Australian Steam Navigation Co Ltd v. Smith & Sons [1889] 14 AC 316

Muccadam for applicant.

Dr Lamwai for respondent.

[zJDz]Judgment

H Mwaikasu, J:

This is an application for leave to amend a written statement of defence concerning

the validity of the revocation of the defendant's right of occupancy in respect of the

suit farmland. The intended amendment is also to include the pleading that the

declaration sought by the plaintiff is time-barred. I

1995 TLR 169

MWAIKASU J

On the authority of Eastern Bakery v Casteling (1) which citation appears to be A

incorrectly made, and the case of Australian Steam Navigation Co Ltd (2) at 318, it has

been submitted by Mr Muccadam, learned counsel for the defendant/applicant that

the position of the law is that in the interest of justice amendments to the Written

Statement of Defense should be liberally allowed. He therefore prayed that B the

amendments sought be allowed particularly as the case was just starting.

That has been protested by Dr Lamwai, learned counsel for the plaintiff/respondent

on the grounds that though conceding on the principle of law relating to amendments

as laid down in the two cases cited above, and as also provided for under Order 6 rule

17 of the CPC in exercising its discretion to grant amendments, C the court must

look at the pleadings to determine whether the amendment is necessary as the

purpose of an amendment is to assist the court to determine the real issue in

controversy between the parties. To that end Dr Lamwai has D submitted that

counsel for the defendant/applicant had failed to show the purpose to be served by

the amendment in this case.

It has been further argued by counsel for the plaintiff/respondent inter alia that the

amendment sought is intended to supply evidence that the allocation was wrong E

and bad in law adding that the same could easily be supported by production of the

revocation order as evidence for the same. A further contention for the

plaintiff/respondent is that the combined effect of the defendant/applicant's pleadings

in para 2 of the WSD which is to the effect that he has at all times been F the lawful

owner of the disputed land, producing a copy of the certificate of right of occupancy

in support thereof, and in para 3 of the WSD which is to the effect that the disputed

land had been wrongly allocated to the plaintiff/respondent, for which annexure 'A'

would make valuable evidence in court, is to bring up in the pleadings such issue of

the unlawfulness of the revocation of the G defendant's/respondent's title to the

disputed land.

As regards the issue of limitation which has not been pleaded in the WSD but also the

subject of the intended amendment, it has been argued for the plaintiff/respondent

that the same could still be argued after simply serving the H plaintiff/respondent

with notice of the intention to plead the same at the hearing.

Other arguments for the plaintiff/respondent border on the merits of the case and

therefore have been omitted for the purpose of this ruling.

Accordingly counsel for the plaintiff/respondent has prayed to I

1995 TLR 170

MWAIKASU J

A have this application for leave to amend the WSD dismissed with costs for being

not necessary.

In determining this application the first reference point is the provision under Order

6 rule 17 of the CPC. It is there provided as follows and I quote:

B 'The court may at any stage of the proceedings allow either party to alter or

amend his pleadings 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 supplied.) C

As I take it, the import of the provision under rule 17 of Order 6, of the CPC above

quoted is that though a court has been vested with a discretion to grant an

amendment as applied for by either party, such discretion may only be exercised

where the amendment appears to the court to be necessary for the purpose of D

determining the real questions in controversy between the parties.

To the same effect was the decision of their Lordships in the case of Australian Steam

Navigation Co Ltd v Smith & Sons (2) at 319, where they had this to say: E

'Their Lordships are strong advocates for amendment whenever it can be done

without injustice to the other side, and even where they have been put to certain

expense and delay, yet if they can be compensated for that in any way, it seems to

their Lordships that an F amendment ought to be allowed for the purpose of raising

the real question between the parties. That however is in the discretion of the court.'

(Emphasis supplied).

G In the light of the undisputed pleadings before this court relating to proceedings

in Misc. Civil Case No 76 of 1985, whereby the revocation of the

defendant/respondent's title to the disputed land was challenged by the

defendant/respondent and the matter was then resolved in his favour, the intended

amendment relating to the validity of such a revocation in no way can help this H

court in determining the real question in controversy between the parties. In fact,

were that to be allowed it could be embarking on an improper procedure for

challenging the validity of such revocation. For the proper procedure is the one that

was adopted in Misc Civil Case No 76 of 1985, by which such revocation said to be

wrongful was challenged by way of prayers for the issuance of prerogative orders of

certiorari. It is to be noted that even if such procedure were to be I

1995 TLR 171

MWAIKASU J

resorted to that cannot be done by way of defence in the suit before this court, as A

that would be an improper procedure. And above all a revival of such contention

would not be entertained for being res judicata in relation to Misc Civil Case No 76 of

1985

I therefore rule that the intended amendment of the defendant/applicant's WSD in

order to raise the question of alleged wrongful revocation of the B

defendant/applicant's right of occupancy on 8 August 1983, in respect of the disputed

farmland is unnecessary for the purpose of determining the real question between the

parties in this case.

The question of limitation being a point of law, though not pleaded in the WSD, C

may, as counsel for the plaintiff/respondent has rightly pointed out, be raised at any

other stage in the course of the hearing of the suit subject to reasonable notice to the

other party of the intention to raise such an issue. It is not therefore one that calls for

the amendment of the pleadings as a matter of necessity, for the purpose of

determining the real question in controversy between the parties. D

Accordingly I rule that neither does the question of limitation call for the amendment

of the defendant/applicant's WSD as a necessary measure for the purpose of

determining such issue in controversy between the parties. E

In the circumstances I dismiss this application with costs. Order accordingly. F

1995 TLR 172

A