TANZANIA OLYMPIC COMMITTEE v A SIMBAULANGA 1997 TLR 184 (CA)

 

TANZANIA OLYMPIC COMMITTEE v A SIMBAULANGA 1997 TLR 184 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Makane JJA, Ramadhani JJA and Lubuva JJA

B

CIVIL APPEAL 6 OF 1996

Flynote

C Civil Practice and Procedure - Pleadings - Amendment of - Incorrect annexure

attached to plaint.

-Headnote

In an appeal against the decision of the High Court which had entered judgment

against the appellant under Order VIII Rule 14(1) it appeared that there had been

confusion between the parties as to the annexures to certain documents in the

pleadings.

D Held:

As long as the appellant had not been served with the correct annexure he could not

have meaningfully responded to the amended plaint or decided to rely on the original

written statement of E defence. It was therefore inappropriate in the circumstances

to apply Order VIII Rule 14(1).

Case Information

Appeal allowed.

No cases referred to.

F El-Maamry for the appellant.

Maira for the respondent.

[zJDz]Judgment

Makame JA:

The present respondent, Prof Adolphe Simbaulanga, sued the present appellant,

Tanzania Olympic G Committee, for a sum of money in connection with some

interpretation work the respondent had done at Morogoro during a wrestling

seminar. Apparently Prof Simbaulanga is proficient in the French language.

In this appeal the parties retained the same counsel they had in the court below: Mr

Said H El-Maamry and Mr Maira, learned advocates, for the appellant and the

respondent respectively.

In the original plaint, filed on 27 February 1992, the respondent asked for the

principal sum of Shs 440 000/= but this amount transformed into Shs 3,598,500/= in

an amended plaint filed in March 1993. Judgment for the higher sum was entered in

favour of the present respondent by Mackanja J I on 8 September 1994 under Order

8 Rule 14(1) of the Civil Procedure Code 1966. An

1997 TLR p185

MAKAME JA

application for Stay of Execution was allowed by Omar JA on 27 April 1995 and

apparently no A reference was taken from that decision.

There is no controversy that the appellant did not file an amended Written Statement

of Defence. Mr El-Maamry submitted, however, that Mackanja J should not have

proceeded the way he did and B entered judgment for the plaintiff, for one thing

because he, Mr El-Maamry could not have filed an amended Written Statement of

Defence because the amended plaint, as served upon his client, was incomplete in

that it did not have an important document, annexure C, to the amended plaint; and

for another, because, in any event, that was no occasion for Mackanja J to proceed exparte

C the way he did because there was a Written Statement of Defence, which

took the matter out of the ambit of the Rule 14 of Order 8 the learned judge

purported to apply. Mr El-Maamry further argued, for good measure, that he was

under no necessary obligation to file an amended Written Statement D of Defence.

What Mapigano J had done was merely to grant him permission to file an amended

Written Statement of Defence, if any: He did not order him to do so necessarily. He

asked for leave just in case he wanted to amend. E

On his part Mr Maira submitted that the respondent was served and that Mr Wambali

who represented the respondent in court (on 26 May 1993) conceded as much. He

argued also that while it was indeed optional for the appellant's counsel to file an

amended Written Statement of F Defence, counsel took that option and so, if he

changed his mind, he should have indicated that he was not going to exercise it, in

the event. According to Mr Maira, the appellant had abandoned the original Written

Statement of Defence for otherwise he would have indicated that he was going to rely

on it to contend the amended plaint. Mr Maira also urged that Mackanja J rightly

acted under G Order 8 Rule 14(1).

We have carefully considered the chronology of events and we are satisfied that the

rather frequent change of counsel might have helped to blur things. When on 26 May

1993 Dr Lamwai held the brief for Mr Maira he was wrong to assert that that would

be the third extension of time for filing the H amended Written Statement of

Defence. It would have been only the second, the only other one being on 21 April

1993 the first mention after Mapigano J's order that Mr El-Maamry be served with a

copy of the amended plaint. Also there was in any event no question of re-service of

annexure C I three weeks previously as there had not been any earlier service. We

1997 TLR p186

MAKAME JA

A are satisfied that both learned counsel, Dr Lamwai and Mr Wambali did not really

appreciate at that stage that there would be two annexures C. Mr El-Maamry did

point out to the Registrar of the High Court, in writing, that he had been furnished

with the wrong annexure C, that is 27 March 1991 letter from the appellant, and not

the right annexure C, a letter from the Civil Service Department B dated 8 February

1993, which is evidently what had made the amendment to be considered necessary.

Indeed the respondent must have contributed to the confusion because, even in this

Court's file, what appears as annexure C to the amended plaint, and stapled to the

latter, is still the C letter from the appellant. We agree with Mr El-Maamry that as

long as he was not served with the right annexure C he could not meaningfully have

responded to the amended plaint or decide to rely on the original Written Statement

of Defence. It was therefore inappropriate in the circumstances to D apply Order 8

Rule 14(1).

We accordingly allow the appeal and direct the High Court to order that the right

annexure C to the amended plaint, that is the letter from the Civil Service

Department dated 8 February 1993, be served on the appellant, the original plaintiff,

and that he be given time to file an amended Written E Statement of Defence. We

order also that costs for this present appeal should follow the event.

1997 TLR p187

A