Brumet V.O.F. vs Victoria Fisheries Limited and Another (Commercial Case No. 41 of 2000) [2000] TZHC 330 (22 September 2000)

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO.41 OF 2000 BRUMET V.O.F. ---------------------------- PLAINTIFF VERSUS VICTORIA FISHERIES LIMITED ] FRANK F. MAREALLE, DIRECTOR] --- DEFENDANTS R U L I N G KALEGEYA, J. Mr. Mkatte, Advocate, for the applicant/Plaintiff prays for leave to amend the plaint. As a to basis for his application the Learned Counsel submitted that, if leave is granted, he will include in the plaint not any new cause of action but only further particulars which clarify the relationship between the parties. In the process he referred this court to two decisions of the defunct Court of Appeal for East Africa - Africa Overseas Trading Company vs Tansukh, & S Achary (1963) EA 468 and Eastern Bakery vs Castelino (1958) EA 461 at 462. He argued his application exparte because though notified the other parties did not bother to appear. Although the application is being made at a stage where further orders have already been made by the court, i.e directions as to the filing of the written statement of defences, rejoinder and submissions on an application for temporary injunction, regard being had to submissions made, supported by the affidavit of Anthonius Bronkhorst; and also considering the legal stand that the court can grant leave to parties before it, at any stage of the proceedings, to amend their pleadings for the purposes of enabling an arrival to a just decision on the controversy between them (O.VI, Rule 17 CPC), this court finds proper to grant the leave prayed for. - I should however, in passing add that, although Mr.Mkatte when citing the two authorities referred to above was labouring to establish that the amendment is not intended to add any new cause of action, that was not necessary. It matters not whether the amendment is intended to add a new cause of action or even cure a defective plaint by putting in a cause of action which lacked in the former pleading. The cited authorities

.1 2 portray a legal stand which was in existence before the amendment (vide GN 228/7 1) of O.VII, Rule II CPC. The said amendment added a proviso to the following effect:- "Provided that where a plaint does not disclose a cause of action or where the suit appears from the statement in plaint to be barred by any law and the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a cause of action or, as the case may be the suit will cease to appear from the plaint to be, barred by any law, the court may allow the plaintff to amend the plaint subject to such conditions as to costs or otherwise as the court may deem fit to impose" (emphasis mine). For reasons discussed, leave to amend the plaint is granted as prayed. The same to be filed within 4 days of delivery of this ruling. L.B.Kalegeya, Judge Delivered in the presence of Mr. Mkatte. L.B.Kalegeya, Judge 22/9/2000