Tanga Hardware and Autoparts ltd and 6 others vs CRDB ltd, Civil Appeal No 144 of 2005.

This case provide effects of amended plaint in court records.

the court held that, once ammenent of pleading done, the plaint instituted in the court takes has never existed in the court record.

IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAMCIVIL APPLICATION NO. 144 OF 2005

1.       TANGA HARDWARE AND AUTOPARTS LTD.
2.       DHARAT BHANGWANJI LAXMAN
3.       ROYHIT BHANGWANJI LAXMAN
4.       PUSHPA BHANGWANJI LAXMAN                           …… APPELLANTS
5.       HASSAN MOHAMED MSUO
6.       JOSEPHINE MBWANA GUGU
7.       BHANGWANJI MULJI LAXMAN

VERSUS

CRDB BANK LIMITED ……………………………………….. RESPONDENTS(Application for striking out Notice of Appeal fromthe decision of the High Court – Commercial Divisionat Dar es Salaam)(Dr. Bwana, J.)dated the 15th day of October, 2003inCommercial Case No. 80 of 2003————-R U L I N G

MROSO, J.A.:         On the 29th day of September, 2005 the applicants filed a notice of motion under Rule 82 of the Court Rules, 1979 which was duly supported by affidavit. The application in the notice of motion sought an order of the Court that a notice of appeal which the respondent had lodged in respect of an intended appeal to this Court be struck out for failure to take certain essential steps ? subsequent to the filing of the notice. Two grounds were listed which were that ?a)      

No leave was applied for and granted for the appeal, and

b)      

There was no valid extracted order in the record of appeal.Before the respondent could file an affidavit in reply the applicants filed another Notice of Motion on 25th November, 2005, this time under Rule 47 (1) of the Court Rules.

They were seeking leave of the Court to amend the original Notice of Motion by substituting fresh grounds for the original ones.        

In the affidavit in support of the notice of motion the applicants mention in paragraphs 3 and 4 the grounds in the original notice of motion and in paragraphs 7, 8 and 9 they highlight the essential steps which they allege the respondent had failed to take in the prosecution of the appeal after lodging the notice of appeal.

It is alleged first, that the respondent did not serve a copy of the proceedings and ruling of the High Court to the applicants. Second, that the respondent did not serve the applicants with a copy of the notice of appeal.

Third, that the respondent did not serve a copy of the memorandum of appeal on the applicants. The applicants state that they intended to include those allegations in the original notice of motion.    

     On the 8th of December, 2005, the respondent filed a counter-affidavit to the applicantsf original affidavit and disputed the allegation that leave to appeal was needed. It also averred that the record of appeal contained a valid extracted order.       

  In a reply to the counter-affidavit the applicants conceded that leave to appeal was not required. They also appear to concede that the extracted order in the record was valid and correct.

They explain however that the errors in the original notice of motion and its supporting affidavit were caused by their former advocate. They now want to rectify the errors by seeking leave to amend the original notice of motion. Mr. Mngoya, learned advocate for the applicants, has reiterated the contents of the notice of motion and the supporting affidavit for leave to amend the original notice of motion.

Mr. Mwandambo, learned advocate for the respondent, has submitted that since counsel for the applicants has conceded that the grounds in the original notice of motion are no longer relevant then there is nothing in it to be amended and it should be dismissed with costs.

He submits further that the application to amend the original notice of motion be struck out and that if the applicants now think they have meritorious grounds for striking out the respondentfs notice of appeal they should file a fresh notice of motion.      

   Rule 47 (1) of the Court Rules, 1979 empowers the Court, in a formal application to it, to grant leave to a party to amend a document. It reads to the extent relevant as follows ?47 (1) Wherever formal application is made to the Court for leave to amend any document, the amendment for which leave is sought shall be set out in writing and, if practicable, lodged with the Registrar and served on the respondent before hearing of the application—–      

   The applicants seem to have complied with Rule 47 (1) and the question is whether the original notice of motion can be amended in the manner indicated by the applicants. 

The crux of the application in the original notice of motion is that the respondentfs notice of appeal in Civil Appeal No. 100 of 2003 should be struck out on the ground that the respondent had failed to take essential steps after the filing of the notice. The proposed amended notice of motion would read ?

That further essential steps in the proceedings in the appeal has (sic) not been taken within the prescribed time.      

   The difference here is that whereas in the original notice of motion it is averred that the respondent had failed to take essential steps after filing the notice of appeal, the proposed amended notice of motion alleges that the respondent had not taken gfurther essential steps — within the prescribed timeh.

Thus, the original notice of motion claims that essential steps had not been taken at all. But the proposed amended notice of motion claims that gfurtherh essential steps were not taken within the prescribed time.    

The substance of the application in both the original notice of motion and in the proposed amended notice of motion is the striking out of the notice of appeal because essential steps had not been taken.

The instances of failure are however different. Those indicated in the original document were found by the applicants to be untrue and it is proposed to cite what the applicants now believe are the correct instances of failure on the part of the respondent.        

With respect, I am of the view that an amendment of the original notice of motion which will contain what are believed to be the correct instances of failure to take essential steps is within the scope of Rule 47 (1) of the Court Rules and I allow the application with costs.

The amendment should be made within three days of the delivery of the ruling.       

  DATED at DAR ES SALAAM this 6th day of March, 2006.J.A. MROSOJUSTICE OF APPEAL

         I certify that this is a true copy of the original.S.A.N. WAMBURASENIOR DEPUTY REGISTRAR