TEACHING MANUAL

LEGAL DRAFTING AND WRITING V

SLW 305

FIRST SEMESTER LLB III

TOPIC ONE: LAW OF PLAINT

Laws to be applied:

 Civil procedure code.

 Magistrates Court Act.
 Land Dispute Court Act.
 The law of limitation Act.
 Government proceedings Act.
 The Local Government (urban) Authorities Act.
 The Local Government (District) Authorities Act.

Form and content of the plaint:

ORDER VII of the Civil Procedure code cap 33 R.E 2002 the plaint shall contain
the following particulars:-
1. The name of the court in which the suit is brought.
2. The name and description and place of residence of plaintiff.
3. The name and description and place of defendant.
4. The fact constituting the cause of action and when it arose.

CASES:-

DOMIN P.K.G. MSHANA PLAINTIFF V.ALMASI CHAND and THE

ATORNEY GENERAL CIV CASE 68 OF 1994 HCT@ DSM

‘’The question whether a plaint discloses a cause of action must be determined
upon a perusal of the plaint alone, together with anything attached so as to form
part of it and upon the assumption that any express or implied allegation of the
fact in it are true’’

JOHN M. BYOMBALIRWA V.AGENCY MARITIME INTERNATIONALE

(TANZANIA) LTD. (1983) TLR 1

‘’The expression cause of action is not defined under the code, but it may be taken
to mean essentially facts which it is necessary for the plaintiff to prove before it
can succeed in the suit’’

Mbassa v. Attorney General and others (Civil Appeal No.40 2002) TZCA 26

Where the plaint does not disclose a cause of action the proper action is for the
court to reject it the instant case, after the learned trial Judge had held that the
plaint did not disclose a cause of action, he should have rejected it under ORDER
VII Rule 11(a) of the civil procedure code, 1966, and not strike it out. On that
ground alone, and for the reason stated, we allow the appeal, quash the order of
striking out the plaint and substitute thereat with an order of rejecting the plaint.

5. The fact showing the court jurisdiction

Chilambo v. Murray and Roberts contractors (T) LTD case No.44 of 2005
TZHC

To end up with, I would say that there is no cause of action in this suit, and the
plaint is not in conformity with the requirement of a plaint under order vii r (f) of
the civil procedure Code, 1966.

6. The relief which the plaintiff claim.

CASES:

Hakim v. virian (T) LTD Application No 29 of 2005 CAT

So the applicant by not asking for an order for costs is deemed to have waived his

entitlement for the costs.

The court is not your mother can not grant what you didn’t pray.

7. Where the plaintiff has allowed a set-off claim or relinquished a portion of his

claim, the amount so allowed or relinquished

8. The statement of value of the subject matter of the suit for the purpose of

jurisdiction and of court fees so far as the case admits.

CASES:

Tanzania and China Friendship textile Company Ltd v. Our Lady of

Usambara Sisters TLR (2006) 70 It is substantive claim and not the general
damages which determine the pecuniary Jurisdiction of the court.

Heart international Limited and Hertz system inc. v. Leisure Tours and
holidays Ltd and 3 others. HCT@Dar es salaam.

Failure to disclose specific damages amount to struck off of the plaint.

 IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO …………OF……………

BEDA BEDA…………………………………….PLAINTIFF

VERSUS

SODA KWANZA LIMITED……………………….DEFENDANT

PLAINT

The plaintiff above named begs to state as follows:-

1. The plaintiff is a natural person residing and working for gain at Kimara
within the city of Dar es salaam .His address for the purpose of this suit shall
be P.O.BOX 70 Dar es salaam.
2. The defendant is limited liability Company incorporated under the
Companies Act Cap 212 R.E 2002.It is the manufacturer of soft drinks
namely soda and it is address of service for the purpose of this suit is Coca
Soda Kwanza, Sam Nujoma Road , P. O. B OX. 13 Dar es salaam.
3. The Plaintiff claim against the defendant is for General damage at the tune
of Tshs.200,000,000 arising out of the negligence act of the defendant .The
defendant being the manufacturer of Soda Soda beverage and in the cause
of their business sell the said beverage in the knowledge and with the
intention that the same should be consumed without any intermediate or
previously examination thereof and with knowledge that the absence of
 reasonable care in such manufacture would result in damage or injury to
person consuming the same.
4. On or about the 18th day of May 2009 the plaintiff while at Kimara Baruti
purchased soda soda beverage from small retailer shop at the same being
manufactured by the defendant. The plaintiff, if he would have consumed
the said beverage which was contained some injurious substance which was
not known, he would have sustained injuries, loss and damage.
5. The said injuries, loss and damage would have been occasioned to the
plaintiff by the reason of Negligence on the part of the defendant, their
agents or servants.

Particulars of Negligence

a) Manufacturing and selling the said beverage when they knew or ought to
have known that the same contained extraneous or deleterious substances
the consumption of which would cause damage or injury to the consumer.
b) Failing to take any adequate or necessary precautions in the manufacture of
the said beverage so as to prevent any injurious or deleterious substance
being contained therein.
c) Permitting the said beverage to contain injurious or deleterious substances.
d) Failing to take any adequate measures whether by way of examination,
inspection, test or otherwise to ensure that the said beverage manufactured
or sold by them contained any injurious or deleterious substances.
e) The plaintiff will further rely on the doctrine of res ipsa loquitur.

6. Despite several demands has refused to heed to the same.

7. The cause of action arose at kimara within the city of Dar es salaam and amount
claimed as damage is well within the jurisdiction of the honorable court thus seized
with jurisdiction to entertain this suit.

WHEREFORE the plaintiff prayers for judgment and decree are as follows:-

i. General damage at the tune of Tsh.200,000,000

ii. Interest on the decretal amount at the court rate from the date of judgment
up to the date of payment
iii. Costs and any other relief that your honorable court may deem fit to grant.

Dated at Dar es Salaam………………this ……………….day of……………2009

……………………………………

BEDA BEDA.

VERIFICATION.

All that is stated above from paragraph 1 to 7 of this plaint are correct to the best of
my knowledge

Verified at Dar es salaam this ……………day of……………2009

………………………….

BEDABEDA

Presented for filling this ……………………………day of……………….2009

 …………………………
Registry officer

DRAWN AND FILED BY:

The plaintiff

COPY TO BE SERVED UPON:

Soda Kwanza Limited,

Sam Nujoma Road,

P.O.BOX 13

DAR ES SALAAM.
Step Governing Provisions

1. Once a dispute exists, demand Advocate’s remuneration and taxation

letter to the defendant of costs. Rules r. 61

2. Parties to the suit (whom you S.7of CPC. Ss. 40, 41 of MCA, 1984

want to sue) and S.2of JALO Cap. 453

3. Jurisdiction of courts Section 13 of CPC

4. ( Pecuniary &Geographical ) S. 8 of CPC ) Whether there is a

5. Place of suing foreign judgement )

6. Cause of action (land, tort, S.9 of CPC) Ss. 11 and 12 of CPC

contract, etc.) Section 10 of CPC

7. Res sub judice

8. Res judicata

9. Whether suit is barred by law,

example, and limitation.

Place of suing.

S.13 of the CPC provides that every suit shall be instituted In the court of the

lowest grade competent to try it. The first question is therefore which court has the

jurisdiction. According to the case law, s.13 is a rule of procedure and is not a rule

of jurisdiction. In other word, s.13 does not give a court jurisdiction which it does

not have and conversely it does not deprive a court of jurisdiction which it already

has it simply states where the suit should be instituted.

Where to file what.

(ss.14, 15 and 16 of CPC)

If the dispute relates to immovable property, s.14 of the CPC demands that it

should be field in the court of the lowest grade which has territorial jurisdiction in

the area in which the property is situated. Such dispute commonly relate to

recovery or possession of land, rent, mortgages, etc.

Where the property is situated in two territorial jurisdiction the suit can be filed in

either of the court in respect of any other claim ,the suit should be filed in the

court of the lowest grade competent to try it –either where the cause of action rose

or where the defendant habitually resides or work for gain.

These provisions are subject to power conferred to the Resident magistrate. The

resident magistrate has power to order transfer of the suit if it is filed in a place

where there is no concurrent jurisdiction.

NB: The limiting factors are only applicable to court subordinating to the high

court.

Effect of lack of jurisdiction

The question of jurisdiction is fundamental, thus, any trial of a proceeding by a

court which have no jurisdiction to try it will be declared a nullity. On revision or

appeal. The fact that the parties can chose to have a proceeding heard in a

particular court is not enough to confer jurisdiction on such court if in fact the

court has no jurisdiction to try the suit. Parties cannot by consent confer

jurisdiction to a court which prima facie has no jurisdiction.

CASES:

1. Director of public prosecution v. Farid Had Ahemedi and 9 others

criminal appeal No 96 of 2013.
2. Fanuel Mantiri ng’unda v.Herman Ng’unda and others civil Appeal
No,8 of 1995
3. Richard Julius Rukambura v.Isaac N mwakajira and another(CAT)
civil appeal No 3 of 204
4. Baig and Balt construction ltd v.Hasmati baing Appeal No,3 of 2004
‘’The settled law is that proceedings entertained by a court or tribunal without

jurisdiction, and a judgment decision or ruling emanating from those proceedings

are nullity’’

REJECTION OF PLAINT ND POSSIBLE PRELIMINARY OBJECTIONS TO

BE RISED ON FACE OF IT

ORDER VII RULE 11

The plaint shall be rejected in the following cases:-

1. Where it does not disclose cause of action

2. Wrong parties/name of the parties
3. Where the relief claimed in undervalued and the plaintiff on being required
by the court to correct valuation within a time be fixed by the court, fails to
do so
4. Where the suit appears from the statement in the plaint to be barred by the
any law.

WRITTEN STATEMENT OF DEFENCE

Founded under order viii of the CPC which requires following:-

1. New facts must be specially pleaded

2. Denial must be specific.

FORM AND CONTENT OF WRITTEN STATEMENT OFDEFENCE:

 IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

COMMERCIAL CASE NO.80 OF 2017

AFRICAN GROUP (T) LIMITED………………………………….PLAINTIFF

VERSUS

HEMED MANGI……………………………………………………DEFENDANT

WRITTEN STATEMENT OF DEFENCE

The defendant above named in defense to the claim, begs to state as follows;

1. That paragraph 1 and 2 of the plaint are noted save for the address of

service of the defendant that for the purpose of this suit shall be in the care

of;

Mawakili Nguli,
Plot No.352/64 makunganya Street, Shinyanga,
P.O.Box 129,
Dar es Salaam.
2. That the content of paragraph 3 are vehemently disputed for the being

frivolous, unfounded and untrue. The plaintiff is put in strict proof thereof.

The defendant further avers that the plaintiff is not entitled to any relief

claimed, be it declaration, damages or costs. The defendant states that he has

never sold the alleged 20 shares or any shares to the plaintiff of anyone else
 as alleged or at all. The defendant maintains that he still hold 20 shares, the

same number he did when the company was registered.

3. Paragraph 4 of the plaint is noted. It is however stated that the plaintiff on

the 11thJanuary, 1991 sold it’s all its shares (40 shares) to one farida Nilsson

and therefore ceased to be member of the said AFRICAN

CONSTRUCTION CO.LIMITED.

4. That paragraph5 of the plaint is vehemely disputed and the defendant states

that all the averments therein are vexatious and frivolous. The plaintiff is put

in strict proof thereof .in further defense to the claim, the defendant states

that the said meeting never happened and he never signed nor took part in

annexture ‘c’ OR Annexture ‘D’ to the plaint ,or any other document with

the effect of selling any of his share in the company. The defendant further

stated that he never took part in any meeting that was to the effect of making

one ‘’Ulf Nilsson’’ the director of the company. All such averments are

vexatious and the said Defendant’s signature on Annextures ‘C’ and ‘D’ to

the plaint are forgeries and the plaintiff is put to strictest proof of the said

deed of share transfer and the said Board Resolution. It is also averred that

the plaintiff’s Ulf Nilsson, in 31stDecember,1998,purpoted to purchase the

Defendant’s 20 shares in the shareholders meeting of which the Defendant

himself avers that he was absent in the meeting, and also, the alleged
 signature of Farida Nilsson is forged since the defendant understands that

only the said Ulf Nilsson and David Mahende were in that meeting and the

former forged the signature of his wife (farida Nilsson) who was absent. The

minutes of the said meeting is herewith annexed as annexture SM-1 to the

defence forming part hereof.

5. In further reply to the averments of paragraph 5,the defendant avers that the

said Farida Nilsson who is purported to have been present at the alleged

made up meeting of 12th September ,2000 and who alleged to have signed

the said minutes(annexure C) has never taken part in any company’s

matters and was never around .the said signature is an obvious forgery just

like all other signature In the two annextures (C) and D to the plaint ) and in

annexture SM-1 hereinabove .A copy of the share transfer certificate dated

11thJanuary ,1991 as averred in paragraph 3 above is herewith annexed as

Annexture SM-2 to show the actual signature of the said Farida Nilsson.

The Defendant craves for leave of the court to refer to the said certificate as

part of this defence.

6. Likewise, the Defendant avers that the plaintiff’s assertion as to the sale of

the 20 shares by the Defendant is both frivolous and embarrassing, as due to

Annexture SM-1 herein (which is also denied), the Defendant had already

sold his shares to Ulf Nilsson on the 31/12/1998 and therefore on the alleged
 15thSeptember, 2000 he (the defendant) had nothing to sell or transfer to the

plaintiff alleged. The Defendant states that the allegations by the plaintiff are

clearly contradictory and unfounded especially with the fact that the law

required that a construction company such as Afriscan Construction Co.

Limited required for a registered engineer such as the Defendant at all the

G.P Jani Properties Ltd v. Dar es Salaam City Council, (1964) E. A 281

the defence argued on appeal that a certain planning scheme in the City of

Dar es salaam, on which plaintiff’s suit for recovery of two sums of money

was based, was ultra vires. This matter, however, had not been pleaded and

leave to amend the written statement of defence in order to include such plea

had not been sought at the earliest possible moment.

7. Denial must be specific

The defendant denial to any fact alleged in the plaint must be specific.

Specific denial means express, clearly and unequivocal denial by the

defendant of the allegations of the plaintiff. This is done by the defendant

taking each fact which is alleged in a separated paragraph of the the plaint

against him, separately.

The denial must be specifically with each allegation of fact the truth of

which he does not admit.

Yusuf Ali Mohamed Osman v. D.T Dobie & Company (1963) E.A 288.
General traverse is a denial whereby the defendant joins/combines more than

one paragraph of the written statement of defence.

The written statement of defense was defective for failure to comply with

Rule 3 of Order 8.

In preparing his defence the defendant may raise the following four special

defences:-

(i) Preliminary objection

(a preliminary objection consists of a point of law which has been pleaded or

which arises by clear implication out of the pleadings and which, if

argued as preliminary objection may dispose of the suit. Mukisa

Biscuit Manufacturing Co (1969) E.A 696

Bring third party proceedings instead of commencing a separate suit against

the third party.

The procedure in which a defendant can join a third party is called a third

party procedure.

Example. When a party has been sued on contract in connection with the

business of the partnership, it can apply to court for a third party

notice so that other partners should contribute equally to the claim.

In simple damage suits, defendant cannot apply or third party notice.

 Example. A sues B for trespass to land and if B has entered the land by the

permission of C,B cannot apply for a third party notice contract or

misrepresentation. This was the building in the case of Edward

Kibonge Kaggwa v L. Constaperai & Another (1963). E.A 213.

Held:

1. By the term of 0.1 r. 18, the court had to consider whether there was a

proper question to be tried as a liability or a third party to make contribution

or indemnity.

2. No right to indemnity arose as a result of a grant of licence by Njoki to the

defendant and accordingly there was no question to be tried as to liability.

The above case emphasizes the point that in order for a third party

procedure to apply, the wrong act must arise from the same cause of action.

That is so because the aim of the third party procedure is to attempt to avoid

multiplicity of suits as regards the same cause of action.

Case: Yafesi Walusimbi v A.G of Uganda (1959) E.A. 223

Held:

In order that a third party is lawfully joined, the subject matter between the

third party and defendant must be the same as the subject matter between

the plaintiff and defendant and the original cause of action must be the

same.
The anatomy of the third party procedure:-

a. An application for the leave to file a third party notice is usually

made ex-parte. (O.1r 14)

The application must be supported by an affidavit which contains;-

Affidavit is a written document containing material and relevant facts

or statement relating to matters in question or in issue and sworn or

affirmed and signed by the deponent before a person or officer duly

authorized to administer any oath or affirmation or take any affidavit.

DB Shaprya & Co Ltd v. Bish International BV, Civil App 53 of

2002 CAT@Dsm.

Affidavit is a written statement of oath; it has to be factual and free

from extraneous matter such as hearsay, legal arguments, objections,

prayers and conclusion.

Mustapha Raphael v. East African Gold Mines Ltd. Civil Appeal

No.40 of 1998. CAT@Dsm.

An affidavit is used in a court to support a formal application before

a District Court, Resident Magistrate Court and High Court

accompanied with Chamber Summons.

A formal application before a Court of Appeal is made by a Notice of

Motion supported by an affidavit of a person having knowledge of

the facts. (Order XLIII Rule 2)

An affidavit is evidence and therefore it should be made on either

oath or affirmation.

Tanzania Transcontinental Trading Co Ltd v. Design Partnership

Ltd.

What is important is that a deponent is either sworn or is affirmed,

mixed up the two not fatal and harmless.

An affidavit is required to contain only matters of facts and not

arguments and matters of law.

An affidavit must contain facts which the deponent is able of his own

or her personal knowledge to prove exception is interlocutory

application 19 Rule 3.

Civil application No.31/00-Benedict kimwaga vs. principle

secretary, Ministry of

Health.CA at Dar.’’If an affidavit mentions another person, then

that other person has to swear an affidavit.

Verification clause

a) Nature of claim made by the plaintiff

b) The stage that the proceedings in the suit have reached.

c) Nature of the claim made by the applicant against the third

party and its relation to the plaintiff.

d) Name and address of the third party.

ii. The grant of the leave to present the third notice. The

orders should contain directions relating to the period within

which such notice may be presented and other matters the

court think fit.

iii. The third party notice should contain:-

a. The Nature of the plaintiff case against defendant.

b. The Nature of the defendant claims against the third

party.

c. The relief claimed by the defendant against the third

party.

d. The period/time which the third party may present his

defence.

e. Consequence on failure to file his defence.

IV The third party may wish to dispute claims by filing

a written statement of defence in 21 days

Law of applications

Affidavit (order xix Rule 1)

1. Meaning of affidavit

LAW ON PLEADING

Order VI Rule 14-17

Rule.14

Every pleading shall be signed by the party and his advocate(if any):provided that
where a party pleading is, by the reason of absence or for the other good cause,
unable to sign the pleading, it may signed by any person duly authorized by him to
sign the same or to sue on his behalf .

A party or an authorized person must sign: this authorized person must be the one
who authorized to prosecute the case.

If a person engages advocate to pursue the case, the advocate must sign too.

ERNEST MANENO SHIJA V.MZINGA COOPERATION civil case

No.196/2003

The written statement of Defence filed on behalf of the Applicant/Defendant is a

pleading signed by a ‘’person duly authorized by him to sign the same’’, within the
meaning of Order VI Rule 14.since the written statement has been verified and
signed by the said state Attorney and in the verification the State Attorney and has
shows that what is stated in paragraph 2, 3, 4 and 5 is based on information
received from the defendant,
In the case cropper vs. Smith (1884) Ch.700, the English court (Bowern
L.J.)Observed that:-

‘’I think it is well established principal that the object of the court is to
decided the rights of the

Parties and not to punish them for mistakes they make in the conduct of
their cases by deciding

Otherwise than in accordance with their right’’

VERIFICATION OF PLEADINGS

1) Save as otherwise provided by any law of the time being in force, every
pleading shall be verified at the foot by the party or by one of the parties
pleading or some other person proved to the satisfaction of the court to be
acquainted with the facts of the case.
2) The person verifying shall specify, by reference to the numbered paragraph
of the pleading, what he verifies of his own knowledge and what he verified
upon information received and believed to be true.
3) The verification shall be signed by the person making it and shall state the
date on which it was signed.

Noremco v Dawasa HCT Comm. case No.47/2009

Want of defect verification does not make pleading void, it is mere irregularity
which is curable for amendment.
On the preliminary objection raised by the learned counsel for the Defendant that
the verification clause in the plaint is defective for not showing the place and date
of verification, the learned counsel of the plaintiff has readily conceded. With due
respect to the learned counsel for the defendant this is not a fat error attracting the
drastic measures proposed. It is an error which is curable by simply amendment of
the pleadings. I am therefore at one with the learned counsel for the plaintiff that
this error is not that fatal and is easily curable as was aptly stated by Samata, J (as
he then was) in PHILIP ANANIA MASASI VS RETURNING OFFICER
(NJOMBE NORTH CONSTITUENCY) AND 2 OTHERS Misc civil cause No.
of 1995 (High court) (unreported),that ‘’want of ,defect in, verification does not
make pleading void; it is mere irregularly which is curable by amendment’’

In the up short and for the reasons I have explained above the preliminary
objection raised by the learned counsel for the defendant, to the content indicated
above, are hereby dismissed with costs, which costs shall be in cause .Equally ,the
preliminary objections raised by the learned counsel for the plaintiff, are to the
extent shown above also dismissed with costs, which costs shall be in the cause. it
is accordingly ordered.

………………………………………………………
….

R.V. MAKARAMBA

JUDGE

23/10/2009
POLY-MED(TANZANIA) LIMITED V BAGCO LTD Civil Case No360 of
1998HCT@DSM Unreported.

A pleading which is not property verified in that manner required by the law may
be verified at a letter stage of a suit ,even after the expire of the limitation period
the omission to verify a pleading is a mere irregularity and where a verification
of plaint or petition is defective, that should not normally be rejected but an order
should be made its amendment.

STRIKING OUT PLEADING

The court may at any stage of the proceedings allow

AMENDMENT OF PLEADINGS

Amendment of pleading is basically for the purpose of bringing about final

adjudication in a suit and to avoid multiplicity of proceedings. It is in the interest
of justice that a suit shall be decided on all points of controversy and accordingly it
is needed that the party shall be allowed to alter or amend their pleadings during
the pendency of the suit. There can be a situation where there is change of
circumstances In the course of pendency of a proceeding and if a matter in issue
arises upon such change of circumstance, then the amendment becomes necessary.
Amendment of pleadings is provided under order VIII Rule 17 of the code of civil
procedure, Cap 33 R.E of 2002, which read as under:
According to Order VIII Rule 17 of the code of civil procedure, Cap 33 R.E of
2002,the court may allow the amendment at any state of the proceeding and for
such purpose it may impose condition i.e. in the form of cost or any other
condition. The court has been given discretion in this regard and the mandatory
guidelines upon the party seeking amendment is that they shall make only such
amendments which are necessary for determination of real controversy between
the parties to the suit. at the same time, the proviso to order VIII Rule 17 put a
mandate upon the court not to allow such amendment after the trail has begun (i.e.
if issues have been settled),if it finds that the party could have raised the
pleadings by due diligence at an earlier point of time.

However, the proviso need not to be given a very rigid effect in all cases as the
same is subject to the discretion of the court. The main object of the legislation is
to enable the court to allow amendment at any stage. The purpose of the proviso
cannot do away with the intent of the legislation.Thus,if an application for
amendment of pleadings has been filed after trial has begun, the court will
normally be tilted against the applicant, if it could be raised by due diligence at
any earlier stage of proceedings. But in proper cases if the point to be amended is
very essential to the suit, the court may, in the interest of justice and equity, allow
the amendment on such conditions as the court deems fit and proper in the facts
and circumstances of the particular case.

It was held by the Honorable supreme court in Salem Advocate case that by the
2002 Amendment, which added the provision to Order VIII Rule 17, the burden of
proof has been shifted upon the applicant who makes the application for
amendment after the trial has commenced, to prove that despite due diligence he
could not have raised the issue before the commencement of trail .this is for the
purpose of preventing frivolous application to delay the proceedings.
Guidelines for amendment of pleadings

 Cause of action in a suit cannot be altered by the amendment of the

pleadings. The cause of action will not be allowed to be substituted in
totality and the reason being that the cause of action is the very basis of a
suit. If a new/distinct cause of action is there the parties are always free to go
to the court with such cause of action in an independent suit. But there can
be cases where the cause of action has got further aggravated by any further
violation or same continuing cause action which has joined in the present
suit due to the subsequent change of circumstance. In such cases, the court in
its discretion is free to allow the amendment as that would not be a cause of
substitution of cause of action.
 The amendment of pleadings shall be allowed to bring or to clarify all matter
in issue before the court. The matter in issue is essential for the
determination of the suit and therefore amendment can be made. Similarly,
relief also can be amended in such cases, if the amendment is not allowed,
the bar of res judicata or as the case may be, the bar of the order II Rule 2 of
the code of the civil procedure, Cap 33 R.E 2002, may apply. Therefore ,the
court should try to bring a balance between the injustice that might be
caused to the applicant in the case of refusal to grant relief and at the same
time, in case of allowing the application, the requirement of injustice caused
to the other party in the present suit.
 If a right has already accrued in the pleadings to the opposite party, then the
court shall normally be reluctant to allow the amendment of
pleadings.However, in such cases, if the loss that will be cased to the other
party can be adequately compensated for by cost then amendment shall be
allowed.
  When the court hears the application for amendment of pleadings it does not
go into the merit of the case .while considering the prayer for amendment of
the pleading, the court cannot go into the issue of merits vis-à-vis
maintainability of the suit, but can consider only whether the amendment is
necessary to determine the real controversy between the parties.
 If there is an undue delay in the filling of the application for amendment,
without there being sufficient cause shown to condone the delay, then the
court may normally not allow the amendment.
 Change of law: the law can be a change of substantive law either prospective
or retrospective. If it is a prospective change then it normally not effect
cause of action and matter in issue in the pending suit and therefore,
amendment might be needed. Whereas it is a retrospective changes,
amendment might be needed and shall be allowed. If it is a change of the
procedural law then normally pleadings will not be allowed to be amended
but the court shall itself take note of the change of procedural laws.

Further, Order VIII rule 18 of the code of Civil procedure, Cap 33 R.E of 2002
casts a duty on the party to carry out the amendment, if allowed by the court,
within the time limited for the said purpose by the order and if no time is thereby
stated, then within 14 days from the said date of order. In case the party fails to
carry out the amendment within the said period, he shall not be permitted to carry
out the amendment after the expiration of time limited, unless the time is further
extended by the court.

Conclusion

In view of the aforesaid, it can be concluded that the amendment of pleadings

cannot be claimed by the party as matter of right nor can be denied by the court
arbitrarily .However, the discretion to be exercised by the court is guided by the
principles mentioned hereinabove and depends on the facts and circumstances of
each case.Thus,rational behind the provision of Order VIII Rule 17 of the code of
Civil procedure, Cap 33 R.E 2002 can be summarized as ‘’Court shall allow
application of amendment if an amendment really sub serves ultimate cause of
justice and avoids further litigation’’.

Case to read:

James Funke Gwagilo v Attorney General, Civil Appeal 67 of 2001 CAT@DSM

James Mabalo KapSalala v. British Broadcasting Corporation Civil Appeal No 43

of 2001CAT@DSM