IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM
CIVIL CASE N0. 11 OF 2021

PAULO ELIAS MARO……………..………………………PLAINTIFF

VERSUS
AMIN KIBWANA KONDO……………….……………… DEFENDANT
RULING
21 st Feb & 4 th April 2023

MKWIZU, J: -
The plaintiff is suing the Defendants for the sum of Tanzania shillings five
hundred eight million (Tshs 508,000,000/=) being general damage for
libel. The plaintiff indicts the defendants for falsely and maliciously
publishing a notice addressed to the plaintiff copied to the Ten cell leader
of Bukoba Street, the chairman of the Kasulu Street local Government,
the secretary of the Ilala Ward Tribunal, the Officer Commanding station
Pangani Police Station and the District Land and Housing Tribunal
requiring the Plaintiff to vacate house No. 50 Bukoba street Bungoni, Ilala
Municipality branding the plaintiff as a person suffering from sexual
jealously consumed by sexual jealously, a criminal offender, a dangerous
person not fit to own a firearm and a trouble maker.

The suit is contested by the defendant through a written statement of

defense.

When the matter came before the court for hearing on 16/2/2023, the
Plaintiff was in person / unrepresented whereas the defendant had the
services of Mr. Jonathan T. Kessy the learned advocate. The plaintiff

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prayed for leave to file a reply to the amended written statement of
defence and the defence counsel expressed his intention to file a
preliminary objection in court. Considering the need to have the
preliminary objections heard first before further steps are taken in a
matter before the court, the defendant was allowed to file his preliminary
objection first on 20/2/2023 and have the same determined before the
plaintiff is permitted to file a reply to the defence. The defendant’s
objection was drafted that:

That the amendment plaint is incurably defective for violating

a mandatory provision of Order VI Rule 17 of the Civil
Procedure Code, Cap 33 [R: E 2019].

At the instance of the plaintiff, the hearing of the preliminary objection

was conducted through written submissions. Submitting in support of the
preliminary objection, the defendant’s counsel notified the court that
during mediation parties had agreed to settle the matter through
mediation and several terms were agreed upon by both parties including
a term that required the plaintiff to amend the plaint to exclude from this
case SELEMAN KIBWANA KONDO who was appearing as 1st defendant
in this case. He contended further that after the mediation, the trial judge,
on 10th August 2022 was notified of the existence of the Consent
Settlement Order, and each party was availed time to effect the agreed
amendment.

It was the defendant’s submission that the plaintiff misused and violated
the Court order by amending his plaint beyond the authorized scope.
Relying on Order VI Rule 17 of the Civil Procedure Code, Cap 33 [R: E
2019] and the cases of Rosebay Elton Kwakabili Vs Aziza Seleman

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& 2 Others, land case No.57 of 2019, HC Land Division, Dar es Salaam
and Peter Wagesa Chacha Timasi and 2 Others v North Mara Gold
mine Limited, civil Appeal No 49 of 2020(All unreported), the learned
counsel said, while the order for the amendment had directed the plaintiff
to remove the 1st defendant in the plaint, his amended plaint went to
insert new facts (paragraph 5) and annexures as supporting document
contrary to the court’s order.

The plaintiff’s submissions in support of the preliminary objection

were brief and focused. While admitting that the consent settlement order
dated on the 22nd day of June 2022 in mediation No. 133 of 2022, had
directed him to amend the plaint to drop 1 st defendant Selem an
K ibw ana K ondo in this case and proceed w ith 2 nd defendant, he
said the consent settlement order could not be complied with by the
plaintiff without reference to a letter written by the defendant on behalf
of Suleiman Kibwana Kondo, the then, 1st defendant who was the
landlord of the plaintiff. He argued that the added facts were not at all
raising a new cause of action but basically for clarity to enable
determination of the real controversy between the parties. And in any
case, he said, the amendment is not likely to cause any serious injustice
to the defendant. The passage in Mulla on Civil Procedure Act of 1908,15th
volume 11-page 1195 on the provision of Order VI Rule 17 of the Civil
Procedure Code, Cap 33 [R: E 2019] was cited in support of his
submissions stating that the object of rule 17 is to allow an amendment
to determine the real questions in dispute between the parties.

He was of the view that in case the court is minded to agree with the
Defendant’s submission that the amended plaint is defective for violating
the mandatory of Order VI Rule 17 of the Civil Procedure Code, Cap 33

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[R: E 2019], the appropriate remedy is not to dismiss the suit based on
the defects in the amended plaint but strike out or expunge from record
paragraph 5 of the amended plaint and proceed with the matter from
where it was immediately before the order of amendment was made. He
finally urged the court to find the preliminary objection devoid of merit
and dismiss the same with costs.

I have considered the party’s submissions for and against the preliminary
objection. The issue for determination is whether the preliminary
objection has merit. The amendment of pleadings is not a new
phenomenon in our laws. It is well guided by the provisions of Order VI
Rule 17 of the Civil Procedure Code, Cap 33 [R: E 2019] which provides:
-

“The court may at any stage in the proceedings, allow

either party to alter or amend his pleading in such manner and on
such terms as may just, and all such amendments shall be made as
may be necessary for determining the real questions in controversy
between the parties”.

Gathered from the above provision is that pleadings can be amended

at any stage of proceedings provided they are necessary for the
determination of the real questions in controversy between the parties
and if they are incapable of causing injustice to the other party. See the
decision in Dr. Fortunatas Lwanyantike Marsha Vs Dr. William
Shija &Attorney General, Misc. Civil Cause No. 15 of 1995, HC of
Tanzania at Mwanza(unreported), Central Kenya Ltd v. Trust Bank
Ltd [2000] 2 EA 365

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 Both parties seem to agree on this legal position. The defendant points
however that the amendment effected by the plaintiff was beyond the
scope of the court’s order that allowed the said amendment. I have
revisited the records, indeed, the 1st and 2nd clause in the consent
settlement order dated 22/6/2022 attached to the amended plaint is
specific to what the plaintiff ought to have done. The clauses read:

1. The plaintiff is going to drop the 1st defendant Suleiman

Kibwana Kondo in civil case no 11 of 2021 as well as in Land
Case No 294 of 2020 the 1st respondent and proceed with the
second defendant Amini Kibwana Kondo whose the 2nd
Respondent in land Application No 294 of 2020

2. The plaintiff shall amend the plaint to reflect the above-agreed

subject.

I am aware of the decision of the court in Jovent Clavery Rushaka and

Another v. Bibiana Chacha, Civil Appeal No. 236 of 2020 (unreported),
where it was observed that:

"It is settled law that a pleading can be amended at any

stage of the proceedings only to the extent allow ed
by the court on such terms as may be just and such
amendment should be limited to what will be necessary
for determining the real question in dispute between the
parties." (emphasis supplied)

See also Salum Abdallah Chande t/a Rahma Tailors v. The Loans
and Advances Realization Trust (LART) and Two Others, Civil
Appeal No. 49 of 1997 (unreported). Meaning that the amendments are

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to be confined to the directives of the court. The parties have no room to
modify the already filed pleadings as they wish.

As admitted by the plaintiff, the amendment was only concerning the

removal of the 1st defendant, one Suleman Kibwana Kondo in this suit,
but the plaintiff went ahead to introducing new paragraph 5 with new
facts altogether without the court’s permit against the settled principle
that requires parties to abide with the Court orders. This position was
emphasized in the case of Tanzania Harbours Authority versus.
Mohamed R. Mohamed (2002) TLR 76, that
"Court orders are binding and are meant to be implemented.
They must be implemented. If such orders are disrespected,
the system of justice will be rendered useless and it will create
chaos that everyone will decide to do anything that is
convenient to him, the court is duty-bound to make sure that,
the rules of the Court are observed strictly, and it cannot aid
any party who deliberately commit lapse.”
I do not doubt that the amended plaint is fatally defective for failure to
comply with the court’s order. The only remedy available is to have the
same struck out from the records. The preliminary objection is thus
sustained, and the amended plaint is struck out with costs.

Dated at Dar es Salaam this 4th day of April 2023.

E. Y Mkwizu
Judge
4/4/2023