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
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 ex-parte 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
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.