Nadan v Chandra [2003] FJHC 113; HBA0003J.2000S (20 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0003 OF 2000

Between:

VISHWA NADAN and
VINOD GOUNDAR
Appellants

and

SUBASH CHANDRA
Respondent

Ms. U. Fa with Mr. I. Fa for the Appellant
Mr. I. Razak for the Respondent

JUDGMENT

This is an appeal by the defendants in the court below (the ‘appellants’) against the interlocutory decision of the Resident Magistrate Ms Gwen Phillips delivered 23 September 1998 pursuant to the exercise by Her Worship of powers vested in her under section 27 of the Magistrate’s Courts Act Cap.14 (the ‘Act’).

Decision - Court Order

The Order of the Court appealed against is as follows (vide page 50 of the Record of Appeal):

I am allowing the amendment prayed for verbally. Clearly the evidence is that the plaintiff was not driving and I have accepted learned counsels’ submissions it was a typographical error. The rules permit such amendments to be made “at any stage of the proceedings”. It has been held that this includes even after judgment but on rare occasion. In view of the defendant's laxity in the conduct of this hearing, in failing to subpoena witnesses and mis-leading the court before commencement of trial that they were ready to proceed when clearly they were not. I have also considered it prudent that this ruling be made without taking further submissions which will only delay conclusion of this case in this court further.

Grounds of Appeal

The Grounds of Appeal are 4 in number and they are as follows:

1. THAT the Learned Trial Magistrate erred in law and in fact when she permitted the Plaintiff to amend his Statement of Claim after it became obvious from the evidence tendered by the Plaintiff’s witnesses that the facts as pleaded in the Plaintiff’s Statement of Claim was at variance with the evidence adduced by the Plaintiff’s witnesses and that the effect of the amendment to the Statement of Claim was to ensure that the facts the Plaintiff pleaded matched up with the evidence given by the Plaintiff’s witnesses after the Plaintiff’s witnesses had been subjected to cross examination and after the Plaintiff had closed his case and the Defendant was in the process of opening his Defence.
   
2. THAT the amendment permitted by the Trial Magistrate was prejudicial to the Defendant’s case as it related to a fundamental question which was in controversy between the parties and that was as to whether or not the Plaintiff was in fact lawfully driving his car at the date and time of the accident as pleaded by the Plaintiff in his Statement of Claim which plea was denied by the Defendants.
   
3. THAT the Learned Trial Magistrate erred in Law and in fact when she purported to exercise powers under s.27 of the Magistrates Court Act in permitting the Plaintiff to amend his Statement of Claim as the facts amended involved a key issue that was in dispute between the parties and evidence had already been put before the Court by the Plaintiff’s witnesses and Defendant’s witnesses on the matter indicating that the Plaintiff had not in fact been driving the car at the time of the accident contrary to what he pleaded in his Statement of Claim.
   
4. THAT the Learned Trial Magistrate erred in law and in fact when she permitted the amendments to the Plaintiff’s Statement of Claim as the exercise by her of her powers under the Magistrate’s Court Act was improper in the circumstances in that the amendments she granted prejudiced the Defendants and was as such contrary to Order IX rule 4 of the Magistrate’s Court Rules under the Magistrate’s Court Act Cap. 14.
   

Consideration of the issue

The background facts are that the action proceeded to hearing in the Magistrates’ Court on 23 September 1998 when the plaintiff opened his case and called his witnesses. After the close of his case, the plaintiff sought leave to have the Statement of Claim amended in accordance with the evidence adduced by his witnesses.

The learned counsel for the respondent/plaintiff submitted that it was discovered that the plaintiff’s driver and not the plaintiff was driving; he said it was a typographical error. He said that in the circumstances of this case he is entitled to apply to amend under Order 9 of the Magistrates’ Court Rules, Cap. 14. In support of his argument counsel referred the Court to the case of Fiji Electricity Authority v Balram & others 20 FLR p.20 where the amendment was allowed.

Under section 27 of the Act under which the Magistrate acted, provides in so far as it is relevant, as follows:-

27(1) “In every civil cause or matter which shall be instituted in any of the magistrates’ courts constituted by this Act law and equity shall be administered concurrently.

(2) A magistrate in the exercise of the jurisdiction vested in him by his Act shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or relief whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter; so that as far as possible all matters in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided.

(3) In all causes or matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same subject the rules of equity shall prevail.

And the Rules which provide for ‘amendment’ are outlined in Order IX Rules 4 and 5 of the Act Cap. 14 Volume II, Laws of Fiji and they are follows:

Rule 4: Particulars of claim shall not be amended except by leave of the court, but the court may, on any application for leave to amend, grant the same, on its appearing that the defendant will not be prejudiced by the amendment. Otherwise, the court may refuse leave or grant the same, on such terms as to notice, adjournment or costs as justice requires.

Rule 5: Any variance between the items contained in the particulars and the items proved at the hearing may be amended at the hearing, either at once or on such terms as to notice. Adjournment or costs as justice requires.

I have considered the submissions made by both counsel in this appeal.

It was at the close of the respondent’s (plaintiff in the Court below) case that the appellants’ counsel made application for adjournment of the case as they were not ready to proceed because their witnesses were not available contrary to the understanding by both the Court and the respondent that they would complete the hearing of the case on that particular day.

At the resumed hearing the respondent applied to amend as stated above which was allowed. By this time the appellants had not called any witnesses in their defence.

I find that the application was made at the right time, and under the Act and the Rules the respondent was entitled to make such an application although it was not made until after the respondent’s witnesses have been cross-examined. The application I hold was rightly allowed in the Court’s discretion.

It has been held that the Court is empowered to grant amendment even at appeal stage (Abhay Kumar Shankar, Arun Lata v Housing Authority, Lautoka Rural Local Authority FCA. Civil Appeal No. 55/91).

The principles involved in the determination of an application of this nature are quite clear on the authorities. It is pertinent to note the following passage from the judgment in the Fiji Electricity Case (supra) at 21:

“An amendment to pleadings may be permitted by the court at any stage of the proceedings for the purpose of determining the real question in controversy and, if it can be made without injustice to the other side should be allowed however late, and however negligent or careless may have been the first omission.”

In the context of this case the following statement from the case of Reddy Construction Company Limited v Pacific Gas Company Limited (26 FLR 121, FCA at 125-126) has also to be taken into account to see if any prejudice is likely to be caused to the appellants.

“The primary rule is that leave may be granted at any time to amend on terms if it can be done without injustice to the other side. The general practice to be gleaned from reported cases is to allow an amendment so that the real issue may be tried, no matter that the initial steps may have failed to delineate matters. Litigation should not only be conclusive once commenced, but it should deal with the whole contest between the parties, even if it takes some time and some amendment for the crux of the matter to be distilled. The proviso, however, that amendments will not be allowed which will work an injustice is also always looked at with care. So in many reported cases we see refusal to amend at a late stage particularly where a defence has been developed and it would be unfair to allow a ground to be changed”.

Conclusion

In the outcome, for the above reasons, in the light of the authorities the learned Magistrate was justified in the exercise of her discretion, taking into consideration that no injustice or prejudice will be caused to the appellants, allowed the amendment to the Statement of Claim so that the real issues are determined once and for all in one and the same action to avoid, inter alia, multiplicity of actions.

I conclude with the following remarks of Bramwell L.J. in Tildesley v Harper (10 Ch.D. pp 396, 397):

“My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side”.

There are no merits in the grounds of appeal filed.

The appeal is therefore dismissed with costs against the appellants in the sum of $250.00 to be paid within 21 days from the date of this judgment.

D. Pathik
Judge

At Suva
20 June 2003