Sami v Devi [2012] FJHC 1322; HBC91.2010 (11 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 91 of 2010

BETWEEN :

PUN SAMI of Lot 26 Mandir Street,

Nakasi. Nasinu in the Republic of Fiji, Retired.

PLAINTIFF

AND:

LATCHMI DEVI of Nakasi,

Nasinu in the Republic of Fiji, Domestic Duties.

1st DEFENDANT

AND:

REGISTRAR OF TITLES OFFICE

2nd DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Ms. R. Naidu for the Plaintiff
Ms. Prem Narayan for the 1st Defendant

Date of Hearing : 6th August, 2012

Date of Ruling : 11th September, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff is seeking to nullify a transfer of a deed based on forgery on the part of the 1st Defendant. The Plaintiff had ex-parte obtained restraining orders against the 1st Defendant in 2010 and after two years now seeks to amend the statement of claim. The reason for delay in this application is not explained by the Plaintiff. The Defendant has filed an affidavit in opposition, but the Plaintiff neither filed any affidavit in reply nor filed any affidavit in support of the proposed amendment. The 1st Defendant's main objection is delay and non explanation of the reason for delay. The Defendant states that she is extremely old and feeble and would like to see an end to this litigation soon, and her frustration is prolonged by delay.
   

2. LAW AND ANALYSIS
   

2. This is the Plaintiff's application to amend his Statement of Defence pursuant to Order 25 rule 5 of the High Court Rules 1988. The law relating to grant of leave to amend pleadings is set out under Order 20 rule 5 off the Supreme Court Practice 1999.
   

Order 20 Rule 5 of the High Court Rules which provides:

"5-(1) Subject to Order 15, Rule 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct."

3. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 it is stated that:
   

"General principles for grant of leave to amend (rr5, 7 and 8)-It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defects or errors in any proceedings." (see per Jenkins L. J. in R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216; [1958] 3 All E.R. 540, p.546)." (Emphasis added)

It is well established principle that the object of the amendment after the closing of the pleading Court is to decide 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 rights...I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of rights on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right" (per Bowen L.J. in Cropper v. Smith [1884] UKLawRpCh 91; (1883) 26 Ch. D. 700, pp. 710 – 711, with which observations A.L. Smith L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam (1896) 1 Ch. 108. P. 112)."

4. The paramount consideration in the exercise of the discretion of the court in determining an application for amendment is whether the amendment will lead to a decision of the real matter in controversy and if so to allow the pleading to be corrected with necessary amendment.
   
5. Under Order 20/ 8/6 of the Supreme Court Practice of 1999 under the heading 'General principles for grant of leave to amend' at page 379 further stated as follows
   

"In Tildesley v. Harper [1878] UKLawRpCh 284; (1876) 10 Ch. D. 393, pp 396, 397, Bramwell L.J. said:

"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 this 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 it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs" (per Brett M.R. Clarapede v. Commercial Union Association (1883) 32 WR 262, p263; Weldon v. Neal (1887)19 QBD 394 p.396. Australian Steam Navigation Co. v. Smith [1889] UKLawRpAC 12; (1889) 14 App. Cas. 318 p 320; Hunt v. Rice & Sons (1937) 53 TLR 931, C.A and see the remarks of Lindley L.J. Indigo Co. v. Ogilvy (1891) 2 Ch. 39; and of Pollock B. Steward v. North Metropolitan Tramways Co. (1886) 16 QBD.178, p.180, and per Esher M.R. p.558, C.A.). An amendment ought to be allowed if thereby "the real substantial question can be raised between the parties," and multiplicity of legal proceedings avoided (Kurtz v. Spence (1888) 36 Ch, D. 774; The Alert (1895) 72 L.T. 124).

On the other hand it should be remembered that there is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time (see, per Lord Griffiths in Kettma v Hansel Properties Ltd [11987] A.C 189 at 220).

Leave to amend will be given to enable the defendant to raise a defence arising from a change in the law since the commencement of the proceedings affecting the right s of the parties or the relief or remedy claimed by the plaintiff, even though this might lead to additional delay and expense and much longer trial, e.g. that the plaintiffs have acted in contravention of Art. 85 (alleging undue restriction of competition) and Article 86 (alleging abuse of dominant market position) of the treaty establishing the European Economic Community (the "Treaty of Rome") which became part of the law of the United Kingdom by the European Community Act 1972, so as to become disentitled to their claim for an injunction (Application des Gaz SA v Falks Veritas Ltd [1974] Ch. 381; [1974]3 All E.R. 51 CA)...

Where a proposed amendment is found upon material obtained on discovery from the defendant and the plaintiff also intends to use if for some purpose ulterior to the pursuit of the action (e.g. to provide such information to third parties so that they could bring an action), the plaintiff should not be allowed to amend a statement of claim endorse on the writ and so it the public domain but instead the amendment should be made as a statement of claim separate from the writ and thus not available for public inspection (Mialano Assicuranziona SpA v Walbrook Insurance Co Ltd [1994] 1 W.L.R 977 see too Omar v Omar [1995] 1 W.L.R. 1428, use of documents disclosed in relation to Mareva relief permitted to amend claim and at trial.

The Court is entitled to have regard to the merits of the case in an application to amend if the merits are readily apparent and are so apparent without prolonged investigation into the merits of the case (King's Quality Ltd v A.J. Paints Ltd [1997]3 All E.R. 267)."

6. In the affidavit in opposition the 1st Defendant is stating the amendment sought in the prayer 3 of the proposed amendment has already been dealt by the court and also an order had been made till the conclusion of the action. The Plaintiff did not reply to this affidavit in opposition and at the oral hearing could not address any need of such an amendment, when pointed out. So, on the available evidence it seems that the proposed amendment in prayer 3 of the proposed amendment is superfluous in terms of the order of the judge made on 9th April, 2010. So, I refuse the leave for the said amendment as it is not needed for the determination of the matter and no longer an issue.
   
7. In the Supreme Court Rules (1999) under Order 20/5-8/21 sub-headed "Dishonest application" it is stated that:
   

"In Lawrence v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213, The Divisional Court was not satisfied as to the truth and substantially of the proposed amendment: see judgment of Stirling J., p.221; and Bowen L.J., p.235. It therefore refused leave to amend, and dismissed the action. The Plaintiff the brought an action in Ch. D., in which the proposed amendments were set out more fully in the statement of claim, and this action was subsequently dismissed ad being an abuse of the process of the Court (15 App. Cas.210)."

8. In Reddy Construction Company Limited v Pacific Gas Company Limited (26 FLR 121, FCA at 125-126) the Court of Appeal stated that:
   

"The primary rule is that leave may be granted at any time to amend on terms I 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 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".

9. The White Book further goes on to state under Order 20/8/10 at p 382 state under the heading "Before the trial or hearing" state as follows
   

"Before the trial or hearing (rr5,7 and 8)- Leave is readily granted, on payment of the costs occasioned, unless the opponent will be placed in a worse position than he would have been if the amended pleading had been served in the first instance (Steward v North metropolitan Tramways Co (1885) 16 Q.B. D 178) or some injury caused to him for which he cannot be compensated by payment of costs (See "Costs no remedy", para 20/8/20)..........

Under the same heading "Before the trial or hearing" it further state at p 382

"There will be difficulty however, where there is ground for believing that the application is not made in good faith. Thus, it either party seeks to amend his pleading, by introducing for the first time allegations of fraud, or misrepresentation or other such serious allegation, the Court will ask why this new case was not presented originally; and may require to be satisfied as to the truth and substantially of the proposed amendment (Lawrance v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213; see judgment of Stirling J. p.221, and of Bowen L.J. p. 235). (Emphasis added)

So in a libel action, if the defendant seeks at a late stage to amend his defence by adding a plea of justification, his application will be closely inquired into and it will be allowed where he has shown due diligence in making his inquiries and investigations, but it may well be refused if he has been guilty of delay or has not made proper inquiries earlier (Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 Q.B 450 [1970]2 All E.R. 754, CA)"

10. The Plaintiff has filed this action alleging forgery of her share of the property to the 1st Defendant. In the statement of claim at paragraph 7 stated as follows
    

'That due to the First Defendant's fraudulent act the Plaintiff has been deprived of his interest, usage, benefits and entitlements to the said lease'

In the proposed amendment the Plaintiff is also seeking general damages and the Defendant is alleging that there was no pleading as set out in the statement of claim for such claim for general damages. The paragraph 7 which I quoted above is sufficient to claim for general damages and the said objection to the amendment is overruled and the amendment sought by the Plaintiff to include a prayer to that effect is granted.

11. There is no affidavit evidence before me as to belatedness of the application for amendment. The action was instituted in 2010 and after obtaining a restraining order from a judge, the Plaintiff has waited two years before seeking this amend the statement of claim. The action has not proceeded beyond the stage of summons for directions, though the Plaintiff has erroneously filed a summons for directions when the summons seeking amendment was pending before the court. The delay in bringing this application is not explained as two years is a long delay and considering the restraining order against the 1st Defendant and the property in issue the delay is further aggravated by this amendment.under Order 20/5-8/20 of the White Book sub-headed "Delay" it is stated that:
    

"A slight delay is not sufficient ground for refusing leave. But if an application which could easily have been made at a much earlier stage of the proceedings be delayed till after evidence given and a point of law argued, leave may be refused (James v. Smith [1890] UKLawRpCh 141; [1891] 1 Ch. 384...."

12. I do not intend to refuse this application for amendment for the delay, but the Defendant should be adequately compensated due to the delay and or negligence on the part of the Plaintiff. The 1st Defendant also states that she is old and feeble and would like to end this matter before she departs from this world. This may be a real, fear and her evidence is vital for the action, delay would immensely prejudice the Defendant. Considering all the factors before me I allow all the proposed amendments in the proposes amended statement of claim annexed to the summons and marked in red, except the amendment sought in prayer 3, where already an order had been made by a judge as far back in 2010. Considering the long delay and non explanation of the delay by the Plaintiff I allow the said amendment, subject to a cost of $1,500.
    

100. FINAL ORDERS
     

1. The Plaintiff's proposed amendments are allowed except the prayer 3 in the proposed amendment subject to a cost of $1,500
2. The Plaintiff is ordered to file and serve the amended statement of claim within 14 days.

100. The Plaintiff is ordered to pay the cost of $1,500 with in 14 days.

4. If the cost is not paid the amended statement of claim is deemed struck off.
5. The cost of this application is cost in the cause.
6. Matter to take normal cause.
   

Dated at Suva this 11th day of September, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva