Total Fiji Ltd v Auto World Trading (Fiji) Ltd [2012] FJHC 1477; HBC234.2007 (12 December 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 234 OF 2007

BETWEEN:

TOTAL FIJI LIMITED
Plaintiff

AND:

AUTO WORLD TRADING (FIJI) LIMITED
Defendant

Appearances: Mr H.Nagin for the plaintiff
Mr Suresh Chandra for the defendant
Hearing : 20th June, 2012

RULING

1. This is an application by the defendant to amend its statement of defence in the course of hearing.
   
2. The substantive action commenced by a statement of claim, which asserted that the plaintiff had entered into registered lease No.209221 with Fiji Investment and Agency Company Ltd,["FIACL"] in respect of the properties comprised in Certificates of Title Nos 3157 and 3357 for a period of 20 years from 1st January,1980. This was renewed for a further period of twenty years from 1st January, 2000, in terms of a clause in the Lease, which provided an option to renew for a further term of twenty years. The plaintiff seeks a declaration that it has a lease over these properties until 31st December, 2019, and that the notice to quit dated 17th May,2007, given by the defendant to vacate the properties, is invalid.
   

It is common ground that the defendant became a purchaser of the properties on 2nd May,2007. The statement of defence states that lease No.209221 was not renewed. It is alleged that the plaintiff occupies the properties on a monthly basis. A counter claim was made for the plaintiff to vacate the properties and pay the defendant a mesne profit of $ 4125 per month, until then.

On 4th August, 2011, I granted the defendant leave to amend its counter-claim to include "losses of rental income(the mesne profit) and other losses", arising upon the plaintiff not vacating the premises, consequent to the termination of the tenancy.

The case proceeded to hearing. The plaintiff called three witnesses and closed its case. The hearing was adjourned for 29th and 30th March, 2012.

3. The proposed amendments to the statement of defence and counter claim

On 22nd March, 2012, the defendant made this second journey to amend its statement of defence as follows:

1. That in the alternative Defendant pleads that if this Honourable Court holds that the lease no. 209221 has been validly extended which is denied the Plaintiff has breached its express provision by sub-letting the properties in question.
   
2. The Defendant further pleads that if the lease no. 209221 is validly registered at the first instance which is denied by the Defendant, it is void ab-initio and is ineffective due to lack of grant of prior ministerial consent under consent under Section 6(1) of the Land Sales Act.
   

The affidavit in support filed on behalf of the defendant provides that the following two matters necessitates the amendment of its statement of defence, namely;

1. The plaintiff is not in possession of the property,
   

It is alleged that the plaintiff has breached the lease agreement, by sub-letting the properties .The evidence of the plaintiff 's first witness Mr Rajesh Patel, revealed that the plaintiff has leased the property to Tradewinds Marine Ltd, which is operating a business therein, using the logo of the plaintiff. Further investigation and discoveries of documents revealed that Tradewinds Marine Ltd is operating the business with Hibiscus Autoport on the properties. In support, several documents have been exhibited including a receipt for purchase dated 25th October, 2006, in the name of the Tradewinds Marine Ltd; photographs of the business licence displayed on the premises of Tradewinds Marine Ltd and other private vehicles parked on the properties, which it is stated, depict that Tradewinds Marine or the plaintiff has sub-let the properties to individuals and or other companies for commercial parking use; receipt dated 8th March, 2012, issued in the name of Hibiscus Autoport for the purchase of petrol and drink .

2. The defendant has discovered that the lease no. 209221 was executed by the plaintiff, a majority foreign owned company without obtaining the "prior consent in writing of the Minister responsible for lands ..",as stipulated in section 6(1) of the Land Sales Act . The Minister of Lands had granted consent to the plaintiff subsequently.
   

The affidavit states that the proposed amendments are necessary, so that all issues pertaining to this case between the parties are determined in the trial .

The plaintiff's objections to the proposed amendments

The plaintiff, in its affidavit in reply, states that the plaintiff has a Retail Dealer Agreement with Tradewinds Marine Ltd . Hibiscus Autoport is a part of the trading name of the plaintiff. It is denied that the premises are sublet.

As regards the second amendment, it is asserted that ministerial consent was granted to the plaintiff to lease the land and to the transfer of the lease from Shell Company Pacific Island Ltd to Shell (Fiji) Ltd.

The affidavit concludes that it is greatly prejudicial to the plaintiff, if the proposed amendments are allowed, since the plaintiff has closed its case and matters "going back to the 1980's are being raised and documents relating these matters maybe difficult to locate".

4. The determination
   

Or 20 r 5 of the High Court Rules provides:

(1) Subject to Order 15, rules 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.

(2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) ....

(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." (emphasis added)

I find a great deal of guidance, from the excerpts of passages from the "White Book", cited by Mr Nagin, counsel for the plaintiff, in his written submissions.

The Supreme Court Practice 1988, Volume 1,( the "White Book"), under the title "General principles for grant of leave to amend" at page 350 provides as follows:

"It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such arrangements ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings". (see per Jenkins L.J. in G.L. Baker, Ltd v Medway Building & Supplies, Ltd (1958) 1 W.L.R. p. 1231).

It is a well-established principle that the object of the 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 amendments 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 right 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), 26 Ch. D. at p. 710-711, with which observations A. L. Smith, L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam, [1896] 1 Ch. at p.112).

In Ambaram Narsey Properties Ltd v Mohamed Yakub Khan, (2001) FLR 283, Gates J (as he then was) cited the above dictum of Bowen, L.J. in Cropper v. Smith.

The defendant, in its original statement of claim has counter-claimed for the eviction of the plaintiff from the properties. Among the several Issues recorded at the pre-trial conference are the following:

Whether the Notice to Vacate dated 17th May, 2007 is null and void?

Whether the Defendant is entitled to vacant possession?

The alleged sub-letting "arises out of the same facts" to quote Or 20.r5 (5). In my judgment, the first proposed amendment does not introduce a new cause of action. It ensures contemporaneity between the counter-claim and circumstances said to exist now. It can be conveniently dealt with in this action and would determine "the real question in controversy" between the parties conclusively. If refused, there is potential for institution of a fresh action. Moreover, this matter transpired in the evidence led on behalf of the plaintiff .

Mr Nagin has referred to the case of Reddy Construction Co. Ltd v. Pacific Gas Co. Ltd, FCA No. 47/1979 where the Fiji Court of Appeal stated:

"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 real issue may be tried, no matter that initial step 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 change." (emphasis added)

In my view, the amendment would not cause injustice or prejudice to the plaintiff. The amendment is within the limitation period. In any event, as stated in the White Book under sub-title "Power to amend after expiry of limitations period":

"The provisions of Rule 5 empower the Court to grant leave to amend the writ or pleading in the particular circumstances mentioned in paras. (3), (4) or (5), even though the application for such amendment is made after the expiry of any relevant period of limitation current at the date of the issue of the writ. These powers in no way affect or prejudice the substantive rights of the parties under any relevant Statute of Limitations; nor do they affect or alter the practice of the Court in cases outside the scope of the circumstances mentioned in paras, (3), (4) and (5). On the other hand, in the specified classes of cases mentioned in these paras, Rule 5 regulates afresh the practice which the Court may follow in exercising its unfettered discretion under Rule 8 to amend any document in the proceedings; in these cases Rule 5 regularises the practice of the Court for curing the specified defects in an action begun after the relevant time limit has expired."

Davies L.J in Dornan v J.W. Ellis & Co. Ltd, (1962) 1 Q.B. 583 C.A. at 593:

"The story that is now set up by the plaintiff is the same story as that set up all along, ..... And, as I think, what is now sought to be done is not to make out a new case of negligence, but to persist in the old story and invite the judge at the trial to approach it, to interpret it, from a different angle or aspect. It is a different approach to the same main story of the accident."

In the exercise of my discretion, I permit the first amendment sought.
The second proposed amendment provides that lease no. 209221 was executed by the plaintiff without obtaining prior ministerial consent. Mr Nagin argued that effectively, injustice will be suffered by reason of the lengthy delay between 1984 and the present and the ensuing problems associated with the unavailability of witnesses and documents.

As I read the proposed amendment, I see a completely new defence, namely to vitiate the tenancy agreement . As Lord Wright stated in Marshall v London Passenger Transport Board, (1936) 3 All.E.R. 83 at 87 " the new pleading involves a new departure, a new head of claim, or a new cause of action" .Byrne J (as he then was) in Solomone Naqa v AG of Fiji,(HBC 576 OF 1998 S) citing Lord Wright, MR stated the question is whether "is it something essentially different from that which was pleaded earlier?".

The Supreme Court Practice 1988, Volume 1, under the title "General principles for grant of leave to amend" at page 350 provides as follows:

"Before the trial or hearing-There will be difficulty however, where there is ground for believing that the application is not made in good faith. Thus, if either party seeks to amend his pleading, by introducing for the first time allegations of fraud, or misinterpretation 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 (Lawrence v. Norreys [1888] UKLawRpCh 116; (1890) 39 Ch. D. 213; see judgement of Stirling J. p. 221, and of Bowen L. J. p.235). (emphasis added)".

I decline to grant the proposed second amendment.

5. Orders
   
   1. The defendant is given leave to file an amended statement of defence as regards the first matter proposed in the summons. The amendment is to be filed within 14 days.
      
   2. The plaintiff is to file amended Affidavit in reply within 7 days thereafter.
      
   3. The proposed second amendment is declined.
      
   4. The plaintiff is also given leave to recall its witnesses, the costs of which are to be borne by the defendant.
      
   5. The case be mentioned in court for review on 1 February,2013.
      
   6. The defendant shall pay the plaintiff the costs occasioned by the amendment, which I summarily assess in a sum of $ 2000 in 14 days.
      

A.L.B.Brito-Mutunayagam
Judge

12 December, 2012