Qaqanaqele v Sakil [2013] FJHC 91; Civil Action 148.2009 (6 March 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 148 OF 2009

BETWEEN:

MOSESE QAQANAQELE
PLAINTIFF

AND:

ABDUL SAKIL
1ST DEFENDANT

AND:

ALI IMDAD
2ND DEFENDANT

AND:

SUN INSURANCE COMPANY LIMITED
THIRD PARTY DEFENDANT

Counsel : Mr. Kholi for Plaintiff
Mr. Sen for 1st and 2nd Defendant
Mr. Ram for 3rd Defendant
Hearing : 06th March, 2013
Ruling : 06th March, 2013

RULING

The 3rd party Sun Insurance Company had filed summons on 4/03/2013 seeking an order to make amendment to the Statement of Defence and the summons was taken up for hearing today i.e. 6th March 2013.

The Counsel for the 3rd party made his submissions and Counsel for the Plaintiff and the 2nd Defendant objected to the application, and made their submissions.

Mr. Ram Counsel for the 3rd Party stated he is not amending the prayer its only inclusion of para 6 of the draft amended statement the defence which states:

"(a) The 1st and 2nd Defendants breached Section 16(1) (2) and (4) of the Motor Vehicle Third Party Insurance Act in that notice of accident and the claim was not given to the Third Party forthwith by the 1st and 2nd Defendants".

This was disputed by the 2nd Defendants Counsel and accident was informed to the Sun Insurance within time and evidence will be led to that effect.

The Counsel for the 3rd Party tendering the Judgement made in case of Prasad v. Prasad [2001] FJHC IT3 HBC 318 1996 (15th February 2001) and referred to the following para (.....) on page 2/4

"Mr MB Patel counsel for the 1st Defendant while not objecting to the application says that the Court is empowered to grant amendment even at the Appeal stage. (Abhay Kumar Shankar Arul Lata and Housing Authority FLA C.V. App No. 55/91 Mr. Patel asks that he be at liberty to file an amended Defence."

I also refer to the case as quoted by Fiji Electricity Authority V.Balram others [1970] 18 FLR page 20.

Goudie J. stated:

"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 may have been first ..........." (emphasis mine)

In the present case the amendment was seeked at the last minute i.e. 2 days prior to the Trial filed on 4th March 2013. The accident occurred in 2006. The Defence filed it's statement of Defence in July 2012.

The amendment sought would have been filed much earlier, the 3rd Party had ample time, to file the amendment well before the date of Trial.

It is clear from the Judgement of Prasad & Prasad the amendment should not be allowed if injustice is caused to the other party. In the circumstance this Court cannot use its discretion to permit the amendment in favour of the 3rd party for the following reasons.

(a) undue delay

(b) There is no ground to substantiate why the amendment was delayed.(on face of the amendment it would have been discovered much before the Trial)

(c ) There will be great prejudice caused to the other parties specifically to the Plaintiff if the amendment is allowed.

(d)

Amendment to the Statement of Defence is refused and the trial to be continued with the present pleadings, and ordered to continue with the Trial today.

CHANDRASIRI KOTIGALAGE
JUDGE

06th March, 2013