Kipps Dada (trading as Noris Building & Maintenance Contractor) v Kahaiyo [2022] PGNC 547; N10083 (15 November 2022)

N10083

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 401 OF 2021

BETWEEN:
KIPPS DADA trading as NORIS BUILDING & MAINTENANCE CONTRACTOR
Plaintiff

AND:
MR BERRY KAHAIYO
First Defendant

AND:
ANONANTU PEOPLES ASSOCIATION
Second Defendant

Goroka: Mugugia, AJ
2022: 10^th & 15^th November

PRACTICE AND PROCEDURE – Plaintiff’s application seeking order to amend his Writ of Summons and Statement of Claim – National Court Rules, Order 8, Rule 50(1) – Whether the Plaintiff’s application to amend his Writ of Summons and Statement of Claim should be granted - Power of the Court to grant leave is discretionary – Consideration of the guiding principles on the question of leave to amend a pleading.

Cases Cited:

Papua Club Inc. v. Nusaum Holdings Ltd. (2002) N2273
Kewa v. Kombo (2004) N2688

Counsel:

Ms K. Lafanama, for the Plaintiff
No appearance, for the Defendants

RULING

15^th November, 2022

1. MUGUGIA, AJ: Before me is the Plaintiff’s notice of motion filed on 26 October 2022, seeking an order pursuant to Order 8, Rule 50(1) of the National Court Rules to amend his Writ of Summons and Statement of Claim filed on 23^rd June 2021.
   

2. The supporting affidavits were the Affidavit in Support of Kipps Dada and the Further Affidavit in Support of Karen Lafanama both filed on 26^th October 2022.

PLAINTIFF’S SUBMISSIONS

2. In a nutshell, Ms. Lafanama’s submissions were that the Plaintiff did not properly plead his claim in the original Writ of Summons filed on 23^rd June 2021. The original writ does not properly plead the agreement between the parties. The amendment goes to the particulars of the agreement. The proposed amendment goes to the pleadings and relief sought, especially the calculations. This calls for a proper amendment to the pleadings.
   

4. Ms. Lafanama also submitted that the Defendants are aware of the claim. However, they have not filed a defence to the original writ of summons. It is not necessary for the Plaintiff to bear any costs for this amendment because the Defendants did not file a defence. The amendment is necessary. If an amendment is made, the Defendants will have an opportunity to file a defence. There will be no prejudice to the Defendants. If the amendment is not allowed, the Plaintiff will be disadvantaged. The Plaintiff took the necessary steps. The application is made bona fide. The interests of justice lie with the Plaintiff.

ISSUE

5. The issue is whether, the Plaintiff’s application for leave to amend his Writ of Summons and Statement of Claim filed on 23^rd June 2021 should be granted.

LAW ON AMENDMENT OF PLEADINGS

6. The National Court has power under Order 8, Rule 50 of the National Court Rules to grant leave to amend any document at any stage of the proceedings. Sub-rule (1) of Order 8, Rule 50 provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit.

7. The power to grant leave is an exercise of judicial discretion and must be exercised based on proper principles of law.

8. In Papua Club Inc. v. Nusaum Holdings Ltd. (2002) N2273, Gavara-Nanu J stated these guiding principles that the Court should consider when faced with an application for leave to amend a pleading:

“(1) Where the amendment is to enable the Court to determine the real question in controversy between the parties, or

(2) Where the amendment is to correct any defect or error in the proceedings, and

(3) That such amendment will not cause real prejudice or injustice to other party, and

(4) That the application for such amendment is not made mala fide, and

(5) That the other party can be fairly compensated with costs for such amendment.”

9. Cannings J, added three more considerations in the case of Kewa v. Kombo (2004) N2688. They are:

“(6) Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?

(7) Where do the interests of justice lie?

(8) Is the proposed amendment efficacious? That is, is it a proper amendment?”

APPLICATION OF THE LAW

10. I apply the considerations to the case before me in this manner:

(1) Will the amendment enable the Court to determine the real question in controversy between the parties? Yes. The amendment will enable the Court to determine the real issue in dispute between the parties, and do justice in the case.

(2) Will the amendment correct any defect or error in the proceedings? Yes. The Plaintiff had filed his Writ of Summons in person. The proposed amended writ of summons corrects defects in the original writ.

(3) Will the amendment cause real prejudice or injustice to the Defendants? No, the amendment will not result in injustice and prejudice to the Defendants.

(4) Is the application for such amendment made mala fide or bona fide? It is made bona fide.

(5) Can the other party be fairly compensated with costs for such amendment? Yes.

(6) Is the party applying prevented by his conduct or the manner in which the proceedings have been progressed from being permitted to amend his pleadings? No. The Plaintiff had filed the original writ of summons without the benefit of legal representation. Now, with the assistance of lawyers, the Plaintiff’s should be permitted to amend his pleadings.

(7) Where do the interests of justice lie? The interests of justice lie in favour of granting the Plaintiff’s application to amend his Writ of Summons and Statement of Claim.

(8) Is the proposed amendment efficacious? That is, is it a proper amendment? Yes, it is a proper amendment.

CONCLUSION

11. In the exercise of my discretion, I will grant leave to the Plaintiff to amend his Writ of Summons and Statement of Claim filed on 23^rd June 2021. The Defendants will be compensated with costs for the amendment. I will order the Plaintiff to pay costs.

FORMAL ORDERS:

12. The formal orders of the Court are:

1. The Plaintiff is granted leave to amend his Writ of Summons and Statement of Claim filed on 23^rd June 2021.

2. Costs shall be paid by the Plaintiff.

3. Time for entry of these orders is abridged to the date and time of settlement of these

orders by the Registrar which shall take place forthwith.

Ruling and Orders accordingly.
________________________________________________________________
Ms K. Lafanama: Lawyer for the Plaintiff