IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 1405 OF 1996
LESOTHO HAPS
DEVELOPMENT………………..PLAINTIFF
CO. (PVT)
LIMITED
PRESS &
SHIRE CLOTHING LIMITED…………..1ST DEFENDANT
PRESS
CORPORATION LIMITED…………………2ND DEFENDANT
CORAM: D.F. MWAUNGULU( JUDGE)
Njobvu, Legal Practitioner, for the Defendant
Machila, Official Interpreter
Mwaungulu, J.
ORDER
This is an appeal by
Press and Shire Clothing Limited, the first defendant, and Press Corporation
Limited, the second defendant, against the Assistant Registrar’s Order of 23rd
of January 2002 rejecting the defendant’s application to dismiss the
plaintiff’s action for want of prosecution.
The defendant’s application based on the plaintiff’s failure to amend
pleadings after Justice Mzikamanda on 17th March 2000 ordered
amending the plaintiff’s name.
The Assistant Registrar thought, of course, after a
problem which appears later, correctly in my judgment that the plaintiff should
not have done what the defendants requested the plaintiff to do. On that basis the Assistant Registrar,
correctly in my judgment, for reasons which will appear shortly dismissed the
defendant’s application on the hearing of this appeal the plaintiff did not
appear. The defendants served the
notice of appeal on the plaintiff.
Apparently, Mbendera, Chibambo and Associates, who were legal
practitioners for plaintiff all along and during the hearing of the matter in
contention before the Registrar, were discharged as legal practitioners by this
court. The plaintiff has not applied
for change of a legal practitioner. The
plaintiff could not, on the authority of order 5, rule 6(2) of the Rules of the
Supreme Court and Arbuttinot Leasing International Ltd v Havelet Leasing Ltd
[1991] 1 All ER 591, appear in this Court in person but by a Legal
practitioner. The matter can now only
proceed therefore on the basis that the plaintiff has not appeared on a date
set for hearing. The matter will
therefore proceed on that score and, under the rules of this court, I can hear
the defendants on their appeal.
The question is
whether this Court should dismiss the plaintiff’s action for want of
prosecution. That, of course, on what
proceeded before the Registrar, depends on whether the plaintiff should have,
after introducing a new party, amended the pleadings too. Of course, if the plaintiff should, as the
defendant contends, have amended the pleadings, the defendant, on the
plaintiff’s failure, was entitled, to enforce the courts order and facilitating
the case’s movement, to apply for dismissal of the plaintiff’s action for want
of prosecution. Conversely, this Court
should dismiss the appeal if, contrary to what the defendant says, the
plaintiffs should not have amended the pleadings.
The facts and events
to the present appeal are not complex and, if they help to determine this
appeal are as follow. On 17th March 2000, the plaintiff successfully
obtained an order before Justice Mzikamanda to amend the plaintiff’s name from
‘HAPS Development Company (Pvt.) Limited’ to ‘Lesotho HAPS Development Company
Property limited.’ Nothing happened
until 16th January 2001 when Messrs Savjani and Company, the
defendant’s legal practitioners, wrote Messrs Mbendera, Chibambo and Associates
to serve the amended writ and pleadings.
On 18th January 2001, Messrs Mbendera, Chibambo and
Associates wrote Messrs Savjani and Company admitting the amended writ and
statement of claim should have been served sometime back. Messrs Mbendera, Chibambo and Associate only
enclosed the amended writ. On 29th
January 2001 Messrs Savjani and Company acknowledged receipt. They requested the plaintiff to serve the
amended pleadings by 9 of February 2001.
The plaintiff did nothing.
On 4th July
2001, the defendants applied, under Order 19, rule 1 and Order 20, rule 9 of
the Rules of the Supreme Court, to dismiss the action for want of prosecution.
The court set the application for 24th July 2001. The Assistant Registrar eventually heard the
application on 23rd January 2002. The Assistant Registrar’s order,
delivered the same day, was brief. The
first part is cancelled. The cancelled
part suggests the Assistant Registrar ordered the plaintiff to amend the
pleadings within seven days failing which the action would be dismissed for
want of prosecution. The Registrar, as
the defendant correctly, mentions, cancelled the earlier order. The Registrar
replaced the order with a brief order “no need for amendment of pleadings and
serving on the defendants.” The order does not necessarily say the
plaintiffs’ action is dismissed for want of prosecution.
The three ground of
appeal the defendants raise can be categorized into two groups. The first category, relating to ground (a),
questions the Assistant Registrar’s order’s legality. The second, in grounds (b) and (c), unimportant for reasons
appearing later, relates to the Assistant Registrar’s conduct when giving the
order. The defendant alleges that the
Deputy Registrar, after concluding one way, namely, that the plaintiff’s action
should be dismissed unless the plaintiff within seven days amended and served
the pleadings as the defendants requested, following the plaintiff’s legal
practitioner’s protest the order’s propriety, substituted the earlier.
On the Order before me nothing confirms the
defendant’s allegation that the Registrar cancelled the order because the
plaintiff’s legal practitioner intervened. Examining the record of proceedings
of that day, the Registrar went at great length to record intelligently and
concisely the interesting arguments and submissions the legal practitioners
made.
This is not to suggest
that what the defendant now alleges never occurred. It is only that, because it is not recorded, this Court should be
slow, without affidavit evidence on what the defendant says, to conclude that
is what actually happened. It is
possible the Registrar altered the record without indication to counsel or, if
with indication to counsel, without circumstances the defendants allege. It would have made quite some difference, in
my judgment, if these matters were on affidavit. A counter affidavit would not be possible now that Messrs
Mbendera, Chibambo and Associates discharged themselves. I do not think I should decide on this
aspect.
On the most important
ground of appeal, namely, that the Registrar erred in holding it unnecessary
for the plaintiff to amend its name in the pleadings the plaintiff having
amended the writ, in the absence of the Assistant Registrar’s reasons, I should
proceed based on arguments Registrar recorded.
Unfortunately, the Assistant Registrar passed away, may his soul rest in
peace. It was necessary at this stage
to require reasons. As said, it is
possible to resolve this matter by reference to arguments legal practitioners
raised before the Registrar recorded in the proceedings.
The defendant before the Registrar
raised several points they thought important to resolving the application. One such point was that it is a requirement
that parties to the action on a writ correspond with on the statement of claim
or subsequent proceedings. The
defendant relied, of course, on a passage in the Supreme Court Practice,
1995 ed. paragraph 20/1/4:
“The statement of claim and the writ
should correspond in the names of the parties, in the number of parties, and in
the capacities in which they sue or are
sued; a mere misnomer may be corrected in the statement of claim but the writ
should be amended before judgment.”
This passage, in my judgment, scarcely assists
the defendant’s cause. The passage
clearly requires an amendment of the writ, mind you, not immediately, but
before judgment. About the statement of
claim, a pleading, this statement requires a correction of the statement of
claim not an amendment as the defendant suggest. The defendant’s counsel only read that aspect of the
paragraph. From the last paragraph in
that paragraph, it is not compulsory for the plaintiff to amend the pleading as
well:
“If either parties desires to add a new
plaintiff or a new defendant, he must apply under Order 15 rules 6 and 7…. And if an Order be made adding any new party
the writ should be amended accordingly.
If such new party be a defendant the amended writ must be served on
him…. If any pleadings have been already served they will probably also need
amendment to show title in the new plaintiff or reliability in the new
defendant.”
The learned authors
cite Ashley v Taylor (1878) 10 Ch D
768, p 772 and Seear v Lawson (1881)
16 Ch D 121.
The other point the defendant takes
bases on Order 20, rule 9:
“Where the court makes an order under
this order giving any party leave to amend a writ, pleading or other document,
then, if that party does not amend the document in accordance with the order
before the expiration of the period specified for that purpose in the order or,
if no period is so specified, of a period of 14 days after the order was made,
the order shall cease to have effect, without prejudice, however, to the power
of the court to extend the period.”
The defendant
contended before the Registrar that under this rule the plaintiff should have
served the amended pleading within 14 days after the Judge’s order. The defendant derided the plaintiff for not
serving the amended statement of claim two years on. The defendant contended the plaintiff actually admitted inaction.
The defendant’s legal practitioner, therefore, relying on Re Jokan T Holdings Ltd [1993] 1 All ER 630, thought the plaintiffs
willfully neglected to obey the order and were guilty of delay and contumely
necessitating dismissing the action for want of prosecution.
I read this order very closely. Nothing in this order suggests the plaintiff
should serve the amended statement of claim on the defendants. In my judgment, the rule only requires the
amending party to comply within the time specified or, where not specified,
within a period of 14 days after the order.
The rule does not require service of the amended process or pleading.
Since the rule requires the applying party to amend, it must be read with Order
20, rule 8 of the Rules of the Supreme Court covering the manner of amendment
and, as we see shortly, the rule implies no service of amended pleadings.
Even if Order 20, rule 9 required
service, from the rule, failure to comply does not result in dismissing the
action for want of prosecution as the defendant suggest. The rule makes the
proposed amendment ineffective with the result that the action proceeds as if
there was no amendment. Consequently,
the action proceeds as with the parties in the original action. The court cannot dismiss the action for want
of prosecution for failure of an amending party to effect an order of an
amendment. This of course seems to
create problems where, as here, the party has either changed capacity or is a
wrong party. This however is no reason
for striking the proceedings for want of prosecution. It still remains to the defendant to strike off the plaintiff under
Order 15 of the Rules of the Supreme Court.
Before the Registrar the plaintiff
argued she need not amend or serve the statement of claim because she amended
the writ. The plaintiff was right in
the submission on the effect amendment to any document. Where amended, the writ
replaces one originally issued. The effectiveness of the amended writ dates, as
it should, from when the action was commenced. Lord Justice Collins, M. R., in Sneade v Wotherton, etc [1904] 1 KB 295 at 297, said:
“It appears to me that the writ as amended becomes for
this purpose the original commencement of the action, notwithstanding the fact
that the writ originally claimed a larger sum.
The reason why the judges have always held that the question on what
terms such an amendment should be allowed requires very careful consideration,
is that, except in so far as such terms may provide to the contrary, the leave
to amend involves that the claim as amended may be treated as if it were the
original claim in the action. In this
case the amendment was allowed on such terms as the learned judge thought would
meet all the equities of the case. Upon
that amendment being allowed, the writ as amended becomes the origin of the
action, and the claim thereon indorsed is substituted for the claim originally
indorsed.”
Amendment has same consequences on pleadings.
Lord Justice Hodson’s
in Warner v Sampson [1959] 1 QB 297
at 321, said:
“Moreover, the defence was amended before the reply
claiming forfeiture, on which the plaintiff now relies, came into
existence. I do not think that this
amendment can be ignored. Once
pleadings are amended, what stood before amendment is no longer material before
the court and no longer defines the issues to be tried. Here the defendant has obtained leave to
amend, and there has been no appeal against that order; and, whatever may have
taken place at the hearing of the application to amend, the court must, I
conceive, regard the pleadings as they stand, the purpose of amendment being to
determine the real question in controversy between the parties:…
It appears to
me that the writ as amended becomes for this purpose the original commencement
of the action.”
Order 20, rule 10,
however, prescribes how amendments should be made and resolves, in my judgment,
the question whether to introduce or serve fresh amended documents:
“(1)
Where the amendments authorized under any rule of this Order to be made in a
writ, pleading or other document are so numerous or of such nature or length
that to make written alterations of the documents so as to give effect to them
would make it difficult or inconvenient to read, a fresh document amended as so
authorized must be prepared and, in a case of a writ or originating summons, re
issued, but, except as aforesaid and subject to any direction given under rule
5 or 8, the amendment so authorized may be effected by making in writing the
necessary alterations of the document and, in the case of the writ or
originating summons, causing it to be refilled and filling a copy thereof.
(2)
A writ, pleading or other document which has been amended under this order must
be indorsed with a statement that it has been amended, specifying the date on
which it was amended, the name of the Judge, Master or Registrar by whom the
order (if any) authorizing the amendment was made and the date thereof, or, if
no such order was made, the number of the rule of this order in pursuance of
which the amendment was made.”
From this rule, fresh
documents are necessary where amendments under any rule of the order to be made
in a writ, pleading or other document are so numerous or of such a nature or
length that to make written alterations of the documents so as to give effect
to them would make it difficult or inconvenient to read. Otherwise, fresh documents or even service
of them is unnecessary as long as the amendments are according to the
rule. In the later case, the rule
requires each party make in writing necessary alterations to the documents with
the necessary certificates. This rule
is now subject to a practice direction. (Practice
Directions: Queens Bench; 20, volume 2 part 3A 733.)
The Practice
Directions concentrate on amendments to originating processes. In one it provides that, where there has
been amendment to a writ of summons or an originating summons, an amended copy
of such of writ or summons should be filed showing amendments according to the
prescription in that rule. Paragraph 2
deals with re-issued writs of summons or originating summonses. Paragraph 3 deals with amendments to
statements of claim endorsed on the writ, specially endorsed writs. To the extent that the statement of claim is
part of the writ, paragraph 3 requires filing of a new writ and appropriate
amendment. Paragraph 4 repeats contents
of Order 20, rule 10 of the Rules of the Supreme Court as to time when to make
amendments. It is clear from the
Practice Direction, that there is no necessity for serving of the amended
process so long as the order of the court has been made. The Practice Directions do not require
introduction of fresh pleadings once amended.
In full compliance with the spirit of the original rule, all the
Practice Directions require is a party make appropriate alterations on the
particular document.
There are two reasons, in my judgment,
why the Rules require, at least at this initial stage, a party only to file amendments
to the writ without service of the process.
The first reason bases on the practice when applying to amend an
originating process or a pleading, a practice based on the remarks in Lawrance
v Lord Norreys (1890) 15 App.Cas No 210. There the court adjourned for the
amending party to specify the intended amendment in the application. Hyams v Stuart King (1908) 2 KB 696
confirms the practice and Farwell, L.J., said at 724:
“But in my opinion it is the duty of the plaintiff’s counsel, a duty which ought to be enforced by the judge, when he asks for an amendment which raises a fresh issue on a fresh course of action, to formulate and state in writing the exact amendment that he asks, injustice to the defendant, in order that he may know exactly the new case that he has to meet, to the judge in order that he may know exactly what he asked to trial, and to the court of appeal in order that they may know what has been tried and decided. This is in accordance with order XXVII., rr8 and 9 and the usual practice in the Chancery division. Order XXVIII., r. 12 does not mean that an order may be made in general terms, but gives a general power to make proper orders in all cases for determining the real questions. While, therefore, I think that the amendment should be allowed I think that the plaintiff’s counsel did not ask for or obtain it in proper form, the respondent should not in any case have the costs of the appeal. It appears from this statement that the amending party must introduce to the defendant and to the court the proposed amendment. If that amendment is not so proposed, while the court may still grant the amendment, the amending party may be contend in costs.”
Once the proposed amendments are introduced to the other party and the court, as suggests, it sounds unusual to me, at this stage to insist there should be fresh processes and these processes should be served on the other party. In my judgment, at this stage, while it may be desirable to have fresh processes it is not necessary to have them and have them served on the other party.
The reason for this is that, at least in relation to proceedings where pleadings are part of the process, the amending party can introduce the altered processes when setting down the case and proffering the bundle of pleadings. At that stage all pleadings and prepared as final documents for purposes of trial. For these reasons, I think that the plaintiff in this particular case should not have introduced fresh documents except, of course as to the amendment of the writ, and served them on the other party. Where a party amends the writ or summons or originating summons there is a duty to file fresh documents with the court. While it might be desirable to serve the other party with the amended processes, it is unnecessary because at that stage, on the basis of the practice for amending originating processes or pleadings, the other party is aware of those amendments.
The plaintiff need not have introduced
fresh pleadings let alone served them.
On that basis this action could not be dismissed for want of
prosecution. The plaintiff, having
amended the writ all subsequent documents already served or with the court,
which in this case included the statement of claim, were thereby amended and
could be actually be altered t o that effect by the parties. The proposed amendments were not that
detailed as, if alterations were made on the documents, to make the documents
difficult to read. In any case, even if
the plaintiff had not amended, the plaintiff’s action could not have been
struck out for want of prosecution.
Rather the amendments would have been ineffective. I, therefore, dismiss the appeal with costs.
MADE IN CHAMBERS this 28th day of April, 2003.
D.F. Mwaungulu