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Fiji Electricity Authority v Suva City Council [1994] FJHC 2; Hbc0901d.84s (5 August 1994)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC0901D.84S

BETWEEN:

FIJI ELECTRICITY AUTHORITY
Plaintiff

AND:

SUVA CITY COUNCIL
Defendant

Mr. S. P. Sharma for for Plaintiff
Mr. V. Kapadia for Defendant

DECISION

This is the defendant's application by way of Summons for the amendment of Agreed Facts and Issues dated 28 October 1993 by adding the following:

That the Defendant had requested the Plaintiff to re-site electrical power poles set out in paragraphs 4 to 7 of the Statement of Claim as they were placed in such a way that they obstructed pedestrian and/or vehicular traffic.

The sequence of events before the above application is as hereunder.

This case was set down for hearing before me on 28 October 1993. Since the Court did not have before it a Statement of Agreed Facts and Issues as required under Order 34 r.2(4) both counsel were asked to consider this before I proceed to hearing.

Counsel returned with the agreed issues as follows:-

"Plaintiff and Defendant by their respective counsel agree as follows:-

1. That paragraphs 1 to 7 of Plaintiff's Statement of Claim (pages 3 and 4) are agreed facts.

2. The issue for determination by the Honourable Court is whether on the above facts the resitement of an electrical power pole constitutes a nuisance on the Street and thereby makes the Plaintiff liable for the cost associated with resitement by virtue of s.37(2) of Electricity Act Cap. 180."

Thereafter counsel wished to file written submissions and hence an order was made for that to be done. The Plaintiff filed its submission in time but the Defendant needed further time and it was granted. But then subsequently the defendant decided to make certain amendment to the issues by making the present application and this, it is pertinent to note, it does after counsel studied the Plaintiff's submission.

Mr. Kapadia argued that this is a legitimate and valid application and the Court has an inherent jurisdiction to allow the amendment. He says that as the agreement stands it "will not resolve the whole action". In the Affidavit which he himself swore in support of the summons he states in paragraph 4, inter alia, that "the purpose of counsel agreeing to the course proposed on the 28th October, 1993 was to resolve a long outstanding dispute between the parties regarding relocation of electrical power poles when streets are widen in the Suva City area." Further in paragraph 5 he says that "the dispute as to who pays for the costs of relocation of electrical power poles when streets are widen continue to date and has not been resolved between the parties."

He argues that by adding the amendment "the key issue between the parties" will be resolved in the one proceeding.

Mr. Sharma objects strongly to this application being granted as this is being done at the close of the trial and after order has been made for written submission which the Plaintiff had filed. He says that "going back to pleadings" and starting "afresh" is not a course open to the defendant.

In a nutshell the position in this case is that "hearing" is complete and written submissions were ordered to be filed. The Plaintiff has filed its submission but the defendant has not, and is instead applying for the amendment referred to hereabove.

The issue now before me is whether the defendant should be allowed the amendment sought by it at this late stage.

It is clear from Mr. Kapadia's affidavit that it was only after reading the Plaintiff's submissions that he decided to make this application.

Both counsel conferred and returned to Court with the agreed issues as hereabove. Why the matters which Mr. Kapadia raises in his affidavit, particularly in paragraphs 4 and 5, did not come to his mind earlier than it did is for him to explain.

At this juncture I would like to echo the sentiments of DYKE J when he said:

"it is most unfortunate that the case should have been set down for hearing and two days set aside for it when it was clearly not ready for hearing. There is much to be said for a system of pre-trial conferences when preliminary points like these can be sorted out and the issues on which the court will be asked to pronounce worked out. In Canada for instance (although this would not be possible for Fiji) there are pre-trial conferences with the assistance of a judge - not the judge who is ultimately going to hear the case of course." (Action No. 82/77 SANT RAM SINGH and PUNJA & SONS LIMITED)

In the case before me counsel were sorting out issues on the day of the trial which as it turned out was most unsatisfactory. Had pre-trial conference been held in the normal way as required by Order 34 of the High Court Rules this unhappy situation would not have arisen.

In this case it is to the agreed issues that amendment is sought by adding to it. This situation in my view would seem to be covered by Order 20 Rule 7 (Amendment of certain other documents) of The High Court Rules which provides as follows:

"7 - (1)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, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) This rule shall not have effect in relation to a judgment or order."

The Rule talks of "at any stage of the proceedings", and this would cover before judgment as in this case. Under this Rule one of the purposes of allowing an amendment would be for the "purpose of determining the real question in controversy between the parties". Although the said Rule empowers the Court to order an amendment to be made of its own motion it very rarely does so for "its function is to act as a kind of umpire ...... and it plays not an active but a passive role in relation to the raising of issues for its consideration and determination" (Notes to Or. 20 THE SUPREME COURT PRACTICE 1988 Vol I p.349).

With regard to the principles on which the Court exercises its discretion to grant leave to amend should be exercised is fully set out in the notes to O20 r5 (ibid), but a useful summary of principles appears in the judgment of LORD KEITH OF KINKEL in KETTEMAN v HANSEL PROPERTIES (H.L.(E)) 1987 1 AC p.189 at p.212 which is as follows:

"The effect of these authorities can, I think, be summarised in the following four propositions. First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided. Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thirdly, however blameworthy (short of bad faith) may have been a party's failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been the application should, in general, be allowed, provided that allowing it will not prejudice the other party. Fourthly, there is no injustice to the other party if he can be compensated by appropriate orders as to costs."

It has also been said in KETTEMAN (supra) p. 220 that:

"Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other...."

In the case before me, although Mr. Kapadia has made a mistake in the conduct of his case by not raising the subject-matter of the amendment sought at the time of Agreed Facts and Issues, on the authorities, the Court cannot punish him for it but to "decide the rights of the parties in accordance with their rights" (The Supreme Court Practice ibid). This circumstance ought not to be regarded as of itself precluding the giving of leave to amend, in the absence of any prejudice to the Plaintiff which could not be compensated for by appropriate Order as to costs. Here I do not see any such prejudice.

In all the circumstances of this case, bearing in mind the said general principles for grant of leave to amend particularly the guiding principle of cardinal importance, namely, that 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 defect or error in any proceedings" (The Supreme Court Practice, ibid), I allow the prayer in the Summons and make an order accordingly with costs against the defendant which are to be taxed unless agreed.

As a result of the Order that I have made further consequential orders will have to be made in regard to the future conduct of the action and for this purpose I would like to hear counsel in Chambers on a date to be assigned.

D. PATHIK
Judge

Suva
5 August 1994