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Rafiq v Rajan (trading as Islander's Boutique) [2024] FJHC 274; HBC256.2017 (1 May 2024)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 256 of 2017

BETWEEN

MOHAMMED RAFIQ trading as CLASSIC STORE
having its principal place of business at Rakiraki, Rakiraki Main Street, Ra.

PLAINTIFF

A N D

MADHUKAR RAJAN trading as ISLANDER’S BOUTIQUE
having its principal place of business at Classic Store at Rakiraki, Rakiraki
Main Street as tenant of Mohamed Rafiq owner of Classic Store.
1^st DEFENDANT

A N D

SUMAN LATA RAJAN trading as ISLANDER’S BOUTIQUE
having its principal place of business at Classic Store at Rakiraki, Rakiraki
Main Street as tenant of Mohamed Rafiq owner of Classic Store.
2^nd DEFENDANT

Before : Master U.L. Mohamed Azhar

Counsels : Mr. K. Maisamoa for the Plaintiff
Ms. R. Chand for the First Defendant
Ms. S. Ravai for the Second Defendant

Date of Ruling : 01 May 2024

RULING

01. This is the summons filed by the first defendant pursuant to Order 20 rule 5 of the High Court and the inherent jurisdiction of the High Court, seeking leave to amend the Statement of Defence and Counter Claim. The first defendant sworn the supporting affidavit. The deponent annexed the copy of the proposed amended statement of defence and counter claim.

02. The Order 20 rule 5 of the High Court Rules provides for the court’s power to grant leave to amend the pleadings. The rule provides:

"Subject to Order 15, Rule 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."

03. The above rule in its plain meaning gives a broad discretion to the court to allow amendment of pleading at any stage of proceedings, and such discretion should be exercised in accordance with the well-settled principles. Lord Keith of Kinkel delivering the opinions of the House of Lords in Ketteman and others v Hansel Properties Ltd [1988] 1 All ER 38, held at page 48 that:

“Whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well-settled principles”.

04. There is a number of authorities which set out the principles that can guide the court when exercising the discretion provided by the above rule. The following principles, of course not exhaustive, emerge from the authorities:

1. The discretion should not be exercised to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence (Ketteman and others v Hansel Properties Ltd (supra)).
   
2. There is a difference between allowing amendment to clarify the real issues in dispute and those that permit a distinct defence to be raised for the first time (Ketteman and others v Hansel Properties Ltd (supra)).
   

100. All such amendments ought to be made as may be necessary for the purpose of determining the real questions in controversy between the parties (R. L. Baker Ltd v Medway Building & Supplies Ltd [1958] 3 All E.R. 540.).
     

4. Amendment of genuine mistake and negligent or careless omission, without any fraudulent intention, should be allowed if it can be done without injustice to the other party (Cropper v. Smith (1883)26 Ch. D. 700; Clarapede v. Commercial UnionAssociation (1883) 32 WR 262). There is no injustice if the other side can be compensated by costs (Clarapede v. Commercial UnionAssociation (supra). However, the justice cannot always be measured in terms of money and cost (Ketteman and others v Hansel Properties Ltd (supra)).
   
5. Amendment to include the new defences created by a new statute could be allowed (Application des Gaz SA v Falks Veritas Ltd [1974] 3 All ER 51).
   
6. Amendment to include the materials obtained on discovery will be permitted. However, if it is for the purpose ulterior to the pursuit of the action, it should not be allowed (Omar v Omar [1995] 1 W.L.R. 1428; Mialano Assicuraniona Spa v Walbrook Insurance Co Ltd [1994] 1 W.L.R 977).
   
7. The ultimate purpose is to do justice between the parties (Ketteman and others v Hansel Properties Ltd(supra); Reddy Construction Company Ltd v Pacific Gas Company Ltd; Sundar v Prasad [1980] 26 FLR 121 (27 June 1980)).
   

05. The Fiji Court of Appeal in Reddy Construction Company Ltd v Pacific Gas Company Ltd (supra), succinctly summarized the test applicable and held that:

“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 the real issue may be tried, no matter that the initial steps 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 changed”.

06. Again in Sundar v Prasad [1998] FJCA 19; Abu0022u.97s (15 May 1998) the Fiji Court of Appeal further emphasized the test and stated how the balance to be made between the interest of the party seeking the amendment and the other side which incurs the cost. The Court unanimously held that:

Generally, it is in the best interest of the administration of justice that the pleadings in an action should state fully and accurately the factual basis of each party’s case. For that reason amendment of pleadings which will have that effect are usually allowed, unless the other party will be seriously prejudiced thereby (G.L. Baker Ltd. v. Medway Building and Supplies Ltd [1958] 1 WLR 1231 (C.A.)). The test to be applied is whether the amendment is necessary in order to determine the real controversy between the parties and does not result in injustice to other parties; if that test is met, leave to amend may be given even at a very late stage of the trial (Elders Pastoral Ltd v. Marr [1987] NZCA 18; (1987) 2 PRNZ 383 (C.A.)). However, the later the amendment the greater is the chance that it will prejudice other parties or cause significant delays, which are contrary to the interest of the public in the expeditious conduct of trials. When leave to amend is granted, the party seeking the amendment must bear the costs of the other party wasted as a result of it.

07. The plaintiff and the defendants entered into a Sale and Purchase Agreement whereby the defendant agreed to purchase artefacts belonged to the plaintiff. The total purchase price of the articles was $ 122,673.56. The plaintiff claimed that, the defendant only paid $ 46,450.00 and failed to pay the balance of $ 76,223.76. The plaintiff sued the defendants for the balance amount, damages, interest and costs on indemnity basis.

08. The first defendant filed the Statement of Defence and denied entering into an agreement with the plaintiff. On contrast, he stated that, his wife – the second defendant operated the business under the name and style of “Islander’s Boutique” and she subsequently transferred it to him in November 2016. The first defendant further stated that, the second defendant purchased general stock from the plaintiff on 09.03.2015 for the amount of $ 30,000.00 and full payment was made. He further stated that, on request of the second defendant, he made three payments to the plaintiff after he took over the business from the second defendant. Accordingly, a sum of $ 48,450.00 was paid to the plaintiff as pleaded by the first defendant in his statement of defence.

09. In addition, the first defendant made a counter claim and stated that, he was operating his business in the premises belonged to the plaintiff and he paid all rents on time without delay. Finally, the first defendant on 25.11.2017 notified the plaintiff of termination of tenancy from 24.12.2017 and left to New Zealand. The first defendant further stated that, the plaintiff however illegally took over the business of the defendant and all stocks. The first defendant then was compelled to return to Fiji on 30.11.2017 in order to take control on his shop and business. Therefore he claimed special damages in sum of FJ$ 16,500.00 and NZ$ 1,500.00 being the airfare from New Zealand to Fiji.

10. The parties then proceeded to the Pre- Trial Conference Minutes after completing the discoveries. In the meantime, the parties explored the settlement too; however it was not eventuated. At this stage the first defendant moved the court by the current summons to amend the defence and counter claim. The first defendant annexed a copy of the proposed amended statement of defence and counter claim with his affidavit that supports the summons.
    
11. It is evident from the amendments proposed by the first defendant that, the first defendant wants to include the averment that, the invoices issued by the plaintiff did not comply with the statutory requirements of section 6 of the Sale of Goods Act and Value Added Tax Act and the regulations thereunder. Furthermore, the first defendant proposes to give the correct name his business; fine-tune the language used in some paragraphs; and to highlight the fact that the plaintiff failed to issue receipts for the rent paid by him. Firstly, it clearly appears from the proposed amendments that, there is no change in the amount of special damages he claimed in his counter claim, nor in the rate of interest sought in the original statement of defence and counter claim. The first defendant, by his proposed amendment, is not trying to get an opportunity to renew his defence, but proposes to give more clarity to his defence and counter claim.
    
12. Secondly, the real issues between the plaintiff and the defendants are the disputes over sale of certain goods, payment of price of the goods and alleged takeover of premises of defendants’ business and the stocks that were available at the premises at the time of alleged takeover by the plaintiff. The proposed amendments are not only closely connected with the real issues between the plaintiff and the defendants, but also necessary to properly adjudicate the real issues between them. Thirdly, the proposed amendments include the materials that were discovered during the discovery and PTC process by the parties. On the other hand, there is nothing to show that, the proposed amendments will cause any prejudice to the plaintiff. The proposed amendment will serve to do justice between the parties. The only concern would be the cost of filling the reply to the proposed amendment and this could be compensated by the awarding costs for the amendment.
    
13. Accordingly, I make the following orders:
    
    1. The leave is granted to the first defendant to amend the statement of defence and counter claim as proposed, and
       
    2. The first defendant should pay a summarily assessed costs in sum of $ 1,000.00 to the plaintiff within 14 days.
       

U.L Mohamed Azhar
Master of the High Court
At Lautoka

01.05.2024