IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Civil Case No: - 190/2010

BETWEEN:

PARWATI CHAND
PLAINTIFF,

AND:

VINOD PATEL & COMPANY
DEFENDANT

: RESENE PACIFIC LIMITED
THIRD PARTY.

For Plaintiff : - Mr. Ram Chand,
For Defendant : - Mr. Singh R.
For Third Party : - Ms. Narayan B.

RULING.

1.	The Plaintiff brought in this proceedings seeking to recover damages in the sum of $ 12,191.73 for the loss that she suffered as a result of painting materials purchased from and sold by the Defendant Vinod Patel & Company. The Writ was issued on the Defendant and the Defendant filed their Statement of Defence together with the third party notice on Resene Pacific Limited. Subsequent to that the Plaintiff filed his reply to the statement of defence of the Defendant and Third Party filed their statement of defence. 
 
2.	On 01st of November 2010, the learned counsel for the Defendant raised an oral objection that there is no legal person exists by the name of "Vinod Patel & Company" and he is representing Vinod Patel & Company Limited on whom the writ was served. The learned counsel for the Defendant made an application to strike out this proceeding base on the said objection. 

3.	Meanwhile on 11th of November 2010 the Plaintiff has issued a notice of motion with an affidavit in support to correct the name of Defendant and its registered address as "Vinod Patel and Company Limited, P.O. Box 434, Varoka, Ba". 

4.	Subsequent to the said notice of motion the Defendant filed his affidavit in reply which was followed by the plaintiff's affidavit in reply to the affidavit of the Defendant. Meanwhile the learned counsel for the third party informed that they have no objection for the proposed amendment. Upon filing their respective affidavits, both learned counsels for the Plaintiff and the Defendant submitted their written submissions. 

5.	Upon careful perusal of the affidavits and the written submissions tendered by the Plaintiff and the Defendant, I now proceed to deliver my ruling on this issue of amendment to correct the name of the Defendant.

6.	Though I do not intend to reproduce the arguments and the submissions relied on by the parties, I will briefly point out the main issues raised by them as follows; 

i.	Had the plaintiff acted on the basis of a genuine mistake and legally and procedurally entitled to rectify the same?, 
ii.	Is the objection of the Defendant vexations and frivolous? 
iii.	If the application for amendment allowed, would it prejudice the Vinod Patel & Company Limited and bring them into the proceeding as Defendant at the close of the pleadings?

7.	In order to determine the issues raised by the parties I now proceed to examine the relevant legal provisions and laws pertaining to the issue of amendment to correct the name of the party in a civil proceeding. 

8.	Order XIV rule 1 of the Magistrates' court rules stipulates that " the court may at any stage of the proceedings, either by its own motion or on the application of either party, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessarily or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be made. Every such order shall be made upon such terms as to cost or otherwise as shall seem just". 

9.	Lord Justice Lloyd in " Sardinia Sulcis and All Tawwab" ( 1991) 1 Lloyd's Rep 201) held that " there is power to amend, even though it is alleged that the effect of the amendment is to add a new party after the expiration of the limitation period. But the court must be satisfied 1) that there was a genuine mistake, 2) that the mistake was not misleading, 3) that the mistake was not such as to cause reasonable doubt as to the identity of the person intending to sue, and 4) that it would be just to allow the amendment.". 

10.	The Plaintiff specifically stated in her affidavit that she was misled with the name of the defendant as she was carried away by the various names used by the defendant company itself. I am convinced with the plaintiff explanation on her mistake though the defendant contended that the plaintiff should have acted with due diligence in order to ascertain the name of the Defendant before the inception of this proceedings. I agreed with that contention of the defendant, but the test of determine the mistake is not strict as such. In Mitchell v Harris Engineering Co. Ltd ( 1967) 2 Q.B.703 held that " there was in my view a genuine mistake by the junior clerk on the facts stated, though it is true that with greater degree of diligence, and perhaps with a lesser degree of self reliance, he would not have made it. It is suggested that mistakes here means error without fault; but I do not see why the word should be narrowly construed". In line with the Mitchell v Harris Engineering Co Lit ( supra) I infer that this was a genuine mistake done by the legal clerk of the Plaintiff lawyer. 

11.	There is no reason to believe that the Defendant has been misled with this mistake. Again I am assisted by the Mitchell v Harris Engineering Co Ltd ( supra) where it was held " it was not misleading, because when the writ was served, it was served on Mr. Butteaux, the secretary to both company, who could not have failed to observe". 

12.	Returning to the facts of this case, the writ was served at Center Point, Laucala Beach estate, in Suva the same address the Defendant is also relying on. Upon serving the writ, the Defendant filed his statement of defence and also filed third party notice against Resene Pacific Limited. By virtue of these facts, I am convinced that the Defendant has not been misled with the mistaken name of the defendant. 

13.	It is very important to determine whether this mistake cause reasonable doubt as to the identity of the person intending to sue. Lord Justice Griffiths held in " Evans Constructions Co Ltd v Charrington & Co. Ltd ( 1983) 1 Q.B. 810, that " the identity of the person intended to be sued is of course vital. But in this case I have no doubt that the identity of the person intended to be sued was the current landlord. The wording of the rule makes it clear that it is not the identity of the person sued that is crucial, but the identity of the person intended to be sued, which is very different matter". 

14.	In Thistle Hotels Ltd v Sir Robert MrAlpine & Sons Ltd, Lord Justice Russell held that "the rule recognizes by its terms that when the application is made it will necessarily often involve the substitution of a new legal entity. What it must not do is to substitute the identity of a party intending to sue. The party intending to sue has remained the same but there has been attached to that party a different name". 

29.	The principles enunciated in above mentioned judicial precedents were clarified and provided a definitive account of the principles to be applied on the issues of identity of the person intended to be sue in "Adelson v Associated Newspapers Ltd ( 2007) 4 All E.R.330) where it was held that "Most of the problems in this area arise out of the difference, sometimes elusive, between an error of identification and an error of nomenclature. An error of identification will occur where a claimant identifies an individual as the person who has caused him an injury, intends to sue that person, describes him in the pleadings by the correct name, but then discovers that he has identified the wrong person as the person who has injured him. An error of nomenclature occurs where the claimant identifies the correct person as having caused him the injury, but describes him in the pleadings by the wrong name".

15.	In line with the aforementioned judicial precedents, I now turn to the facts of this case. I am convinced that there is no doubt as to the identity of the person intending to sue, namely the person who sold painting material to the Plaintiff. The description of the intended defendant is clear enough to incline that the plaintiff's mistake was an error of nomenclature. 

16.	I now turn to the third issue that is if the application for amendment allowed, would it prejudice the Vinod Patel & Company Limited and bring them into the proceeding as Defendant at the close of the pleadings. In line with my findings in above paragraphs, I am of the view that there never was a non existing defendant. Accordingly the amendment of the name of the defendant relates back to the institution of this proceeding. 

17.	Having considered all these reasons set out in foregoing paragraphs, I allow the Plaintiff's application to amend the name of the Defendant and cost of this application shall be the cost of this cause. 

18.	28 days to appeal,

On this 30th day of June 2011.

R.D.R.THUSHARA RAJASINGHE
RESIDENT MAGISTRATE, SUVA