Casalee Cargo Limited v Mjojo t/a Opal Enterprises (Civil Cause 186 of 1990) [1991] MWHC 37 (14 January 1991)

——es ir Ou mle Noli Ge lea {8 THE HIGH COURT OF MALAWI {yu ieee, PRINCIPAL REGISTRY CiviL CAUSE NUMBER 136 OF 1990 BETWEEN: @ASALER CARGO LTD. .cccss and G. C. end Weh. MIOs0 t/a OPAL aac Thee * Coram: 0 F Mwaunguiu, Acting Registrar Kadwa, of Counsel for the Plaintizi Mhone, of Counsel for the Defendant RULING st aoe en nian This is an ap the action appeaz aiig considered The action initially waa against ©. C. Mjoje and b. L. Mjojo trading as Opal Enterprises. The defendant, according te the writ,was a firm. Obviously the two Mjejozs were trading in that ‘name until the 2ist of April 1989 when the firm was created & company under the Companies Act of 1984. The firm as a matter of course would be listed under the Business Names Registration Act. The Cempany Register and the Register of the Business —_ are kept at the office of the Registrar General. I cannot exactly say what happens to the latter register if the firm is registered under the Companies Act. Whatever happens at the Registrar Generai's Office it seems here a confusion arose because the firm still appears on the Regieter. There was no effort to check the Company Register. All this is besides the point. The erux of the matter is that the firm is now a company oh yie of : Opes Pnterprises Limited, i ¢he neme of the defendant toa This case is similar to Mitchell vs. Harris Engineerin + Company Limited lise 67|2 all EVRy 882. “iv that case therel| were tas companies known as Harris Engineering Company Limited, one registered in Ireland and another in England. The plaintiff forgot to check the irish register as well, B/ etaee The wrong company was sued. Even though the effect was to introduce another party the amendment was allowed. in Lord Dennings words: yt is very coroner Gase for amendments. It was a genuine mistake by bhe plaintiff's solicitors ....* Of course before this decision there were a serries of decisions on the facts much like the present one where the amendment like the one sought here was scefused. In Davies vs. Bisby Brothers Ltd [1960/3 All E. R. 672 the plaintif? had an accident while employed by a firm called Elsby Brothers, At the time of the suit the firm had been taken over by a Limited company styled Elsby Brothers Limited. The solicitor did not check the companies register but the telephone directory where the firm still appeared. (See also Wittam vs. W. J, Daniel @ Company Ltd, [1961/3 All E. R. 796. All GE these decisicna turned on the question that an amendment could not be had for substitution of a party. These decisions have now been superceded by Order 20 Rule 5(3) (per Lord Denning in Mitchell vs, Harris Engineering Co. Ltd., ibid page 686, per Nielad d., in Redriguez vs. Parker [1966/2 All E. R. 349. The matters to be considere are Laid down by Nield J at page 365: "In my judgment before the Court will grant leave to amend as proposed here the Court must be satisfied of three things: first, that the mistake to be corrected was a qenuine mistake, secondly, that the mistake was not misleading nor such as to @ause any ressonable doubt as to the identity to be sued, thirdly, that it is just to make the amendment". | Vo - On the £irst point 1 find the mistake here to be genuine, Of course, the defendant'm counsel advised the plaintiff's counsel, in order to confirm the doubt the plaintiff's counsel was satilefied oniv with whar was in the Businesa Names Register, checked Campany Register yy apeis as well. This Fessler oan Engineering re ye prehably — ee et : ee & ms eo blamewor Shy Due va DOLACS or &h page obd: *lt is suggested that mistake here Weans error Ire without fault: but { do net see why the word should be so narrowly construed.” I think there was a genuine mistake here. B/eenee On the secon@ aspect i would have had congsiderable difficult had it not been for what counsel for the defendant said in submission. It ig net clear from the pleadings whether the | transaction was contracted with the fixm or the company that teok over from the firm. Counsel for the defendant however gaid that he had advised the plaintiff to sue the company or oo @lse he would contest, an indication that the transaction was with the company not the firm as was envisaged by the plaintiff. Pinally, I think it is just to make the amendment. It is Gardinal to Justice that issues must be settled between the correct parties to save multiplicity of actions and costs. I allow the amendment with costs. a. The defendant car appeal Tl a Judge in Chambers. tna fl Made in Chambers this ta jay of January 91. a f ; Ns 4 | pee mms settee | : S 7 i eee fp | AO WZ o> F Mwaun RCTING REGISTRAR OF TYE ‘ _- ene x Sele : os