Casalee Cargo Limited v Tchongwe (Civil Cause 924 of 1980) [1987] MWHC 44 (6 November 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 924 Pf /OS%- BETWEEN: CASALEE CARGO LIMITED .......... a es ae ee APPELLANT ~ and - ALEX TCHONGWE Co a ee RESPONDENT ATS “Rega RRSREE RSE carne RETA Coram: MBALAME, J. Maulidi, Counsel for the Appellant Neg'ombe, Counsel for the Respondent Nadyekale, Law Clerk = ca 2 SS. JUDGMENT This is an appeal agajnst the decivion of the learned Registrar of the 6th of August, 1987, in which the plaintiff's application to amend its statement of claim was dismiz=eu with costs. I bear in mind that the appeal is before me by way of re-hearing and I treat the matter as LF it hae come before me for the first time. The plaintiff has filed four grounds of appeal and they are as follows: 1) The learned Registrar erred in holding that two causes of action in the original statement of claim and the proposed amended statement of claim can not be gaid to have arisen from the same facts or substantially the same facts. = : = 2) The learned Registrar erred in arriving at the said conclusion without any evidence to- subetantiate- 16... = = = “ 3) The learned Registrar erred in not holding that the two causes of action arose from the same facts or substantially the same facts having regard to the plaintiff. 4) The learned Registrar erred in not considering that amending one's pleading is a right which should not be denied where the amendment sought would not prejudice the opposite party. —— ee = In arguing the appeal Mr. Maulidi, who appears for the plaintiff has referred this Court to Order 20 rule 5. He submite that it is a Suiding principle of cardinal importance on the question of amendment that, generally, an amendment of the nature sought here ought to be made for Purposes of determining the real question in controversy between the parties herein. He contends that the amendment being sought is based on the same facts ag the original statement of claim and that the defendant will not, therefore, be prejudiced in any way. It is further submitted that any inconvenience caused on the part of the defendant can be adequately compensated for with COScte, The appeal is very vehemently opposed by Mr. Ng*ombe, who appears for the defendant. He contends that the amendment sought will result in a totally different action based on new facts altogether. He has Submitted that while the action is in respect of charges for services rendered by the plaintiff in clearing and forwarding the defendant's goods, the amendment will result in an action for the Price of goods sold and delivered to the defendant. In Ground 2 of the Grounds of Appeal the appellant contends that the learned Registrar erred in deciding that the proposed amended statement of Claim could not be said to have arisen from the same facts or substantially the same facts because he had no evidence before him to substantiate that finding. With respect to Counsel, it was not up to the Registrar to adduce such evidence. On the other hand it was incumbent upon the plaintiff to show that the amendment sought was actually based on the same facts. The burden Was on the plaintiff and not the Court. Whether that duty was actually discharged will now be the subject of the rest of my judgment. it-1s further argued by the appellant pursuant to Ground 4 that the Registrar did not consider that amending one's pleadings is a right which should not be denied where the amendment would not prejudice the other party. I would iike to look at thie proposition as being general and not automatic. It is subject to other considerations. In dealing with this ground I will also deal with the arguments covered in the rest of the grounds; to with : Grounds 1 and 3. Order 20 rule 5-8/6 sets out the general Principles for the Sranting of leave to amend. It is proposed in that Order that generally speaking all such amendments are to be made to enable the court to determine the real question in controversy. Sight should not be lost of the fact that this is a general principle and that there are cases where this may not necessarily apply. 0.20/5-8/16, which deals with the addition or substitution of a new cause of action, gives power to this court to grant or allow a party an amendment to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the Same facts as the one sought to be amended. The cases of Collins v. Herts CC. 11947) Ka. 398 and that of Dorman v. Ellis (1962) 1 0. B. 583 are also authority and in line with this thinking. Of Spe aa What then is the position in the instant case? The original Writ (Specially Endorsed) was a claim for charges for service rendered by the plaintiff in clearing and forwarding goods and the particulars were as follows: DATE INVOICE AMOUNT 1985 October 9 9218 K605.24 1984 March 6 11111 448.72 " 7 Li120 448.72 # e FAA | 440.56 u My 11146 880.28 a 10 11210 315.95 o -46 11249 535.69 hpril- 16 11666 9,313.93 July 1 14644 1,972.60 Aug. . 25 _ ¥9028 $2875 500 K22,897.69 Lege paid R/N.1408 . of 10/9/85 ; 1,000.00 Balence = a; K21,897.69 The amendment sought is in the following terms: "The Plaintiff's claim is for the sum of X22,128.00 being the price of goods sold and delivered to the defendant or his agent at the defendant's own request particulars whereof are known to the defendant and set out hereunder:-—" and the particulars are as follows: Delivery Note No. Date Amount 2321 01-05-86 K7,878.00 10231 06-11-86 ~=—s- K 14, 250.00 10230 06-11-86 5 . : K22,128.00 In the first place it will be seen that the two claims are totally different causes of action altogether. The first a gee is in respect of services rendered while the eecond is for goods sold and delivered. It is argued, hawever, that they arise from the same facts or substantially the same facts. Tt will be seen that the charges on the invoices which were the subject of the original writ, must have arisen from goods which already belonged to the defendant and on behalf of whom the plaintiff was freighting and clearing. If it is for once to be believed that they are the same goods ing in the propoved amended wrib. hew esmuld the nlaintiff set the defendant goods that already belonged to the defendant? Further still, the dates on the original writ are in September 1985, March 1986, April 1986, July 1986 and August 1986. Those on the proposed amended writ are May and November 1986. The tuo sets do not. correspond -a¢ all and are, in my judgment, the subject of two different transactions. They do not arise from the Same facts or substantially the same facts. The appeal must, inevitably, be disniesed with costs. Made in Chambers this 6th day of November, 1987, at Blantyre. € R. P. Mbalame JUDGE