Mangula Transport and Sales Pvt Ltd v Malawi International Transport Co.. (Civil Cause 1987 of 1994) [1995] MWHCCiv 19 (26 April 1995)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1987 OF 1994 MANGU LA TRAN SPORT AND SALES(PRIVATE) LTD ............ . . . P LAINTIFF MA LAWI INT ER NAT I ONAL TRANSPORT CO.: . . . . . . . . . . . . . . .. .. . DEFEHDANT AND CORAM R R Mz i kamanda, Senior Deputy Registrar Mr Banda for the plaintiff Mr Ng'ombe for the defendant RULING Mr Ban da representing the ~laintiffs f i l ed summo n s for d i r e cti on un der which he seeks direction as to h ow the t rial in the matter s hou l d proceed. He also seeks to a men d t o o f summo ns a s well as the statem~nt of claim i n t h e mann er a l r eady f ile d wi th the summons. t h e writ Mr Ng' omb e for the defendant opposed t he a pplicat ion for vario us r eas ons . He sees the application t o ame n d a s h a ving bee n p ro mp t e d b y his own application t o have th e action d i sm i ssed un der Order 111 rule 7 of the Rules o f th e Hi gh Court. This app l i c at ion wa s filed on 20th _December, 1 9 94 while the or i g i na l s u mmons for dir e ctiohs was filed on 3rd Nov e mb er, 1994. The a pplica t i on to dismiss action has never be e n p ro s ec u ted. Duri n g sought t o br ing ou t sough t cer t ai n particulars ihclutling whe t her Mangula Tr an sport and Serv ices is re g istered in Malawi unde r well as an ~dmiss i on that some of the invo i ces suppo r ti n g the c l ai m o r igin ated from different co~pan i es from Zi mbabwe and The c l a im is for 27,865 Zimbabwe dollar s . .. Botswan a . t h e he aring of the summons for dire ct ion Mr Ng 'o mbe the reasons for his earlier a pp lica t ion. He t he Companie s Act as Th e app lication is also opposed on the groun d tha t this acti o n is a duplication of a pending action in Civ il Caus e No. - 2 - 241 of 199 4 where all the invoices appear also in the pre sent act ion. Mr Ng'ombe said what he sought was not to dismis s the act ion but a n order for further and better particu lars on the iden tit y o f the parties suing, the monies claimed b y the pla inti ffs a nd thirdly whether the plaintiffs inten d to p roceed with th e the pre sen t matter is not ready for trial. Civil Cause 241 of 19 9 4 is re ady for trial. two actions. For these reasons Mr Ng ' omb e submi ts that I mu st say at the outset t hat my primary fun ction a t mome nt is to consider the application which has b e e n pro secuted . In doing sd I must decipher those aspects which ne ed con side rat ib ns under the application. the The fi rst point to be considered is that Mr Banda i s t h at an I fi nd it I must confe ss tha t to correct the name of a party may be al lowed It would appear that the amendmen t should not b e t he application. Order 20 rule 5 mak e s provi sion for appl ying for leave to amend the writ of summons in the manner fi led wit h a me ndme nt of wr i t or pleading with leave. Order 20 rule 5 subrule 1 provides that the court may at any stage of th e proc eed in gs allow the plaintiff to amend his writ on suc h terms as t o c os ts or otherwise as may be just and in su ch mann er as it may direc t. Order 20 rule 5 sub rule 3 provid e s a mendme n t notw ith s t a nd ing that it is alleged that the effe c t of th e amen dme n t wi ll be to substitute a new party if th e c o urt is sa tisfi ed th at t h<mistake sought to be corre ct ed was a genuine mi s t ake an d was not misleading or such as t o c aus e any re asonabl e doubt as to the identity of th e person int e nd ing to sue. Mr Ng 'ombe opposes the application to amend. He h as given two rea son s for the objection. di fficu l t to ap p reciate the first reason for the obj e cti on. One ha s to se arc h through Mr Ng'ombe's submission t o trace the first re ason. al l owed b ~cause there is on file an application to dismi ss the ac tion un der Order 111 rule 7 of the High Court Ru les. That ap plica t ion has been dormant. It wa s not p ros ecuted on the date it was set down for heari ng and th e de fen dan t made no effort to ensure that the summons is prosecu t ed. conten ds tha t the p l aintiff cannot amend because they have not an swere d to the defendant's question for an admiss i o n th at the invoice s sup porting the claim originated from two compan ies on e fro m Botswana and the other from Zimbabwe. Wha t Mr Ng' ombe se ems t o be seeking here is further and better par ti c ula rs. have s ear che d the file. There is no order for fur ther a nd be tter pa rti culars. The third aspect which seems to be apparent in Mr Ng' ombe's objection to an order for directi on whic h in t his c ase would include leave t o amend is that th e matte r is not yet re ady f or trial. This he says is so because there a re ce rtai n matt ers which need tb be clarified before the ma tter can go for t r ial . It is trite that a matter will be ready f or trial when t he pl eadings are cloased or are deemed clos ed . cas ~ t he de fendants served the plaintiffs with a defence on 31st Oc tobe r 199 4. That defence contains no countercl aim. of Order 18 Rule 20 Subrule I of R. S. C. the pleadings are It seems to be the case also that Mr Ng ' omb e It has not been pro s e cute d. I n terms In this I '• ...................... - 3 - de e med to be closed- ( a) the expiration of 14 days af t er se r v ice of the a t re ply or, if there is no reply but only a defe nce t o a coun t erclaim, after service of the defen c e to c ounterclaim, or ( b) i f neither a reply nor a defence to coun terc l aim J s served, at the expiration of 14 days afte r service ·: of the defence. In t erms of Order 18 rule 20 subrule 2 th e pleadings in an ac ti on are deemed tq be closed at the time as above no tw ith st and ing that any request order for particul a r s h as been ma de bu t has not been complied with at tha t time. The cl osing of pleadings is of vital signifi can c e because amo ng o th er things it fixes the date by reference to wh i ch the summons f or directions in the action must be iss ued. Th e pl ai nti ff is obliged under Order 25 rule 1 to take out a summons fo r dire ctio ns within one month after the pleading s in t he ac ti on are deemed to be closed. we r e cl os ed when the defence was served on 31s t October , 1994 an d o n 4 th November, 1994 the plaintiff t ook ou t summon s for di r e cti on s di ffic u l t ho u r th a t th e mat t er is not yet ready for t rial. It is th e refore to appre c iate why the defendan t should a rgue a t this i ncompl i ance with Order 25 Rule 1. In the presen t case pl e adings Th~ se cond reason for the objection as rais e d by Mr Ng ' ombe is t hat the present action is a dupli c ation of a pending ac ti on in Ci vil Cause No.l 241 of 1994. Invoices in th a t matter ap p e ar on th e action in Civil Cause No. 1987 of 1 9 94 an d cl a r ifi ca tio n has been sought in view of t he embar rassm e nt that dupl icat i on has caused to the defendant. Mr Banda argue s that if t hat is t he pos i tion then the defendant has a g ood d e fence to th e act ion a lthough he contends that the p o si ti on is no t thus. I must ha ste n to say that I have not seen file No 241 o f 1994 no r h ave I s een the invoices being referred to . Moreove r I do no t think t h at it i s my business now to look a t co ns ide ri ng a summons for directions. Th e re has been n o ap pli cation t o have the matter in Civil Cause No. 241 of 1994 con s o li da t ed with the present matter. t h ese wh en I am As reagrds leave td amend I am satis i fed t h at thi s is a pro p e r case where leave must be granted to the pl aintif f s to ame n d t he wr it in t e rms of Order 20 rule 5 sub ru l e 3 of the R. S . C . to b e d is pen sed wi th but statement of clai m a ttached t o the ame n ded writ to be served within _14 days hereof . I gr ant leave to amend. The serv ic e of t h e ame n ded writ I a lso order the other directions sought i n th e f o llowing man n er- ( a) tr igl Shall be at th~ Principal Registry of th e High Court of Malawi before a s i ngle j udge s i tting a lohe wi t hout a jury on a da t e to be fi xed b y the · Regist~ar. · ( b) di scovery shall be by exchange of lists of d o cuments v erified by affidavits within 14 days a nd in s pection o f the said documents shall be with i n 7 day . - . t hereafter . (c) ~ he case is rated at 'C'. (d) the case to be set down by 31st May, 1 9 95. (e) Co sts in the c ause. MADE in Chambers this 26th day of Apri i , 19 95 at Bl a nt yre.