S.L. Independence Fishing Co. Ltd v Rocca, 1972-73 ALR S.L. 138

SECTION 21

and that there has been no agreement to surrender by the defend ant. In the circumstances, I dismiss the plaintiffs' claim with costs to be taxed. Suit dismissed. SIERRA LEONE INDEPENDENCE FISHING COMPANY LIMITED v. ROCCA and BARBERA High Court (Tejan, J.): October 6th, 1972 (Civil Case No. 202/72)

[1] Civil Procedure-pleading-amendment of pleadings-application normally by summons but court may give leave to amend during hearing no amendment if would cause injustice, make substantial change in type of action or still leave plaintiff with no title to sue at date of writ: Although an application for leave to amend pleadings should usually be made by summons the court has inherent jurisdiction to give leave to amend during the hearing but should do so only if it can be made without injustice to the other party and should refuse to do so when the amendment would change the action into one of a substantially different kind which could conveniently be the subject of a fresh action or where the amendment would still leave the plaintiff without any title to sue at the date of the writ (page 140, line 38- page 141, line 23).

[2] Civil Procedure-writ of summons-name of party-when misnomer crucial-writ issued in name of non-existent plaintiff void and such irregularity may not be rectified: An irregularity in pleadings which renders the proceedings void cannot be rectified, so that if a writ is served in the name of a non-existent plaintiff, such as a company de scribed as "Limited" but not in fact of limited liability, the writ is void and the defendant cannot therefore be held to waive the irregularity by entering an unconditional appearance and taking part in the proceedings before the error is discovered (page 142, lines 6-17, lines 34-40). [ 3] Companies-name-name in litigation-when misnomer crucial-writ void if issued in name of company described as "Limited" but not in fact of limited liability: See [ 2] above. The plaintiffs, suing in the name of the Sierra Leone Indepen- 35 dence Fishing Co. Ltd., brought an action against the defendants in the High Court. During the trial the defendants and the plaintiffs' counsel discovered that the plaintiffs' company had never been a limited liability company. The plaintiffs sought leave to amend the writ 40 by deleting the word "Limited'' and substituting the names of the two partners in the company.

I S.L. INDEPENDENCE FISHING co. LTD. "· ROCCA, 1972-73 ALR S.L. 138 i , H.C. The defendants opposed the application contending that the writ was void, having been issued in the name of a non-existent company, and that the rules relating to amendments did not cover such fundamental irregularities. The plaintiffs submitted that the writ was not void ab initio and 5 that the error was curable. They also contended that, by entering an unconditional appearance, the defendants had waived their right to set aside the writ. The plaintiffs' application was dismissed and the writ set aside as a nullity. 10 Cases referred to:

(1) Australian Steam Navigation Co. v. Smith & Sons (1889), 14 App. Cas. 318; 61 L.T. 134.

(2) Basma v. New India Assur. Co., 1964-66 ALR S.L. 198, distinguished.

(3) Budding v. Murdoch (1875), 1 Ch. D. 42; 45 L.J. Ch. 213.

(4) Clay v. Oxford (1866), L.R. 2 Ex. 54; 15 L.T. 286, followed.

(5) Creed v. Creed, [1913] 1 I.R. 48.

(6) Davies v. Elsby Bros. Ltd., [1961] 1 W.L.R. 170; [1960] 3 All E.R.

(7) Etablissement Baudelot v. R.S. Graham & Co. Ltd., [1953] 2 Q.B. 271; [1953] 1 All E.R. 149, distinguished.

(8) Ives v. Brown, [1919] 2 Ch. 314; (1919), 122 L.T. 267.

(9) Mac{oy v. U.A.C. Ltd., [1962] A.C. 152; [1961] 3 All E.R. 1169, dicta of Lord Denning considered.

(10) Alexander Mountain & Co. v. Rumere Ltd., [1948] 2 K.B. 436; [1948] 2 All E.R. 482.

(11) Pearlman (Veneers)S.A. (Pty.)Ltd. v.BemhardBartels, [1954] 1 W.L.R. 1457; [1954] 3 All E.R. 659.

(12) Raleigh v. Goschen, [ 1898] 1 Ch. 73; (1898), 77 L.T. 429.

(13) Tetlow v. Orela, Ltd., [1920] 2 Ch. 24; (1920), 123 L.T. 388.

(14) Tildesley v. Harper (1878), 10 Ch.D. 393; 39 L.T. 552, dicta of Bram well, L.J. applied. Legislation construed: High Court [formerly Supreme Court] Rules (Laws of Sierra Leone, 1960,

cap. 7), O.XII, r.2: 40 The relevant terms of this rule are set out at page 141, lines 27-32.

O.L, r.l: The relevant terms of this rule are set out at page 142, lines 25-30. Marcus-Jones for the plaintiffs; C.N. Rogers-Wright for the defendants. 5 TEJAN,J.: This is an action brought by the plaintiffs in the name of Sierra Leone Independence Fishing Co. Ltd. At the close of the evidence of the representative of the plaintiffs, it came out that the plain tiffs' company is not and never was a limited liability company. 10 Counsel for the plaintiffs at this stage sought leave to amend the writ of summons by deleting the word "Limited" and adding the words "E.W. Satori and Teddy Jones as partners." Counsel for the defendants objected to the application and presented the following argument. The action commenced in the 15 name of an incorporated company and this means that on the date of the issue of the writ, there should have been in existence such a person or entity, but in fact such person or entity was not on that date entitled to sue. Mr. Rogers-Wright further argued that a writ of summons was not available to an unborn child or a dead man, 20 and that the application to amend only sought to make lawful on September 22nd, 1972 what was not lawful on May 2nd, 1972, the date of issue of the writ. He also argued that if the amendments were allowed, it would mean that a writ which should never have been before the court 25 was now brought before the court by a device, and that this was not the purpose of the rules relating to amendments; and that amendments were limited to correcting an irregularity or making better what was not clear. Mr. Rogers-Wright then referred to the case of Macfoy v. U.A.C. Ltd. (9) and particularly to the judgment 30 delivered by Lord Denning. Dr. Marcus-Jones for the plaintiff submitted that the writ was not void ab initio and referred me to the case of Basma v. New India Assur. Co. (2). Dr. Marcus-Jones also submitted that the fact that an unconditional appearance was entered deprived the defend- 35 ants of their right to set aside the writ. He then made reference to O.XII, r.2 of the High Court Rules (cap. 7), as amended, and submitted that the error in the present case was curable. Usually an application to amend in such a case is to be made by summons, but as the court has inherent jurisdiction to amend, 40 such application can be made at the hearing and leave granted: see Budding v. Murdoch (3) and lues v. Brown (8).

S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L. 138 H.C. With regard to the general principles of when leave to amend should be given, Bramwell, L.J. said in the case of Tildesley v. Harper (14) (10 Ch. D. at 396; 39 L.T. at 553): "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala 5 fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment 10 should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by

Costs

see also Australian Steam Navigation Co. v. Smith & Sons

The attitude of the courts leans favourably towards the granting 15 of amendments, and an amendment cannot be refused because it introduces a new case: see Budding v. Murdoch (3). But the court will refuse an amendment where the amendment would change the action into one of a substantially different character which could conveniently be the subject of a fresh action: see Raleigh v. 20 Goschen (12), or where the amendment would still leave the plaintiff without any title to sue at the date of the writ: see Creed v. Creed (5). Dr. Marcus-Jones has referred me to O.XII, r.2 of the High Court Rules (cap. 7), as amended. The provision of this rule is 25 that: "Where an action has been commenced in the name of the wrong person as plain tiff . . . the court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in 30 dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just." This provision is substantially the same as is provided in O.XVI, r.2 of the English Rules. The English Rules provide that: "Where an action has been commenced in the name of the 35 wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, 40 order any other person to be substituted or added as plaintiff

upon such terms as may be just." In the case before me, it was after the cross-examination of the representative of the plaintiffs' company that Mr. Rogers-Wright made his discovery that the plaintiffs' company was suing in a 5 wrong name, since the company is hot a limited liability company. It is argued that since the defendants participated in the pro ceedings after the service of the writ, they have waived any right they had to apply for the writ to be declared void and therefore a nullity. I am satisfied that it was at the close of Mr. Satori's evi- 10 deuce that Mr. Rogers-Wright made his discovery, and since the defendants have taken no part in the proceedings after discovering that the plaintiffs' company was not a limited liability company, I think they have the right to ask the court to declare the issue of the writ void. I am equally satisfied that the failure of Dr. Marcus- 15 Jones to have issued the writ in the proper name of the company was a genuine mistake and that there has been no mala fides in his application. The whole question to be decided is whether the writ is void because of a misnomer which goes to the root of the matter or 20 whether it is voidable because of a mere irregularity which does not go to the root of the matter. In order to decide this, I have to consider the effect of non-compliance with any of the rules of the High Court. Order L, r.1 of the High Court Rules (cap. 7), as amended, says that: 25 "Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such a 30 manner and upon such terms as the court shall think fit." Dealing with this provision in his judgment in the case of Macfoy v. U.A.C. Ltd.

(9) Lord Denning said ([1962] A.C. at 159; [1961] 3 All E.R. at 1172): "This rule would appear at first sight to give the court a 35 complete discretion in the matter. But it has been held that it only applies to proceedings which are voidable, not to pro ceedings which are a nullity: for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the 40 court without going under the rule .... " In dealing with what act is void or voidable, the learned Lord of

S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L. 138 H. C. Appeal said ( [1962] A. C. at 160; [1961] 3 All E.R. at 1172) that "the distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more 5 ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and uncurably bad. You cannot put something on nothing and expect it to stay there. It will collapse . . . . But if an act is only voidable, then it is not automatically 10 void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. . . . No court has 15 ever attempted to lay down a decisive test for distinguishing between the two: but one test which is often useful is to suppose that the other side waived the flaw in the proceedings or took some fresh steps after knowledge of it. Could he afterwards, in justice, complain of the flaw?" 20 In Macfoy's case (9), a Privy Council case, Macfoy's application to declare a statement of claim a nullity failed because after having knowledge of it, he took steps in the proceeding. In the judgment, the following passage of the West African Court of Appeal was recorded ([1962] A.C. at 161; [1961] 3 All E.R. at 25

"The defendant knew when the statement of claim was delivered to him, and he knew it was then vacation. He made no application in the court below to set aside the statement of claim as having been delivered irregularly; he did not raise 30 the point in any way until he appeared in this court to argue the appeal, over eight months after the statement of claim had been delivered. Instead of applying to have the statement of claim set aside, he allowed judgment to go against him by default and then moved to have the judgment set aside. In 35 that application, he proceeded on the basis that the judgment was a regular and subsisting one. In support of the application, he made an affidavit with the object of showing that he had a defence on the merits, and set out certain averments intended to establish a basis of fact for that contention." 40 Having referred to Macfoy 's case (9), I shall now consider the

conduct of the defendants in the present case. The writ of sum mons to which was attached the statement of claim was issued on May 2nd, 1972. The writ and the attached statement of claim was headed: 5 "Sierra Leone Independence Fishing Co. Ltd. and Domenico Rocca & Giovanni Barbera." There is no question that the writ and the statement of claim were served on the defendants in the above form. The defendants consulted counsel who, like the defendants, accepted the docu- 10 ments in the form they were served. Counsel for the defendants then entered a caveat on May 4th, 1972 and an unconditional appearance on May 5th, 1972. Thereafter, the proceedings con tinued in the name of Sierra Leone Independence Fishing Co. Ltd. There has been nothing either from the pleadings or evidence to 15 show that the defendants or their counsel knew that the company was not a limited liability company. I am equally certain that Dr. Marcus-Jones was at no time throughout the proceedings aware that the plaintiffs' company was not a limited liability company until the fact came out under cross-examination of Mr. Satori. 20 Perusing the case file for assistance, I find that Mr. Satori knew that his company was referred to as a limited liability company when a letter written by Mr. Rogers- Wright on behalf of the defendants described the company as a limited liability company. This letter was dated March 3rd, 1972. Mr. Satori also signed and 25 swore to his affidavit dated May 11th, 1972 and he must have been expected to see that the heading of the affidavit he signed and swore to described the company as a limited liability company. In these circumstances, one would have expected Mr. Sa tori to call the attention of his solicitor to this mistake. Leaving whatever 30 conclusion I might come to from the judgment in Macfoy 's case (9 ), I shall now proceed to refer to some of the authorities in connection with this matter. It seems to me that apart from the rules of court, the pro cedure in this kind of case is governed almost entirely by the 35 Common Law Procedure Act, 1852. In the case of Pearlman (Veneers) S.A. (Pty) Ltd. v. Bernhard Bartels (11) the plaintiffs obtained judgment, and the court held that there was jurisdiction to amend the proceedings, including the judgment, to describe the defendant as Joseph Bartels, trading 40 as Bernhard Bartels, on the ground that there had simply been a misdescription.

S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L.l38 H.C. In the case of Etablissement Baudelot v. R.S. Graham & Co. Ltd. (7) the plaintiffs, the heirs under the will of a deceased Frenchman who were carrying on his business, issued a writ against the defend ants for the price of goods sold and delivered. In intended compliance with O.IV, r.1 of the English Rules of the Supreme Court 5 there was indorsed on the writ a statement that the plaintiffs were a company incorporated according to the laws of France, the plaintiffs' solicitors having been so advised by French lawyers. In fact, that was not correct, as there had been no formal act of incorporation. The defendants applied to strike out the name of 10 the plaintiffs and all subsequent proceedings, whereupon the plaintiffs applied to amend the writ by adding as plain tiffs the names of the individuals who were actually carrying on the business. It was held by Sellers, J. that the case was not one in which the writ had been issued of a non-existent person as plaintiff, but one 15 of misnomer of the plain tiffs and accordingly, the court had power to make the amendment. The case went to the appeal court which upheld the decision of Sellers, J. after taking into consideration the facts in the case. In his judgment Singleton, L.J. referring to the case of Clay v. Oxford (4), quoted a passage in the judgment 20 of Bramwell, B. as follows ([1953] 2 Q.B. at 276; [1953] 1 All E.R. at 150): " 'It cannot be said that this is an amendment "necessary for the purpose of determining in the existing suit the real question in controversy between the parties," nor is this an 25 application made between the parties to the suit; for there is no plaintiff, and, therefore, no existing suit, and no question in controversy between the parties.' " The learned Lord Justice went on to mention O.XVI, r.2 of the English Rules of the Supreme Court referred to in the judgment of 30 Russell, J. in Tetlow v. Orela (13) in which the learned judge said ([1953] 2 Q.B. 277; [1953] 1 All E.R. at 150): "'In my opinion that rule means that, where an action has been commenced between two living parties by a living plaintiff, and the living plaintiff afterwards turns out to be the 35 wrong person, an application may be made to the court, and the court can substitute another person for the living plaintiff or may add another person as co-plaintiff as the case may be. But it does not justify the court in creating a plaintiff in an action for the first time.' " 40 It is apparent that in each of these cases, there had been a living