Supreme Court of Mauritius, 27 février 2020, 2020 INT 46 – Dr MAHMAD SALEEM KEENOO AND ANOR V MR GHUNRAJSING JANKEE AND ANOR

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Dr MAHMAD SALEEM KEENOO AND ANOR V MR GHUNRAJSING JANKEE AND ANOR

2020 INT 46

CN:- 173/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- 1. Dr Mahmad Saleem Keenoo 2. Afssa Banu Sheikh Plaintiffs v/s 1. Ghunrajsing Jankee 2. Narainee Ramlogun Defendants RULING In an amended proecipe dated o8 November 2017 the plaintiffs are praying for an order from this court condemning and ordering defendants to:- (a) remove forthwith the metal gate illegally and unlawfully affixed to the concrete block wall of the Plaintiffs; (b) make good forthwith to the damages caused to the concrete block wall of the plaintiffs as a result of the unlawful and illegal fixation of the metal gate by defendants; (c) restore forthwith the concrete block wall of plaintiffs to the original state it was prior to the fixation of the said metal gate; Alternatively should the defendants fail to comply with the above within a delay to be fixed by Court, then allowing plaintiffs to demolish and reconstruct the concrete block wall at the costs of the plaintiffs; (d) stop forthwith harassing and constituting a "trouble du voisinage" to the plaintiffs; (e) stop forthwith interfering with plaintiffs' peaceful use & occupation and quiet enjoyment of their property.

(f) Condemning and ordering defendants (jointly and in solido) to pay to the plaintiffs the said sum of Rs 300,000/- as damages. With costs.

Pleadings have been exchanged and closed. The plaintiffs are now moving to amend the proecipe anew as follows: – By adding two new paragraphs in the plaint which read as follows: “16. Whereas Plaintiffs aver that recently and while this present plaint is pending before the above Court, Defendants have without the consent and authorization of the Plaintiffs, unlawfully and illegally put up a fence in metal and corrugated iron sheets next to the concrete block wall of the Plaintiffs over a distance of about 56 feet and having a height of about 3 feet over and above the concrete block wall of the Plaintiffs.

17. Whereas the said metal and corrugated iron sheets fence which has a total height of about 11 feet from ground level prevents the circulation of fresh air and sun light into the house of the plaintiffs and has darkened the bedrooms of the Plaintiffs, their son and the bathroom so that Plaintiffs would have to use light even at day time.”

– By renumbering the paragraphs accordingly; – By adding a new prayer under new paragraph 18 which reads as follows:

“(d) pull down and remove forthwith the metal and corrugated iron sheets fence found over and above the height of the concrete block wall of the plaintiffs;”

The defendant is objecting to such motion on the ground that the amendment concerns new averments which are not related to the present set of facts. He therefore moves that the motion for amendment be set aside.

Arguments were heard and I have duly considered the submissions of counsels appearing for both parties.

The legal position

The inherent powers of the court to grant amendments is as per Rule 48 of the District and Intermediate Court Rules 1992 which reads as follows:

“The District Magistrate may, at all times, amend all defects and errors, both of substance and of form, in any proceedings in civil matters, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party to amend or not; all such amendments may be made with or without costs, as to the Magistrate may seem fit, and also such amendments as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties shall be so made.”

In the case of Hems Apparels v SCB Ltd and Ors 2009 SCJ 419 the Supreme Court summarised the principles relating to amendment of pleadings and highlighted as follows:

“I have also considered the relevant principles as they have been set out and applied in the cases of Soobhany & Ors v. Soobhany & Ors [1989 MR 191], Unmar v. Lagesse [1994 MR 183], Maxo Products v. Swan Insurance Co. Ltd [1996 MR 41], some of which have been considered and/or applied with approval in the more recent cases to which learned senior counsel for the defendants has referred, viz., Reekoye v. Mauritius Union Insurance Co. Ltd & Anor [2004 SCJ 66], ABC Motors and Ors v. Ngan Hoy Khen Ngan Chee Wang & Ors [2008 SCJ 25a], and C. Marday & Ors v. B. Marday & Ors. [2008 SCJ 30]. The following principles stand out prominently therefrom:- (a) The Court should allow all such amendments as are necessary to enable the determination of the real question in controversy between the parties or to correct any defect or error in any proceedings (per Jenkins L. J. in G. L. Baker v. Medway Building & Supplies Ltd [1958 3 ALL E. R. 540, p. 546] referred to in Maxo Products v Swan Insurance [1996 MR 141]). (b) Even if such amendments have been made necessary because of the honest fault or mistake (therefore excluding bad faith) of the party making the motion for amendment, they should be allowed. The focus is on the fact that the Court is not here to punish parties for their mistakes in the conduct of their cases, but to decide cases in accordance with their rights. (c) However blameworthy (short of fraudulent or in bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late in the day the motion for amendment is made, it should, in general, be allowed, provided the amendment will not cause injustice to the other party. There is no injustice to the other party if he can be compensated by the appropriate order for wasted costs (per Bowen L. J. in Copper v. Smith (1883) 26 Ch. D. 700, pp. 710 – 711 referred to in the case of Maxo Products (supra)). (d) There is a distinction to be made between an amendment which would clarify the issues and one which is in the nature of a totally different defence from that pleaded to be raised by

amendment at the end of the trial, even on terms relating to an adjournment and as to the defendant paying the costs thrown away. (Ketteman v. Hansel Properties Ltd [1987 AC 189] referred to in the case of Soobhany v. Soobhany (supra)). (e) To allow an amendment before a trial begins is quite different from allowing it “at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence”. (Soobhany v. Soobhany (supra) referring to the case of Ketteman (supra). (f) “An amendment for the purpose of adding a plea of fraud is generally allowed at an early stage if the circumstances warrant it but it will only be allowed at a late stage in exceptional circumstances.” (Halsbury’s Laws of England 3rd edition volume 30 paragraph 72 – referred to in Maxo Products (supra)).

In the case of Tive Hive and Ors v. Kam Tim [1953 MR 80] the Supreme Court found that “An amendment which is substantial and raises new issues which are inconsistent with those found in a statement of claim will not be granted.”

In the case of Bhadain v. ICAC [2004 SCJ 33]- the court found that “an amendment will be refused or disallowed when if it were made, it would result in prejudice or injury which cannot be properly compensated by costs”

From the above, it follows that amendments to pleadings should normally be allowed so that the real issues in controversy are determined once and for all, however late and blameworthy might have been the party’s failure to plead the subject matter of a proposed amendment earlier and provided that no prejudice is caused to any one party when a motion for amendment is considered.

Analysis In the present case, the real issue in controversy concerns a concrete block wall belonging to the plaintiffs, which separates the property of the plaintiffs and that of the defendants. It has been averred in the plaint that the defendants have, without the consent and authorization of the plaintiffs and without any right, title or capacity, unlawfully and illegally, used the said wall to affix a metal gate, thus the initial prayers in the plaint. On the other hand the proposed amendments concern “a fence in metal and corrugated iron sheets next to the concrete block wall” which the defendants have, unlawfully and illegally, recently put up and for which the

plaintiffs are seeking a pulling down order from the court. After assessing the above and the submissions of both counsel, I find by making the proposed amendment to the plaint, the plaintiffs are indeed seeking to introduce a new cause of action that did not exist in their initial plaint.

Decision For all the reasons given above, I find that the proposed amendment should not be allowed. The motion of counsel for the plaintiffs is therefore set aside. With costs.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 27 February 2020