This is an appeal against the whole of the judgment of the High
Court handed down on 22 May 2013. This was a matter in which the court
granted the respondent leave to further amend its declaration.
The background to the matter may be summarised as follows:
On
6 July 2004, the respondent issued summons against the appellant and
Saturn Trading and Investments Limited (“Saturn Trading”) jointly and
severally and in solidum for payment of US$900,000 [Nine Hundred
Thousand United States Dollars]. The respondent alleged, that, this
amount represented overpayment of a loan advanced to Saturn Trading for
onward lending to third parties.
In terms of their alleged
agreement, the respondent purported that Saturn Trading would receive
repayments directly from the third parties concerned, and, if any
over-payment occurred, such would be refunded to the respondent.
Allegedly, in breach of the parties agreement, Saturn Trading failed to refund money which had been overpaid to it.
The
respondent then sued Saturn Trading in the High Court, claiming, in its
declaration, that, it had been unjustly enriched by the overpayment at
the respondent's expense. Further in that suit, the respondent sued the
appellant on the grounds that as director, agent, or alter ego of Saturn
Trading, he was fully aware of the transactions in question, and,
hence, had a duty of care towards the respondent. In breach of that
duty, the respondent charged that the appellant had carried out Saturn
Trading's business negligently, recklessly, fraudulently and without due
care resulting in the respondent suffering loss in the amount claimed.
It
is common cause that both Saturn Trading and the appellant defended the
suit, disputing the existence and terms of the alleged loan agreement,
the alleged over-payment, and any duty of care whatsoever towards the
respondent, on the part of the appellant.
At the pre-trial
conference which was held on 26 September 2006, the respondent obtained
leave, with the consent of the appellant, to amend its declaration by
the deletion of a certain paragraph and its substitution with another.
After
the pretrial conference, the matter was set down for trial on 29
January 2007, but, for reasons which are not apparent from the papers,
it was postponed sine die.
Some ten months later, on 30 November
2007, the respondent's legal practitioners wrote to the appellant's
legal practitioners requesting their consent to further amend its
declaration.
The appellant's legal practitioners did not accede to the request.
This
prompted the respondent to file an application for leave to amend its
declaration in terms of Order 20 Rule 132 of the High Court of Zimbabwe
Rules 1971. According to the respondent, this was in order to clarify
the existing causes of action.
The appellant opposed the
application on the basis, that, the amendment had come late in the day,
since it was being made four (4) years after the action was originally
instituted, and, as such, the new causes of action which the amendment
sought to bring had prescribed.
The court a quo granted the
respondent leave to amend its declaration, and any other pleadings which
they wished to have amended.
The appellant was aggrieved by this decision and filed this appeal.
Before
I turn to address the issues raised by the appeal, it is important to
note, that, in this appeal, the Court is being called upon to interfere
with the exercise of a discretion by the judge a quo.
The judge correctly stated as follows in this respect:
“In our law, granting or refusal of leave to amend is a matter entirely in the discretion of the court.”
That
the court has this discretion is evident in Rule 132 of Order 20 of the
High Court Rules. The Rule provides, that, the court may allow a party, at any stage of the proceedings, to amend his pleadings and that:
“..,
all such amendments shall be made as may be necessary for purposes of
determining the real question in controversy between the parties.”
While
Rule 132 of the High Court Rules is made subject to Rule 134, I do not
find the latter Rule to be applicable to the circumstances of this case,
since it specifically deals with an amendment to the pleadings that has
the effect of including or substituting a cause of action arising after the issue of summons.
This has not been claimed in casu.
This
court, however, has the power to interfere with the exercise of the
court a quo's discretion in appropriate circumstances, as aptly
explained as follows in HERBSTEIN & Van WINSEN, 5th ed…,.;
“The
court, on appeal, will interfere where the exercise of the discretion
has not been proper, or has been based upon a wrong principle, or upon a
wrong view of the facts; where the court has purported to exercise its
discretion without sufficient legal grounds for doing so….,.”
See also Barrows & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.
The
appellant contends, that, the court a quo improperly exercised its
discretion in granting the respondent leave to amend its declaration.
This is because, he further contends, the court relied not only on wrong
principles of the law, it also failed to take into account a crucial
and relevant factor, that is, the issue of prescription.
As is
evident from the appellant's grounds of appeal, the two issues on the
basis of which it is alleged that the court a quo improperly excercised
its discretion relate to the question of whether or not the proposed
amendment raised new causes of action, and, if so, whether, in the
circumstances of the case, the new causes of action had prescribed.
Whether or not the amendment brings about new causes of action
Counsel
for the appellant argued, that, the court a quo should not have granted
leave to amend the declaration for the reason that the amendment has
the effect of introducing unjust enrichment, fraudulent
misrepresentation, and theft, as new causes of action.
Counsel
for the respondent, on the other hand, contends that leave to amend was
correctly granted by the court a quo in terms of Rule 132 of the High
Court Rules, which permits amendments in respect of any cause of action.
Despite
his initial submission that all the allegations had been pleaded in the
original declaration and that the amendment merely sought to clarify
these allegations, counsel for the respondent, during the hearing,
conceded that theft was indeed sought to be introduced as a new cause of
action.
