Opposed
Application
MUREMBA
J:
This
is an application for the amendment of the plea filed in HC9063/14 in
which the applicants herein are the defendants and the respondent is
the plaintiff. In addition the applicants are applying for the
substitution of the defendants summary of evidence with revised
summaries of evidence.
In
his founding affidavit the first applicant explained what happened in
the matter and the defence he gave when he instructed his then legal
practitioner, the now late Mr Carr of Coghlan, Welsh and Guest who in
turn briefed an advocate to draw a plea which was then filed with
this court.
He
averred that the respondent entered into an agreement of sale for the
purchase of a farm from one D.A Hartman, which sale was being
negotiated by Fox and Carney Estates Agents. Adele Rowe, a property
negotiator employed by Fox and Carney approached him on behalf of D.A
Hartman and asked him to be the custodian of funds D.A Hartman was
receiving from the sale of the property. Since the first applicant
knew D.A Hartman he agreed and he was told that the respondent would
be bringing the funds to his office, which he did.
At
that time the first applicant was running a business, Inamo
Investments (Pvt) Ltd, which was sharing premises with the second
applicant at 9 Birchenough Road, Alexandra Park, Harare.
The
first applicant averred that he is also a non-executive director of
the second applicant. The first applicant averred that the respondent
paid US$149,000 to him and was given a signed slip by a Ms Hook who
works for Inamo Investments (Pvt) Ltd as an acknowledgment of receipt
of the money paid.
The
first applicant averred that in receiving the money he acted as D.A
Hartman's agent and he subsequently transferred the funds to Mr
Hartman in New Zealand on Ms Rowe's instructions.
He
further averred that although the respondent had promised to make
further payment in terms of his contract with Mr Hartman which he
(the first applicant) was not privy to, he never made further
payments.
The
first applicant averred that the second respondent was never involved
in this transaction as the agent of Mr Hartman and it had no
knowledge of the transaction at all.
He
further averred that when a letter of demand was written to the
second applicant by the respondent's legal practitioners for the
refund of the money after the sale agreement had been called off
between the respondent and Mr Hartman, the second applicant's
Finance and Operations Director, Mr Cocksedge asked him if he knew
anything about this money to which he explained that this was a
matter which involved himself personally and had nothing to do with
the second applicant.
This
formed the second applicant's reply to the demand, which reply was
to the effect that the second applicant knew nothing about the
matter.
The
first applicant contended that when the respondent then sued him and
the second applicant in 2014 for the refund of the money he went to
see his lawyer, Mr Carr of Coghlan, Welsh and Guest.
When
he instructed Mr Carr, Mr. Carr was already unwell and from this time
onwards his health declined and he was often away from his offices
and difficult to communicate with.
He
eventually died at the end of June 2017.
The
first applicant averred that as a result he never received copies of
the defendant's plea, the round table pre-trial conference minute
and the defendant's summary of evidence.
He
averred that the first time he saw these papers was in August 2017
when he was advised of the trial set down date which was 11 September
2017 upon attending the offices of Mr. Lane-Mitchell of Coghlan,
Welsh and Guest who had taken over the handling of the case.
On
seeing the plea, he immediately noticed and highlighted some
inaccuracies in it because it did not correctly reflect either his or
the second defendant's defence.
On
that very day of 10 August 2017, their new legal practitioner, Mr.
Lane-Mitchell filed and served a notice to amend their plea and the
first applicant's revised summary of evidence, but the respondent
refused to consent to the amendments thereby prompting the applicants
to file the present application.
The
first applicant averred that the plea in HC9063/14 needs to be
amended because it does not reflect the correct position or properly
define the dispute between the parties. In short the first applicant
averred that this is a dispute solely between himself and the
respondent and does not involve the second applicant as is wrongly
reflected in the plea filed in HC9063/14.
The
applicant averred that the application to amend the defendants plea
and to amend the summary of evidence is a bona
fide
application which was timeously made in the circumstances. He averred
that there was a monumental misunderstanding between himself and his
former legal practitioner which he is now unfortunately unavailable
to explain.
Russell
Grant Cocksedge, the second applicant's General Manager and
Financial and Operations Director deposed to the founding affidavit
on behalf of the second applicant.
He
averred that the first time the second applicant became aware of this
matter was when it received the respondent's letter of demand for
the refund of the US$149,000.00 on 12 November 2012.
On
receipt of this letter, Mr Cocksedge contended that he made enquiries
with the second applicant's directors if any had any knowledge of
the respondent and his claim to which the first applicant said that
the claim involved himself personally and had nothing to do with the
second applicant.
Mr
Cocksedge averred that he then responded to the demand on 16 November
2012 denying that the second applicant had any liability in respect
of the alleged claim.
He
attached the letter in question as annexure H.
Mr
Cocksedge averred that on 15 January 2013 he received an email from
the respondent's then legal practitioners Muzangaza Mandaza &
Tomana repeating the same demand to which he replied again by way of
a letter dated 17 January 2013 advising that the second applicant had
nothing to do with the respondent's claim, had not received any
funds from the respondent and advised the respondent to make any
alleged claim he had against the first applicant.
He
attached his second letter as annexure J.
Mr
Cocksedge contended that in October 2014 the respondent issued
summons against both the first and the second applicants claiming a
refund of the said money.
Together
with the first applicant, they met with the now late Mr Carr.
His
averments were the same as those of the first applicant about what
happened in respect of the instructions that were given to the late
Mr Carr about the two applicants defences.
He
averred that it was explained that the second applicant knew nothing
about the claim and Mr Carr was provided with copies of
correspondence attached as annexures H and J to the opposing
affidavit.
Mr
Carr went on to instruct an advocate to draw a plea which plea they
later discovered to be inaccurate.
He
averred that he was unable to explain why there was a
misunderstanding by Mr Carr of the second defendant's defence. He
averred that in the absence of Mr Carr this anomaly cannot be
explained.
Andrew
Paul Lane Mitchell a legal practitioner of 30 years standing and in
practice under Coghlan, Welsh and Guest which firm represents both
applicants in this matter filed a supporting affidavit to the
applicants application.
He
averred that Mr Carr a legal practitioner of 30 years experience by
the time of his death was a conscientious and ethical practitioner
who held himself to a high standard. He had the conduct of the main
matter from inception until his demise. In the last years of his
life, Mr Carr faced chronic health challenges that occasionally
affected his fitness and availability for work in the office. It was
only after his death that Andrew Paul Lane-Mitchell took over the
main matter.
Andrew
Paul Lane–Mitchell averred that on reading the file he noted that
the respondent had initially filed a claim against the first
applicant and Ms Rowe. Mr Carr instructed an advocate who drew a
special plea and an exception. The respondent reacted by withdrawing
that claim. The respondent then brought a further claim against the
two applicants. Mr Carr
instructed
an advocate who drew an exception to that claim also. This was upheld
and the claim was struck out. It was only on his third attempt that
the respondent filed a claim to which the applicants were able to
plead.
Andrew
Paul Lane-Mitchell averred that he noted from the file that he
inherited that Mr Carr instructed an advocate to draw a plea on the
terms appearing from the plea filed in HC9063/14. Andrew Paul
Lane-Mitchell averred that the correspondence now annexed to the
present application by the second applicant was omitted from the
advocate's brief. As to the reason why the correspondence was
omitted, Andrew Paul Lane-Mitchell averred that he could not comment.
Andrew
Paul Lane-Mitchell averred that the matter proceeded through
pre-trial before Mr Carr's death, but was only set down for trial
thereafter. This was around the time he took over the matter.
In
order to brief the advocate for trial, Andrew Paul Lane-Mitchell
averred that he met with the first applicant and the second
applicant's deponent in order to record witness statements and
prepare them for trial. He averred that it was in the process that he
noted that their instructions were at odds with the plea. He showed
them the plea and sought an explanation, but they were unable to give
one because they were convinced they had made themselves clear in
their instructions to Mr Carr.
Andrew
Paul Lane-Mitchell averred that in light of this unusual development,
he briefed the advocate who had drawn the plea. The advocate too, was
unable to explain the anomaly. He had never discussed the matter with
the first applicant or Mr Cocksedge and so knew even less than Andrew
Paul Lane-Mitchell.
Andrew
Paul Lane-Mitchell
averred
that the pleadings do not reflect the full reality of the applicants
defence and ought to be amended.
He
averred that the source of Mr Carr's error remains mysterious and
it is that error that accounts for the applicants plea not reflecting
the facts of the matter.
He
averred that it is on that basis that the applicants seek to amend
their pleas.
In
his opposing affidavit, the respondent contended that this
application was but a petition to withdraw admissions.
He
averred that the petition was inordinately late, mala-fide,
irregular at law and ought to be dismissed with costs on a higher
scale.
He
averred that the applicants had not satisfactorily explained why they
entered the confessionary plea which they now sought to resile from.
He
averred that the plea was made under the hand of their legal
practitioners, a circumstance which demonstrates that the said plea
was settled for after the provision of legal advice.
He
averred that it is quite incredible for anyone to believe that the
applicants did not review or enquire about any of the pleadings filed
on their behalf from the day they gave instructions in 2014 up to the
eve of the trial in August 2017.
He
averred that this demonstrates a lack of diligence or care that
cannot inspire this court to grant leave to amend the alleged
erroneous pleading.
The
respondent averred that the inordinate delay and the lack of any
cogent explanation for such delay lead to the conclusion that this
application is mala
fide.
He
further averred that he finds it difficult to accept that the late Mr
Carr
such
a well-regarded, experienced and respected legal practitioner could
have made a manifestly rudimentary error in filing a plea totally
divorced from his instructions and thereafter concoct facts and file
a summary of evidence not in keeping with anything he was told by his
clients.
The
respondent averred that the applicants having attended the pre-trial
conference, he found it laughable that the applicants now seek to
feign ignorance of their own plea and summary of evidence.
He
averred that if there was any error such would have been realised by
any diligent litigant much earlier or at the very least during the
pre-trial conference.
The
respondent averred that the only reasonable conclusion is that the
applicants position was untenable to their late legal practitioner
who then rightly made confessions and admissions which the applicants
now seek to depart from.
The
respondent averred that the present application is mala-fide
having been brought at the eve of trial and seeking to raise issues
that have always been in the knowledge of the applicants and long
abandoned through their plea and pre-trial conference issues filed of
record.
The
respondent averred that the applicants have since realised that they
filed a confessionary plea and now seek to foist the blame on a
departed practitioner whom the court cannot interrogate.
He
further contended that admissions were well made and cannot now be
avoided in a manner that is so prejudicial to him. He further averred
that the applicant's pre-trial papers again affirmed the admissions
that the applicants now seek to disassociate themselves from. The
respondent contended that he will suffer immeasurable prejudice if
leave to withdraw is granted as once the admissions were made, and
repeated by the applicants in subsequent pleadings, he was by
operation of law excused from having to prove the same.
The
respondent averred that the applicants are seeking to recast their
whole defence and recommence proceedings afresh.
The
respondent averred that the inordinate delay in motivating the
amendment apart from activating great legal costs to him, it had also
exposed him to the dangers of prescription.
He
further averred that had the applicants petitioned timeously, a
proper investigation into the filing of the erroneous plea would have
been carried out before Mr Carr's demise.
The
respondent averred that what is even more curios is the fact that the
applicants have not even tendered costs which is a clear indication
of their attitude of disdain to his plight and the obvious
difficulties they introduced by their late request at amendment.
However,
it must be noted that the respondent did not mention in his opposing
affidavit what admission the applicants had made. The admission was
only disclosed in the heads of argument by his counsel.
In
response to the respondent's opposition, the applicants had their
legal practitioner, Andrew Paul Lane-Mitchell depose to their
answering affidavit for the reason that the respondent had presented
extensive argument rather than fact and the response to many of his
averments turns largely on matters of law, legal practice and
pleading.
Andrew
Paul Lane-Mitchell contended that the application is not for the
withdrawal of admissions, but for the amendment of the plea and the
substitution of the summary of evidence.
He
averred that the first paragraph of the original plea filed for the
applicants states that they “deny each allegation of fact made and
each conclusion of law urged in the plaintiff's amended
declaration.”
Andrew
Paul Lane-Mitchell contended that the respondent's repeated
reference to the plea making admissions is therefore incorrect.
He
averred that from his experience as a legal practitioner it is normal
for litigants, being untrained in the law, to rely on the advice of
their attorneys and accept assurances that pleadings have been filed
in accordance with their instructions and in a timely manner.
He
further averred that in all previous litigation between the parties
and for the first two years or so, no plea was filed because the
respondent's declaration did not disclose a cause of action and as
such those proceedings are irrelevant.
Andrew
Paul Lane-Mitchell contended that the proposed amendments do not
change the issues as framed at the pre-trial conference. The
pre-trial conference therefore would not have highlighted the error,
because the outcome was consistent with their understanding of the
matter.
Andrew
Paul Lane–Mitchell contended that the original plea is not
concessionary.
He
averred that the proposed amendment was initiated immediately the
applicants became aware of the anomaly.
He
further contended that the proposed amendment will not alter the
issues but seeks to lay before the court an accurate outline of the
facts that the applicants will seek to prove.
He
averred that the original plea does not reflect reality and the
summary of evidence does not state what the witnesses will testify.
He
contended that this ought to be corrected if the pleadings are to
serve their function.
He
averred that the original plea merely fails to record accurately
certain aspects of the applicants defence.
He
averred that in the case of the second applicant, the essence of its
defence has been known to the respondent since 2012 when the
correspondence between the parties began.
No
new issues would arise from the amended plea. There is no prejudice
to the respondent. The respondent only served summons days before his
claim would have prescribed.
The
contention that the amendment will somehow alter this position is
incorrect in both fact and law.
Andrew
Paul Lane-Mitchell averred that the applicants acted as soon as they
discovered the need to do so. He averred that the demise of Mr Carr
is a circumstance which was entirely outside anybody's control. He
averred that any costs incurred or which have been occasioned arose
from the respondent's decision to resist the amendment for no
apparent reason.
The
position of the law with regards to amendment of pleadings in general
is as follows. In terms of Order 20 Rule 132 of the High Court Rules,
1971:
“failing
consent by all parties, the court or a judge may, at any stage of the
proceedings, allow either party to alter or amend his pleadings in
such manner and on such terms as may be just, and all such amendment
shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties.”
The
Rule means that amendments can be made before close of pleadings,
after close of pleadings, during the hearing of evidence, after the
hearing of evidence, but not after judgment: see Herbstein & Van
Winsen The
Civil Practice of the High Courts of South Africa 5th
ed vol 1 p675.
The
main aim and object in allowing an amendment to pleadings is to do
justice to the parties by deciding the real issues between them.
In
Whittaker v Ross & Anor 1911 TPD 1092 at 1102-3 it was held that;
“This
court has the greatest latitude in granting amendments and it is very
necessary that it should have. The object of the court is to do
justice between the parties. It is not a game we are playing, in
which, if some mistake is made the forfeit is claimed. We are here
for the purpose of seeing that we have a true account of what
actually took place, and we are not going to give a decision upon
what we know to be wrong facts.”
What
it means is that amendments will always be allowed unless the
amendment is mala
fide
(made in bad faith) or unless the amendment will cause injustice to
the other side which cannot be cured by an appropriate order for
costs.
The
mistake or neglect of the parties in the process of placing the
issues before the court and on record will not stand in the way
unless the prejudice caused to the other party cannot be compensated
for in an award of costs.
Even
where a litigant has delayed in bringing forward his amendment, the
delay in itself, in the absence of prejudice to his opponent which
cannot be cured by payment of costs, does not justify refusing the
amendment.
The
court has discretion to condone any delay that is sufficiently
explained. See Angelique
Enterprises (Pvt) Ltd v Albco (Pvt) Ltd
1990
(1) ZLR 6 (H). See also Butau
v Butau
2011
(2) ZLR 74 (H) at 76G–77B.
The
application to amend should only be refused if the amendment is not
objectively necessary or if the amendment would cause the respondent
some sort of prejudice. See Chikadaya
v Chikadaya & Anor
2001 (1) ZLR 421 (S) at 425A-B.
An
amendment to pleadings cannot therefore be granted for the mere
asking.
With
amendments involving the withdrawal of admissions in pleadings, the
position of the law is somewhat different.
An
admission is a voluntary concession of fact that is made by a party
that concedes any element of a claim or defence. Its effect is to
determine the issue conclusively and to dispense entirely with the
need for further evidence. It narrows or eliminates issues.
Once
an admission is made it has serious consequences which ought not to
be undone without a cogent and acceptable explanation. This is
because an admission in a plea is conclusive and renders it
unnecessary for the other party to adduce evidence to prove the
admitted fact. It also renders it incompetent for the party making it
to adduce evidence to contradict it. See DP
Transport (Pvt) Ltd v Abbot
1988
(2) ZLR 92 (SC) and Copper
Trading Co (Pvt) Ltd v City of Bulawayo
1992 (1) ZLR 134 (S) at p144G.
In
President
– Varsekeringsmaats Kappy Bpk v Moodley
1964 (4) SA 109 (T) (at page 110H -111A) it was held that;
“An
amendment that involves the withdrawal of an admission is treated
somewhat differently in the sense that it is usually more difficult
to achieve because:
(i)
it involves a change of front which requires full explanation to
convince the court of the bona
fides
thereof; and
(ii)
it is more likely to prejudice the other party, who had by the
admission been led to believe that he need not prove the relevant
fact and might, for that reason, have omitted to gather the necessary
evidence.”
Herbstein
and Van Winsen in The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa
5th
ed at p685 say the following about amendments involving the
withdrawal of admissions:
“Where
a proposed amendment involves the withdrawal of an admission, the
court will generally require a satisfactory explanation of the
circumstances in which the admission was made and the reasons for
seeking to withdraw it. In addition the court must consider the
question of prejudice to the other party. If the result of allowing
the admission to be withdrawn is to cause prejudice or injustice to
the other party to the extent that a special order as to costs will
not compensate him then the application to amend will be refused.”
This
type of amendment cannot therefore be treated as an ordinary
amendment designed to bring to the fore the real dispute between the
parties.
Before
granting an amendment to such a pleading the court requires a
satisfactory explanation of both the circumstances in which the
admission was made and the reasons why a withdrawal of it is being
sought.
The
onus rests on the applicant to prove the bona
fides
of the withdrawal.
He
or she must give a satisfactory explanation for the intention to
withdraw the admission of fact. The application must therefore be
properly motivated and justified. In the absence of any acceptable
motivation and justification the assumption is that the attempt to
withdraw the admission is
mala fide.
The
court has discretion to allow an admission to be withdrawn, for
example, where the admission is clearly contrary to the facts. In
such a situation an injustice will result from adherence to the
admission. See Chimutanda
Motor Spares (Pvt) Ltd v Musare & Anor
1994
(1) ZLR 310 (H).
The
fact that the amendment might lead to the defeat of the other party
is not the kind of prejudice which should weigh with the court: see
Copper
Trading Co. (Pvt) Ltd v City of Bulawayo
1997
(1) ZLR 134 (S).
In
casu,
in suing the applicants, the respondent averred in its amended
declaration that he entered into an agreement with the second
applicant in terms of which he deposited the sum of US$149,000.00
with the second applicant. He averred that he paid the money through
the first applicant who represented the second applicant for the
second applicant to hold the funds in trust for him.
In
the plea that Mr Carr caused to be drawn the applicants state in the
first paragraph that:
“Save
for the identity of the parties set out in paras 1, 2 and 3 of the
amended declaration, the defendants deny each allegation of fact made
and each conclusion of law urged in the plaintiff's amended
declaration.”
In
the succeeding paragraphs the plea narrates what happened in the
matter by explaining that the respondent purchased a farm from Daniel
Hartman and that it was a term of the agreement that the respondent
would pay to the second applicant, (the second applicant acting only
as an agent of the said Hartman) the sum of US$149,000 in part
payment of the purchase price of the farm.
It
was averred that the first applicant acted only as an officer of the
second applicant.
It
was Mr Zhuwarara's
argument that in the plea the second applicant made an admission that
it was acting as an agent of the person from whom the respondent was
buying an immovable property.
The
respondent contended that this is a confessionary plea which lends
credence to the respondent's contentions that the second applicant
is liable to answer the claim and it confirms the respondent's
cause.
Mr
Zhuwarara
argued
that once an admission was made that the second applicant was acting
as the agent of the seller, the respondent then did not need to
gather any information in proof of its assertion that the second
applicant was directly involved in the transaction that gives birth
to the claim.
He
further argued that the attempt at withdrawing this admission
prejudices the respondent in a manner that cannot be compensated by
an order for costs.
Looking
at the amended declaration the applicants pleaded to, it can be said
that the
whilst
the second applicant do not make an admission to liability, it
admitted to having been involved in the transaction.
It
admitted to having received the money albeit on behalf of a third
party, Daniel Hartman. The first applicant also admitted to having
acted as a representative of the second applicant. In light of this
admission, the respondent had no need to lead evidence to prove that
the second applicant was directly involved in the transaction
involving the payment of the money in question.
However,
despite this admission, I will allow the applicants to amend their
plea for the following reasons:
The
applicants gave a satisfactory explanation for the circumstances in
which the admission was made and why they are seeking to withdraw it.
They explained that there must have been a misunderstanding by Mr
Carr when he took instructions, because the plea is not a correct
reflection of their instructions to him.
Mr
Carr being no longer available to explain what happened, the
applicants averments remain unchallenged.
The
applicants contended that they brought the inaccuracies in the plea
to the attention of their new legal practitioner as soon as they saw
the plea as the parties were now preparing for trial about a month
before trial commenced.
The
respondent did not adduce any evidence to rebut this.
Even
if it is said that the applicants were negligent in that they did not
get to know the contents of their plea until after the pre-trial
conference and at the time the trial was about to commence, that
alone cannot be justification or reason to deny them the amendment
they are seeking.
The
correspondence which Mr Cocksedge wrote to the respondent's
erstwhile legal practitioners as far back as 2012 and 2013 denying
the second applicant's knowledge of the respondent, his claim and
transacting with him is consistent with the amendment the applicants
now seek to make.
The
applicants said this has always been the true position of what
transpired.
They
said that they could not explain how the now late Mr Carr got it
wrong when he took instructions from them.
The
applicants stated that in seeking an amendment, they want an accurate
outline of their defence placed before the court since this is what
their witnesses will testify to.
For
the court to do justice between the parties, it is only proper to
allow the applicants to place before it a true account of what they
say actually took place.
To
a greater extent what they are saying is what happened is
corroborated by the correspondence they have attached to their
application. They cannot be punished for a misunderstanding which
they say happened with their then legal practitioner who is now late.
There is no basis for saying that they are lying about the
misunderstanding because the correspondence they wrote to the
respondent's erstwhile legal practitioners in 2012 and 2013
vindicates them.
Consequently,
their application to amend the original plea cannot be said to be
mala
fide.
The
application is properly motivated and justified. The amendment will
enable the court to decide the real issues between the parties.
The
delay in bringing the application to amend i.e. about a month before
trial commenced, after the pleadings had been closed and after the
pre-trial conference had been held was sufficiently explained by the
applicants.
They
stated that that was the first time they noticed the inaccuracies in
the plea and it was after the demise of their then legal
practitioner.
There
is nothing incredible about this explanation because as Andrew Paul
Lane–Mitchell contended, it is normal for litigants being untrained
in the law to rely on the advice of their lawyers and accept
assurances that pleadings have been filed in accordance with their
instructions.
A
sufficient explanation warranting this court to condone the delay was
therefore given.
Mr
Zhuwarara
argued that if the amendment is allowed the respondent will now be
forced to recast his witness testimony and to gather evidence that
may very well be inaccessible to him due to passage of time.
This
cannot be true.
I
say this because the respondent averred in his amended declaration
that it is him who entered into the contract with the second
applicant as it was being represented by the first applicant. Since
the person who entered into the agreement is the respondent himself,
the evidence about the contract is readily available to the
respondent. There is no other evidence he needs to gather.
The
complexion of the case will not change much because all the
respondent needs to show is that he contracted with the second
applicant as he averred in his amended declaration.
In
the original plea the second applicant never admitted that it had
contracted with him. It averred that it only acted as an agent of D.A
Hartman.
So
even if the trial was to proceed on the basis of the original plea,
the respondent would still need to adduce evidence to show that he
contracted with the second applicant being represented by the first
applicant and that the second applicant was the principal party and
not an agent.
The
amendment will therefore not change anything in respect of the
evidence the respondent ought to lead in order to prove his case or
claim against the applicants.
The
amendment will not cause any prejudice to the respondent because once
he proves that it contracted with the second applicant, then it will
automatically follow that the first applicant acted in the whole
transaction as the second applicant's representative and not as the
agent of D.A Hartman.
In
light of the foregoing, I will allow the applicants to amend their
plea in HC9063/14.
In
respect of amendments to the summaries of evidence, the law does not
require an application to amend to be made. This is because a summary
of evidence is not a pleading. All that the party needs to do is to
file a supplementary summary of evidence.
I
will order the applicants to pay the respondent's costs occasioned
by the amendment because the respondent has been unnecessarily put
out of pocket by their house not being in order.
In
the result it is ordered that:
1.
The defendants plea in case no. HC9063/14 is amended in terms of
first defendant's amended plea and in terms of second defendant's
amended plea filed together with the notice to amend defendants plea
on 10 August 2017.
2.
The plaintiff in HC9063/14 shall file his replication within 10 days
of this order.
3.
Thereafter the proceedings in the matter shall follow the rules of
procedure of this court.
4.
The applicants in the present application shall meet the respondent's
costs occasioned by the amendment.
Coghlan,
Welsh & Guest,
applicants legal practitioners
Scanlen
& Holderness,
respondent's
legal practitioners
