JUDGMENT

Abdul Hamid Omar Acting LP:

This appeal is against the decision of V.C. George J granting the respondents leave to amend the statement of claim after the expiration of the limitation period. The respondents had caused a writ accompanied by a statement of claim to be issued against the appellants on 8 October 1980. The matter relates to a claim in 1974. On 3 December 1984, the respondents took out 0.25 summons for directions seeking, inter alia, an amendment of the statement of claim to introduce a new cause of action, the nature of which is described by the learned Judge as follows:

The proposed amendment in effect amounted to the contention that the said refusal to credit the amounts debited to the plaintiffs' account with the defendant bank amounted to a conversion of the amounts, alternatively the amounts so debited are payable to the plaintiffs as moneys had and received by the defendants to the plaintiffs' use.

The Senior Assistant Registrar before whom the application was initially heard dismissed it. On appeal it was allowed by the learned Judge. Hence the appeal.

It is common ground that the application to amend was made after the expiry of the period of limitation current at the date of the issue of the writ. It is also common ground that the proposed amendment raises a new cause of action adding substantially a new relief. However, it is not in dispute that the new cause of action arose out of the same or substantially the same facts as the cause of action in respect of which relief had already been claimed.

The main thrust of the appellants' contention was that the amendment was substantial and controversial and that it gave rise to a new relief. As such the learned Judge ought not to have allowed it. Reference was made by counsel for the appellants in the course of his submission to O.20 r. 5, Rules of the High Court 1980 (RHC). It is also the appellants' contention although not strenuously argued that there was mala fide on the part of the respondents.

On the question of mala fide the learned Judge found that the appellants had failed to establish it. He went on to say that leave would be granted unless the granting of leave would do an injury to the appellants that cannot be compensated by costs or otherwise. He further said that the appellants were not able to show that the amendment per se would affect the presentation of their case. As for the appellants' submission that the amendment was substantial and controversial, the learned Judge observed that there was nothing in the rules to support such a submission.

At this point I should like to also refer to that part of the judgment where the learned Judge said that:

the plaintiffs have not by the purported re-amendments sought to introduce new facts. All that the purported amendments sought to do is to throw a different light on the effect of the same facts relied on in the original statement of claim. In my view all that the plaintiffs were seeking to do was to frame their case so that the trial of the action would lead to a decision of the real matter in controversy.

The learned Judge had, in my view, applied the correct test in determining the issue. The relevant law applicable is O. 20 r. 5, RHC. For convenience, they are set out hereunder:

5. (1) Subject to O. 15, rr. 6,7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) Where an application to the Court for leave to make the amendment mentioned in para. (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

(3) An amendment to correct the name of a party may be allowed under para. (2) notwiths