[1951] EACA 1

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR GRAHAM PAUL, C. J. (Tanganyika), and LOCKHART-SMITH. J. of A.

## ALLAH DITTA QURESHI, Appellant (Original Plaintiff) $\mathbf{v}$

## C. T. PATEL, Respondent (Original Defendant)

Civil Appeal No. 30 of 1950

(Appeal from decision of H. M. Supreme Court of Kenya—Thacker, J.)

Application to join party by plaintiff after defence closed—Refusal by trial Judge—Judicial discretion—Costs—Plaintiff not aggrieved by order under Rule 44 Supreme Court Rules.

Plaintiff a tenant in common with his brother of a plot of land sued alone for recovery of rent thereof without pleading co-ownership. The question of ownership was raised in the defence and at trial the plaintiff admitted the coownership. The defence called no evidence and argued that the action was bad for non-joinder. After defence had closed plaintiff's advocate applied for leave to amend Plaint by joining the plaintiff's brother. The application was refused and the action dismissed with costs—the learned Judge making an order, under Order I, Rule 44 of the Supreme Court Rules, Kenya, directing the advocate to pay to his client the costs incurred.

Held (29-1-51).—(1) In refusing leave to amend the Judge exercised his discretion judicially, under Order I, Rule 9, Kenya Civil Procedure Rules, was a rule of procedure and did not affect substantive law.

(2) The appellant was not aggrieved by the Judge's order under rule 44 of the Supreme Court Rules.

Appeal dismissed.

Trivedi for appellant.

Nowrojee for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This is an appeal against an order and judgment given in the Supreme Court of Kenya under the following circumstances. The plaintiff-appellant, Allah Ditta Qureshi, brought an action for recovery of rent in respect of a plot of land situate in Sclater's Road, Nairobi, in which he held a half interest together with his brother Abdur Rehman Quershi. The fact that he was not the sole owner of the plot was not stated in the plaint but it was raised in the defence and when the plaintiff came to give evidence at the trial he frankly admitted it. The defence called no evidence and took its stand on the point that the action was bad on account of nonjoinder. After the close of the defence the plaintiff's advocate asked for leave to amend the plaint by adding the name of the plaintiff's brother, a course of action which up to that time he had studiously avoided taking in spite of the fact that this defect in the plaint was clearly taken in the written defence. The learned trial Judge refused leave to amend and dismissed the action with costs. The ground for the learned Judge's refusal was that the application to amend came at such a late stage as to make it undesirable that it should be granted. The sole point for determination on this appeal is whether in refusing leave to amend

on this ground the learned Judge exercised his discretion unjudicially. I am quite unable to see how it can be seriously contended that this is the case. It was clearly established by the appellant's own evidence that he held the plot as a tenant in common with his brother and this being so it is clear that his brother was a necessary party to the action. That would be so in English law and the same position is enforced in Kenya by section 45 of the Indian Contract Act, which is an applied Act to the Colony of Kenya. It matters not at all that as a matter of convenience the tenant of the two brothers in this case did pay the rent every month to one of them only.

Appellant's counsel has relied on Order 1, Rule 9, of the Kenya Civil Procedure Rules which states that "no suit shall be defeated by reason of the misjoinder or non-joinder of parties". As Mulla observes, however, at p. 468 of his Commentary (10th Edition) on the corresponding Indian Rule (Order 1, rule 9) "This rule is a rule of procedure which does not affect the substantive law". In the case now before us the plaintiff's brother was a necessary party who ought to have joined and the action, as constituted, was unmaintainable, unless the Court in its discretion consented to an amendment of the plaint under Order 1, rule 10 (2). That the learned Judge might have allowed an amendment even after the close of the evidence on both sides is clear for the rule provides that amendment may be made "at any stage of the proceedings". I can find no authority, however, for the proposition which has been urged on us that the Judge in refusing to amend on the ground of the lateness of the application was taking something into account which he was not entitled to do. On the contrary there is an Indian case cited by Mulla at p. 468 (10th edition) the report of which is not available where it appears to have been held that if a plaintiff in spit of objection raised persists in the suit without joining the absent parties the suit will be dismissed. (Kantichandra v. Radhu Rahman 127 I. C. 59 (1930).) That is precisely the position in the present case. The objection was taken at the earliest moment by the defence, but the plaintiff's advocate failed to take any action to amend the plaint because he believed, mistakenly, that the plaintiff's brother was not a necessary party to the suit. It was only when the eleventh hour was passed that he realized his mistake and made application to the Judge. I am not surprised that under these circumstances the learned trial Judge came to the conclusion that the fairest course was to dismiss the suit and so make the plaintiff start over again with his brother joined as co-plaintiff. Indeed had he accepted the plaintiff's application the result would have been much the same. In order to emphasize the erroneous course pursued by the plaintiff's advocate the learned Judge then made an order under rule 44 of the Supreme Court Rules directing the advocate concerned to pay to his client the costs incurred. The appellant has not been aggrieved by this order and an appeal against it should not have been included in the present grounds of appeal.

The appeal is dismissed with costs to the respondent.

SIR GRAHAM PAUL, C. J. (Tanganyika).—The appellant in this appeal was the plaintiff in the Court below. He claimed payment of certain money as rent due from the respondent as his tenant. The respondent as defendant pleaded, and the evidence established, that the rent could not be due to the appellant alone, he and his brother being tenants in common of the property in respect of which the rent was claimed. The brother was clearly a necessary party.

In that state of affairs the appellant's advocate in his final address at the trial did what he ought to have done at latest whenever the written statement of defence was filed, namely he applied to amend his claim and to add his brother as a co-plaintiff. $\frac{1}{2}$

Much of the time of this Court was wasted by appellant's advocate's argument that the learned Judge in the Court below had the power to grant such an amendment at that stage of the proceedings. That question really did not arise. Neither the learned Judge nor anyone else suggested that there was no power to grant the application for amendment when it was made. The Court, of course, had a discretion to grant the amendment and the only question in this case is whether in refusing the application the learned Judge was exercising his discretion judicially. On that question as it seems to me we have had singularly little assistance from appellant's advocate but it is not a difficult question.

The learned Judge had two alternatives, either to dismiss the claim with costs to the defendant as in fact he did, or to allow the plaintiff an opportunity to amend and let the suit continue. If the learned Judge had taken the latter instead of the former course, he would have had to order completely fresh pleadings and a new trial, the defendant being entitled to costs. There was therefore in the result very little difference between the two alternatives open to the learned Judge—only a small sum of costs, the fees on the summons. Where that is the position I think an Appeal Court ought not readily to interfere with the discretion of the trial Judge in choosing one alternative rather than the other. There is no suggestion that the plaintiff is being deprived of his rights. With his brother he can take a fresh action in the proper way if so advised and it does not seem to me that he has any grounds of complaint.

The learned Judge ordered that the appellant's solicitor should pay the costs occasioned by his mistake in so wrongly advising his client. If aggrieved by that order the solicitor could have taken steps to come to this Court but he has not done so, and he is not before us, so I do not see how we can deal with that $\mathcal{L} = \mathcal{L} \times \mathcal{L} \times \mathcal{L}$ $\mathcal{L}_{\mathcal{A}}(x) = \mathcal{L}_{\mathcal{A}}(x)$ order in this appeal. $\cdot$ $\mathcal{L}_{\mathcal{L}}$

I would dismiss the appeal with costs to the respondent.

LOCKHART-SMITH, J. of A.-I have had the advantage of reading the judgments which have been delivered by my learned brethren. I concur, and have nothing to add.

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