KOFI ATTA VRS OSONS CHEMIST LTD. & 2 ORS. (C1/135/08) [2023] GHACC 1036 (28 February 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 28TH DAY OF FEBRUARY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. SUIT No: C1/135/08 KOFI ATTA PLAINTIFF/APPLICANT V 1. OSONS CHEMIST LTD DEFENDANTS/RESPONDENTS 2. NII GYASE OF WEIJA 3. JAMES TOWN TRAD. COUNCIL RULING On the 19/01/2023, the Plaintiff/Applicant, filed a motion before the court for an order to amend the writ of summons and statement of claim. The said application was served on Counsel for the 1st Defendant as well as Counsel for the 2nd and 3rd Defendants. On the 25th of January 2023, the 1st Defendant/Respondent filed an affidavit in opposition to the Motion. On 27th of January 2023 the 2nd and 3rd Defendants also filed their affidavit in opposition to the application. On the 31st January 2023, Plaintiff/Applicant filed a supplementary affidavit in support of the application and denied the depositions of the 1st Defendant/Respondent and stated in paragraph 7 of the supplementary affidavit in support that the various depositions are vehemently denied and do not reflect the true intentions of the applicant. The applicant concluded the supplementary affidavit by saying that the paragraph of the 1st Defendant/Respondent only constitute an avenue by which the 1st Respondent seeks to pollute the entire issues with vexatious matters and attempt to stifle applicant’s right of bringing his entire case before the court for a final and effective determination of the matter. On the Tuesday 14th of February 2023, counsel for the applicant moved the motion and relied on the motion paper, the supporting affidavit and the supplementary affidavit and the exhibit attached which was the proposed amended writ and amended statement of claim. Counsel in his submission said they are coming under order 16 (5) of CI 47. Counsel referred the court to the case of Yeboah & Anor v Bofour (1971) 2 GLR 199 and indicated the factors that guides the court in exercising the discretion of the court. The Counsel also referred the court to the case of Adjeley v Sowah (1966) GLR 74 which cited the English case of Tildesley v Happer (1878) 10 Ch. D 393 at pp 396-397, C. A. Counsel submitted further that they are amending their witness statement and statement of claim and have substituted some of the paragraphs, expanded some and also expanded the reliefs originally filed. Counsel said it is their submission that once this application is granted others have automatic right to amend their pleadings consequently it goes to affirm the fact that no injury will be caused the other party and if any at all same can be compensated with cost. Counsel said further that he has seen the two affidavits in opposition, one filed by the 1st Defendant and the other by the 2nd and 3rd Defendants and said they are essentially saying the same thing. Counsel said the 1st Defendant is alluding to the fact that they cannot plead matters for which they are not seeking any relief and said their simple response to that position they believe is borne out of the provision of order 16 and that is why they are not only seeking to amend the paragraph but the reliefs as well. Counsel responding to 2nd and 3rd Defendants stated that 2nd and 3rd Defendants in expanding that particular point also states that they cannot amend a relief they originally found the case. Counsel for the applicant said again the simple response is that there is no law or statutes that bar the exercise of the court’s discretion in respect of that particular point or as that particular point is concerned. Counsel stated further that the opposition also seeks to suggest that we are abusing the court process and unduly delaying this matter. And he responded that we say that is not the case, that all parties be allowed to plead matters that would ensure that their rights are effectively determined, the rules allow that whenever it becomes necessary then application like the instant one subject to the court’s discretion should be allowed. Counsel indicated if the issue about delays is an injury to the respondent, then we say again that cost will actuate that injury. Counsel for Plaintiff/Applicant concluded by saying that the 1st Defendant has had a bite at the courts discretion in allowing the 1st Defendant to amend its statement of defence without any opposition whatsoever, and said we respectively submit that it is the opposition of Defendants that are in bad faith as such, we pray the court exercise its discretion favorable in our favour in respect of this application just as it did for the 1st Defendant. 1st Defendant Counsel vehemently opposed the application, and their main reason was that of paragraph 25 of the proposed amended statement of claim that from paragraph 25 and the particulars (i – viii) it is not clear which of the facts stated therein is fraudulent and which amount to misrepresentation and to Counsel for 1st Defendant, that was irregular. Counsel submitted further that 1st Defendant sought leave of the court to amend its statement of Defence and the facts contained in the amended statement of defence is what the applicant is seeking to respond to and that is why we stated that the amendment appears to be changing the case of the plaintiff. Counsel for 1st defendant also referred the court to the Yeboah v Bofour case and said they are supported in their position by the very principles counsel raised in the case and said leave for amendment may be granted by this court and same may be done only if the said amendment will not overreach the Respondent. Counsel also referred the court to the case of Jebrielle Mahama v Akwasi Mensah CA/No. J4/45/2019 and said that it is clear on the face of the intended amendment that it is seeking to respond to fact in the amended statement of defence and concluded that it will overreach the 1st Defendant. Counsel for 2nd and 3rd defendant also vehemently opposed the application and relied on the affidavit in opposition filed on 27th January, 2023 and said that the purpose of the application is to change the course of action and the fact that brought the plaintiff to court. Counsel referred to relief 8, 9 and 10, and said that apart from not particularizing his special damages, in their original claim filed on the 25th January, 2008 nowhere does it mention in the claim that he constructed a two bedroom house on the land. Counsel concluded by referring the court to In Re Ashalley Botwe lands (2003-04) 1SCGLR @ page 434 and concluded that the application should be refused, and the applicant mulcted in cost. Counsel for plaintiff on point of law referred the court to Ecobank Ghana Limited v. Aluminum Enterprise Ghana Limited J4/18/20 dated 13th May 2020. The legal basis for this application is found in Order 16 Rule 5 (1) (a) and (b) of the High Court Civil Procedure Rules, 2004, CI 47. (1) Subject to Order 4 rules 5 and 6 and to the following provisions of this rule, the Court may at any stage of the proceedings upon an application by the plaintiff or any other party grant leave to (a) the plaintiff to amend the plaintiff’s writ; or (b) any party to amend the party’s pleading; on such terms as to costs or otherwise as may be just and in such manner as it may direct. Hearing is yet to start in this case and the principle is that no matter how late an amendment, it must be allowed if it helps determines the issues between the parties. It was held in Adjeley v Sowa and Another (1966) GLR 754 @ 757 per Edusei J “where it appeared that the way a party had framed his case would not lead to a decision on the real matter in controversy it was a matter of right on his part to have it corrected if it could be done without injustice to the other party. However negligent or careless a party might have been and however late the proposed amendment, it ought to be granted if it was made bona fide and caused no injustice to the other party or the other party could be compensated by costs or otherwise”. See also: Ghana Airways Corporation v Addo (1992) 397 @ 401 per Benin J HC. I will finally refer to the case of Yeboa and Anor v Bofour (1971) 1 GLR holding 7, “ An application for an amendment (which is governed by Order 28 of the Supreme [High] Court(Civil Procedure) Rules, 1954 (L. N. 140)) may be made as soon as the necessity arises, and as a general rule the court will allow an amendment even up to the last moment, provided that (i) no surprise results, (ii) it does not enable a party to set up an entirely new case or to change completely the nature of his case, (iii) it is not sought to add new parties, (iv) it will not do any injury to the opponent’s case or prejudice him in some way which cannot be compensated by costs or otherwise, (v) the application be made bona fide and (vi) the proposed amendment will not cause undue delay or is irrelevant or useless or would merely raise a technical point. However, a court will not grant leave to amend the pleadings after final decree or entry of judgment.” Attorney- General v. Corporation of Birmingham (1880) 15 Ch. D. 423, C. A. I am of the humble opinion that granting the application of the Plaintiff/Applicant will not sin against any of the factors to be considered in granting such amendment applications and same will also be in accordance with the rules. Application will therefore be granted as prayed. Plaintiff to file the amendment within 7 days and defendants can file the necessary amendments if they wish to do so. HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, SGD CIRCUIT COURT JUDGE.