AGBOADO AND OTHERS vs. FIANKOR AND ANOTHER [1995-96] 1 GLR 278

CASES REFERRED TO

(1) Lawrance v Norreys (Lord) (1888) 39 ChD 213; 15 App Cas 210; [1886-90] All ER Rep 858, HL.

(2) Derrick v Williams [1939] 2 All ER 559; 160 LT 589; 55 TLR 676, CA.

(3) Hyams v Stuart King (a firm) [1908] 2 KB 696; 77 LJKB 794; 99 LT 424, CA.

(4) Leavey (J) & Co Ltd v George H Hirst & Co Ltd [1944] KB 24; [1943] 2 All ER 581; 113 LJKB 229, CA.

[p.281] of [1995-96] 1 GLR 278

(5) Hausa v Hausa [1972] 2 GLR 469, CA.

(6) Crossly v Dorning (1867) 16 LT 698; 15 WR 1078.

NATURE OF PROCEEDINGS

APPEAL by the defendants from the judgment of the Circuit Court, Denu in favour of the plaintiffs in actions for, inter alia, declaration of title to land brought against them separately by the plaintiffs but which on the application of the plaintiffs were consolidated on the ground, inter alia, that notwithstanding the consolidation the trial court had conducted the proceedings as if only a plaintiff and a defendant were involved in the suit and had given one judgment in respect of all the suits. The facts are sufficiently set out in the judgment of Benin JA.

COUNSEL

E D Kom for the defendant-appellants.

James Ahenkorah for the plaintiff-respondents.

JUDGMENT OF BENIN JA

Benin JA delivered the first judgment at the invitation of Lamptey JA. Five different suits were consolidated by the trial circuit court on 29 October 1979. The plaintiffs in all the five suits were the same persons looking at the title of the suits as set out in the application for leave to amend filed on 13 August 1985, but the defendants were different in each suit. Unfortunately, this court has not had the benefit of knowing what relief was sought in each suit as the writ and statement of claim in all the cases do not form part of the record before this court. This is important because as it turned up in the proceedings subsequent to the consolidation, the entire purpose of the consolidation was lost on everybody connected with the trial. An important incidence of consolidating cases is to enable the hearing to be facilitated and expedited. But another equally important incidence of consolidation is that a separate judgment must be delivered in each suit. Thus the individual identity of each of the consolidated suits must be maintained throughout the proceedings up to execution. Hence pleadings filed subsequent to consolidation must clearly specify in which of the consolidated suits it is being filed. The same cannot be said of this trial after the five suits were consolidated, it proceeded as though there was only a plaintiff against a defendant with the same reliefs and also the same defences and not surprisingly only one judgment was given. Clearly, the trial following the order of consolidation was anything but satisfactory and this in my view calls

[p.282] of [1995-96] 1 GLR 278 for a retrial as injustice has been occasioned.

Nevertheless, I shall go on to consider the two grounds of appeal argued by counsel. The first involved an amendment allowed by the court and the second involved the giving of one judgment instead of as many judgments as there were suits. First the amendment. It is important to set out the entire title of the suit, the contents of the motion paper and the accompanying affidavit here:

“In the Superior Court of Judicature, The Circuit Court, Denu Suit No 1/78.Livingstone Dotse Fiankor and Ors, etc Plaintiffs v

Charles Koblavi Fiankor and Ors, etc Charles Koblavi Agboado, etc Defendants Suit No 2/78. Livingstone Dotse Fiankor and Ors, etc Plaintiffs v

Kodzovi Agboado Defendant Suit No 3/78. Livingstone Dotse Fiankor and Ors, etc Plaintiffs v

Tsawunyekpor Agugado Defendant Suit No 4/78. Livingstone Dotse Fiankor and Ors, etc Plaintiffs v

Kwashie Amega Defendant Suit No 5/78. Livingstone Dotse Fiankor and Ors, etc Plaintiffs v

James Salumah Defendant.

Motion on Notice Applying for Leave to Amend The Writ of Summons and the Statement of Claim, Order 28, r 6

Please take notice that R A Okartei-Akko, Esquire, of counsel for and on behalf of the plaintiff-applicants herein will pray this honourable court for leave to amend the writ of summons and the statement of claim in this action.

And for such further order or orders as to this honourable court may deem meet.”

[p.283] of [1995-96] 1 GLR 278

The affidavit in support bore the same title as quoted above and was deposed to by Livingstone Dotse Fiankor of Anlo Afiadenyigba for himself and on the authority also by the second plaintiff; these are contained in paragraphs (1) and (2) of the said affidavit. The other depositions therein were:

“(3) That the plaintiff-applicants in this action have sued the defendants claiming, among other reliefs, declaration of title to the land in dispute, recovery of possession of the land, perpetual injunction and damages for trespass.

(4) That I am advised by counsel and verily believe the same to be true that for the purpose of judiciously determining the real questions in controversy between the parties in this suit, it is necessary to amend both the writ of summons and the statement of claim in compliance with the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended.

(5) Wherefore I swear to this affidavit in support of the motion by my counsel praying for leave of the court to amend the writ of summons and the statement of claim in this action.”

On 19 September 1985 this application was moved by counsel for the plaintiff-applicants and the court allowed it with costs and gave the plaintiffs two weeks to file the amended statement of claim and writ of summons. What was the nature of the amendment sought? What did the court grant an order to amend? And against which party or parties was the supposed amendment sought and granted? The rule of practice under Order 28, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) has been that the intended or proposed amendments must always be specified either in the body of the application or summons (where possible, especially in cases where it is only a short amendment) or in the accompanying affidavit (if any is filed) or in an annexed pleading, which must, in any case, set forth quite clearly what amendment is sought: see cases like Lawrance v Norreys (Lord) (1888) 39 ChD 213 at 217, HL and Derrick v Williams (1939) 55 TLR 676, CA. The effect of not formulating the intended amendment as has been held by the courts over the years is that the leave sought to amend should not be granted. Hence it has been decided in these cases, namely Derrick v Williams (supra), Hyams v Stuart King (a firm) [1908] 2 KB 696 at 724, CA per Farwell LJ and J Leavey & Co Ltd v

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George H Hirst & Co Ltd, [1944] KB 24 at 27, CA per Lord Greene MR that leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated. The principle involved is to bind the party to the amendment allowed and to prevent amending the pleadings generally.

In this case, it is clear that no proposed or intended amendment was formulated either in the body of the motion paper, or in the accompanying affidavit, or in any pleading annexed. There was thus nothing to amend before the court and the order as made gave leave to amend nothing. It was a useless application and with all due respect to the learned judge, an equally useless order; it was indeed a void order. It was as though the plaintiffs were seeking to amend everything, which was not the application made anyway. The application and the order did not follow any rule of practice or procedure so that the court could even suo motu vacate it. It failed to state which of the suits the plaintiffs were seeking to amend. The appeal in respect of the amendment will be allowed for the foregoing reasons.

Or we should take it that they sought to make similar amendments in all the five suits. Let us proceed on the basis that the latter situation prevailed at least having regard to the title alone. Before then I must correct the erroneous impression created by the application that the circuit court is part of the superior courts of judicature, it is not. The two weeks allowed by the trial judge to the plaintiffs to amend the writ and pleadings elapsed without the amendment being effected. So on 25 October 1985 the plaintiffs per counsel applied on notice for extension of time to effect the amendment. There was an affidavit in support. Accompanying these papers was one paper headed “Amended statement of claim”, and another one headed “Amended writ of summons.” The extension of time sought was granted on 30 October 1985 but no time was appointed for the amendment to be effected. The court allowed the two papers already filed, namely an amended statement of claim and the amended writ of summons to stand. At best, therefore, these two papers were deemed filed with effect from 30 October 1985 when the extension of time was granted.

Mr Kom, counsel for the appellants, has complained that the two weeks having elapsed, the order granting leave to amend became ipso facto void and that the trial court had no power to grant any extension of time. The plaintiffs could only come by a fresh application. The

[p.285] of [1995-96] 1 GLR 278 judgment which was based on this void order was therefore also void. For his part, Mr Ahenkorah, counsel for the respondent, submitted that under Order 28, r 7 of LN 140A the court had power to grant an extension of time to effect the amendment and that such an application could be made either before or after the expiration of the time allowed the party to amend.

Order 28, r 7 of LN 140A provides:

“7. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a Judge.”

This court has in the case of Hausa v Hausa [1972] 2 GLR 469, CA held that failure to file an amendment within the time limited by the court or the rules under Order 28, r 7 of LN 140A was not irremediable and that this rule expressly left room for the court to grant an extension of time. But the issue here is not merely whether the court has power to grant an extension of time but when it can exercise that power. To recap counsel’s arguments, Mr Kom says it can only be exercised if the application is brought before the expiration of the time allowed, but Mr Ahenkorah says it can be exercised even after the expiration of the time. Admittedly, Order 28, r 7 does not expressly decide the point. It says the order would become void automatically if not complied with within the time set by the court or within fourteen days as the case may be. But it goes on to say that the court could extend the original time allowed for the amendment and thereby validate the original order. Unless this is the correct interpretation the provision empowering the court to grant the extension of time would be meaningless for if the party were to come to court to ask for extension of time before the original time has expired, he might as well file within the period. Why bring an application for extension of time when you could file the amendment? The rule envisages a situation where due to some unavoidable circumstances a party in whose favour the order was made could not file his amendment on schedule and desires to do so with the consent of the court after the time allowed him has expired. That

[p.286] of [1995-96] 1 GLR 278 explains why in the case of Crossley v Dorning (1867) 16 LT 698, where the party could not amend within the time fixed by the court, he was allowed to do so through an extension of time when he explained that he was then out of the jurisdiction. It is a discretion vested in the court to exercise in appropriate circumstances.

As I pointed out earlier, Order 28, r 7 of LN 140A does not specify when an application for extension of time may be made. It is thus perfectly right to have recourse to Order 64, r 6 of LN 140A on this. It provides in relevant terms that:

“6. Subject to any provisions to the contrary in these Rules a Court or a Judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by an order enlarging time for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed . . .”

(The emphasis is mine.) I believe this provision puts to rest any argument that the application could only be sustainable if made before the expiration of the time appointed or allowed. I reject Mr Kom’s argument accordingly for under Orders 28, r 7 and 64, r 6 of LN 140A, the application for extension of time within which to file an amendment can be put in even after the time appointed under Order 28, r 7 of LN 140A or allowed by the court has elapsed. But it must be made clear that the order enlarging time would also become void if not complied with. So the question is whether the court’s order granting the extension of time was complied with by the plaintiff. I have already pointed out that from the title to the application, as well as from the body of the motion paper and supporting affidavit, the application affected all the suits. But it is interesting to note that the title to both the amended writ of summons and amended statement of claim bore the title of suit No 5/78 only. An amendment filed should not differ from what was granted upon leave both in its title and contents. The position then is that having regard to the suit number and title to the amending processes filed, it is clear the plaintiffs did not amend the pleadings in the other suits for which leave was sought and granted. Thus any attempt to connect the amended writ and pleadings to the other suits would be wrong. The position then is that the pleadings in

[p.287] of [1995-96] 1 GLR 278 respect of suit Nos 1/78, 2/78, 3/78 and 4/78, if any, were not amended. I believe the parties would be surprised to learn this. Indeed, it is part of the confusion that engulfed the proceedings after the consolidation. And as if we have not had enough, it was the defendant in suit No 1/78 who filed an amended defence to the amended statement of claim and not the defendant in suit No 5/78 in which the amendments were filed.

On 18 December 1986 summons for directions was filed in suit No 1/78 only. Subsequently, one Kwasivi Asinyo Kota was joined to this suit No 1/78 as a co-defendant. Henceforth the record shows a contest between only the parties in suit No 1/78 and the entire proceedings were conducted under the title and the suit number in 1/78 even though five suits were consolidated. At the same time that the plaintiffs filed the summons for directions, they also filed a notice of discontinuance under Order 26, r 1 of LN 140A against two of the defendants, namely Tsawunyekpor Agboado (who from the record was the defendant in suit No 3/78) and Kwashie Amega (the defendant in suit No 4/78). At the stage that this notice was filed, it required leave of the court to discontinue. But it is clear no such leave was granted for the trial judge erroneously took the view that the notice of discontinuance once filed was effective to get the said defendants out of the action. The court in its judgment said briefly that “On 18 December 1986 the plaintiffs discontinued against the third and fourth defendants.” 18 December 1986 was the date of filing of the application. Thus the two defendants remained parties to this date. On the other hand I believe the court’s treatment of this point in the judgment should be taken as having granted the leave to discontinue but with effect from the date of the judgment, namely 21 February 1990. I have given a brief background for a better appreciation of the second ground of appeal which deals with the judgment.

Mr Kom’s attack on this judgment was that even though five suits were consolidated yet only one judgment was delivered, this he submitted rendered the trial unsatisfactory and thus called for a retrial. For his part, Mr Ahenkorah said the defendants in suit Nos 2/78 and 5/78 did not take part in the trial, and the suit was discontinued against the defendants in suit Nos 3/78 and 4/78 so effectively only suit No 1/78 was heard, thus the judgment was referable to only suit No 1/78.

I have already mentioned that separate judgments are to be delivered in each one of the consolidated suits, else no judgment of the court

[p.288] of [1995-96] 1 GLR 278 could be said to have been pronounced. Let me now go straight to the judgment. The suit number is 1/78, and the title reads:

“(1) Livingstone D Fiankor

(2) Gershon Y Fiankor — Plaintiffs v

(1) Charles Koblavi Agboado (2) Kodzovi Agboado

(3) James Salumah — Defendants Kwashivi Asinyo Kota — Co-defendant.”

Note that Charles Koblavi Agboado is the defendant in suit No 1/78, Kodzovi Agboado is the defendant in suit No 2/78 and James Salumah is the defendant in suit No 5/78. Missing from this title were the two defendants in respect of whom the notice of discontinuance was filed. Thus even though the suit number used was 1/78, it could be seen that it was only for convenience and ease of reference, but the court knew it was dealing with consolidated actions involving three different defendants and a co-defendant. The court was thus bound to give separate judgments in each of the suits, namely 1/78, 2/78 and 5/78 giving separate reasons. If it found it necessary to give the same reasons in all three cases it ought to say so in no uncertain terms to reflect the distinctive character of each judgment.

The judge did not do this but rather proceeded as though it was one case before him, and he used the statement of claim filed in suit No 5/78 for all of them as if they had all adopted that and filed a common defence. And the fact that the judge relied on only this statement of claim for all the others and also the defence filed by the defendant in suit No 1/78 for all the others led him into grave error. The position is that the statement of claim filed by the plaintiff on 18 May 1978 against the defendant in suit No 1/78 and the corresponding defence filed on 23 May 1978 were not considered by the court. There is no statement of claim on the record against the defendant in suit No 3/78 and there is no statement of defence by him either. So as between the two parties there was nothing to consider. And as between the parties in suit No 5/78, the plaintiffs filed what was termed an amended statement of claim with leave when in fact there was no prior statement of claim (at least on the record) for which an amendment could be sought or granted. At any rate there was no response by the defendant

[p.289] of [1995-96] 1 GLR 278 in suit No 5/78 to this amended statement of claim so the court could not use the defence filed in suit No 1/78 for suit No 5/78 in considering the plaintiffs’ case against the defendant in suit No 5/78. The appeal in respect of the judgment also succeeds.

In conclusion, I am of the view that the whole trial was unsatisfactory and so the judgment could not be made to stand. The appeal will accordingly be allowed and the case will be remitted to the trial circuit court for trial de novo in suit Nos 1/78, 2/78 and 5/78.

JUDGMENT OF LAMPTEY JA.

I agree.

JUDGMENT OF AFREH JA.

I have had the privilege of reading the judgment of my brother Benin JA. I agree with it and have nothing to add.

DECISION

Appeal allowed.

DRKS