Amendment of a claim to add a declaration of title where no new evidence is needed
In our opinion the trial-Judge properly directed himself that the main issue raised on the pleadings was one of title. However, following the practice laid down in the case of England v. Palmer, we granted leave to the plaintiff to amend his claim by adding a claim for declaration of title. This amendment did not raise any issue on which evidence had not already been taken, consequently no injustice could be done by granting the amendment.
Amendment of the title of a suit to state the capacity of the parties
As soon as any question arose as to the capacities of the respective parties, it was in our view, the duty of the Court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that could be done without any hardship to either party.
Amendment on appeal to determine the real controversy
It should be pointed out, firstly, that from the trend of the judgment, the omission to record an order granting the amendment sought is a mere oversight, a technicality which does not go to the root, and that in any event the numbers of the buildings are absolutely irrelevant to the real controversy which the High Court was called upon to settle; the irrelevance, as earlier observed was made apparent by the inspection, and above all, by the plan exhibit Z. Had an amendment been necessary in this respect to enable the real controversy between the parties as disclosed upon the evidence to be settled, we would have had no hesitation, in the interest of justice, in granting the leave sought in this court by counsel for the defendants to amend as was done by the Court of Appeal in Nkyi XI v. Kumah.4 For circumstances in which an appeal court will allow amendment of writ or pleadings to enable it to determine the real issue in controversy, see England v. Palmer.
Duty of the court to allow amendments to determine the real questions in controversy
It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made and Order 28, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), infact provides mandatorily that “all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
Effect of failure to file an amended pleading within the time limited
The question is whether these amendments were a nullity merely because counsel had failed to file the amended pleadings within the times laid down in the amending orders. Quite clearly if the court orders had confined themselves to granting leave to amend then failure to file the amendments within the time limited must result in their becoming ipso facto void as laid down in Order 28, r. 7. But this failure to file the amendment within the time limited is not irremediable as was contended by counsel for the defendants in the court below citing Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C. and concurred in by the plaintiffs’ counsel who argued similarly concerning the amended statement of defence. Order 28, r. 7 expressly leaves room for the court to grant an extension of time.
