ADJELEY v. SOWA AND ANOTHER [1966] GLR 754

Division: HIGH COURT, ACCRA

Date: 21 NOVEMBER 1966

Before: EDUSEI J.

CASES REFERRED TO

(1) Cropper v. Smith (1884) 26 Ch.D. 700; 53 L.J.Ch. 891; 51 L.J. 729; 33 W.R. 60, C.A.

(2) Tildesley v. Harper (1878) 10 Ch.D. 393; 48 L.J.Ch. 495; 39 L.J. 552; 27 W.R. 249, C.A.

(3) Clarapede & Co. v. Commercial Union Association (1883) 32 W.R. 262, C.A.

(4) Weldon v. Neal (1887) 19 Q.B.D. 394; 56 L.J.Q.B. 621; 35 W.R. 820, C.A.

NATURE OF PROCEEDINGS

APPLICATION for leave to amend a writ of summons by adding a claim for interest at the rate of eleven per cent on the principal claimed. The facts are sufficiently set out in the ruling.

COUNSEL

Bannerman for the plaintiff.

Puplampu for Akotia for the first defendant. Puplampu for the second defendant.

JUDGMENT OF EDUSEI J.

On 17 November 1966 this court gave leave to the plaintiff to amend her writ of summons and statement of claim which were filed together. I now set out to give my reasons for allowing the amendments. The plaintiff’s writ of summons and the statement of claim were filed on 10 October 1966 and the gravamen of the claim was for the return of the sum of £G12,700 from the defendants on the ground that the consideration had failed. This sum was evidenced by a promissory note dated 2 August 1966. Appearance to the writ of summons was entered by both defendants. On 29 October 1966 the plaintiff filed summons for judgment and the application was fixed for hearing on 9 November 1966. On 3 November 1966 the plaintiff filed an amendment to the writ of summons by adding a claim of eleven per cent interest on the sum claimed. On 8 November 1966 another amendment of the statement of claim was filed setting out in clear terms the position of the first and second defendants.

[p.756] of [1966] GLR 754

In granting the application for the amendments I had in mind the cardinal principle which is stated in Order 28, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 that “all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.” Thus in Cropper v. Smith,2 Bowen L.J. made these important remarks about amendments:

“Now I think it is a well established principle that the object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy; and I do not regard such amendment as a matter of favour or grace . . . It seems to me that, as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

Bramwell J. had this to say in Tildesley v. Harper3:

“My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by this blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.”

This in fact has been my guiding principle when dealing with applications for amendments. I also share with Brett M.R. the views expressed in the case of Clarapede & Co. v. Commercial Union Association,4 as well as the opinion of Lopes L.J. in Weldon v. Neal,5 that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.

For the above reasons the amendments to the writ and statement of claim were allowed on 17 November 1966. 1, however, give costs

[p.757] of [1966] GLR 754 of £G12 to each defendant. The writ of summons is amended by adding the following: “Interest at the rate of eleven per cent from 4 April 1966 to date of judgment.” With regard to the statement of claim, I order that paragraphs (1) and (6) should be deleted and the following substituted therefor respectively:

“(1) In or about April 1966, the first defendant who is a member and acting as agent of the Broadway Co-operative Fishing Society Limited approached the plaintiff and asked her to pay the sum of £G12,700 or ¢30,480 to the State Boatyard Corporation at Tema where a fishing boat was being built for the second defendants.”

“(6) The Agricultural Credit Bank then treated the £G14,700 or ¢35,280 already paid to the State Boatyard Corporation on behalf of the Broadway Co-operative Fishing Society Ltd., as a deposit and the bank in turn released the boat to the Broadway Co-operative Fishing Society, Limited, on hire-purchase. Later on the Broadway Co-operative Fishing Society Limited, ratified the act of their agent the first defendant by accepting the hire-purchase arrangement with the Agricultural Credit Bank on the said boat, and by taking delivery thereof.”

In view of the fact that the amendments have been allowed I do not propose to proceed with the summons for judgment but will give the defendants opportunity to file their defence, if any, within fourteen days from today. The summons for judgment is adjourned to 12 December 1966.

DECISION

Application granted.

S. K. T.