KONADU vs. NTOAH [1971]DLHC2124

Date	1971-01-18
Suit No.
Citation No.	[1971]DLHC2124

BAIDOO J.

Y. ATTAKORA-AMO FOR THE APPLICANT.

DR. I. L. OHENE-DJAN FOR THE RESPONDENT.

[1971]DLHC2124
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													<main id="main" class="content" style="min-height: 60rem" >KONADU <o:p></o:p>vs. <o:p></o:p>NTOAH <o:p></o:p>[HIGH COURT,
SUNYANI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 318<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 JANUARY 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

Y.
ATTAKORA-AMO FOR THE APPLICANT.<o:p></o:p>

DR. I. L.
OHENE-DJAN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BAIDOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BAIDOO J.<o:p></o:p>This
motion was filed on 5 December 1970 by the defendant under Order 27, r. 1 of
the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.A. 140A), praying for
an order dismissing the action for want of prosecution. The plaintiff
instituted her action on 28 October 1970 by filing an ordinary writ of summons
unaccompanied by any statement of claim. The writ was duly served on the
defendant on 18 November 1970 and two days later the plaintiff filed a motion
praying for an interim injunction to restrain the defendant. On 23 November
1970 the defendant, acting through her solicitor, Mr. Yaw Attakora-Amo, entered
an appearance which was served in course of time on plaintiff’s solicitor, Dr.
I. L. Ohene-Djan.<o:p></o:p><o:p>&nbsp;</o:p>The
endorsement on the writ indicated all along that the plaintiff was suing in her
own right (not in any representative capacity) and suing only one defendant,
Akua Konadu. Although Dr. Ohene-Djan is the person who has been acting as the
plaintiff’s solicitor all along and is fully aware that no application of any
sort has at any time been submitted to the court for amendment of the capacity
in which plaintiff is suing or for joinder of any person as the second
defendant, yet he filed on 4 December 1970 another writ of summons with an
accompanying statement of claim in both of which the title of the action was
stated to be between Yaa Ntoah, customary successor of the late Kwasi Buor for
herself and on behalf of the estate of the said late Kwasi Buor as plaintiff
and Akua Konadu as the first defendant with Abena Temah as the second
defendant. In the circumstances, learned counsel for the defendant, contends
that the second writ of summons filed on 4 December 1970 is in law a new and
different action and its accompanying statement of claim cannot under the rules
be treated as a statement of claim filed in the original suit between Yaa Ntoah
and Akua Konadu. Consequently he wants the original action dismissed for
failure to file a statement of claim.<o:p></o:p><o:p>&nbsp;</o:p>The
second writ, which was filed on 4 December 1970 stated on the top of it that it
was an “amended writ” and it is clear from the circumstances that the
plaintiff’s solicitor has misconceived the true scope of Order 28, r. 2 of the
Supreme [High] Court (Civil Procedure) Rules, 1954, which allows a plaintiff to
amend his statement of claim without leave “once at any time before the
expiration of the time limited for reply and before replying, or, where no
defence is delivered, at any time before the expiration of four weeks from the appearance
of the defendant . . .” That rule applies only where the amendment is in
respect of the statement of claim whether the same is endorsed on the writ of
summons as in the case of a specially endorsed writ, or whether the statement
of claim is issued independently on a separate paper as is done usually in an
action initiated by the filing of an ordinary writ. Order 28, r. 2 does not
permit a plaintiff to amend the capacity in which he is suing without the leave
of the court, nor does it permit a plaintiff to add another person as an
additional defendant without first obtaining leave.<o:p></o:p><o:p>&nbsp;</o:p>The
procedure for amending a writ varies according to the precise portion of the
writ which the plaintiff desires to amend. For instance if it is the statement
of claim endorsed on the writ that is desired to be amended then Order 28, r. 2
if applicable, can be invoked as discussed supra. If the time limit permitting
the plaintiff to amend without leave has expired then an application to amend
the statement of claim must be submitted to the court for leave to be granted
for the amendment. Similarly, different rules apply according as to whether the
amendment desired is in respect of the amount of damages claimed on the writ,
or whether the amendment is in respect of the parties involved in the action.
Also the stage at which the proceedings have reached is relevant to determine
the nature of the application to amend. The matter is well discussed in The
Annual Practice, 1966 at pp. 446 and 447. The relevant portion which deals with
the amendment of writ as to parties occurs at pp. 446 - 447 where the notes
state as follows:<o:p></o:p>