ESSON vs. OPPONG AND ANOTHER [1987]DLHC2012

Date	1987-08-04
Suit No.
Citation No.	[1987]DLHC2012

KPEGAH J.

ASIAM FOR THE PLAINTIFF.

E. F. SHORT FOR THE DEFENDANTS.

[1987]DLHC2012
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ESSON<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">OPPONG AND ANOTHER<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1992] 2 GLR 36<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 4 AUGUST
1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASIAM FOR THE PLAINTIFF.<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">

E. F. SHORT FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF KPEGAH J.<o:p></o:p>I deem it necessary to decorate this ruling of mine with a
pertinent statement of Holt C.J. in an anonymous case reported in Salkeld
Reports (Anon I SALK 86). His lordship said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The course of this Court is, where an attorney takes upon himself
to appear, the Court looks no further, but proceeds as if the attorney has
sufficient authority.”<o:p></o:p>On 23 July 1987 the plaintiff issued a writ of summons against the
two defendants claiming general and special damages suffered as a result of the
negligent driving of the first defendant who is the insured of the second
defendant — an insurance company. The writ was accompanied with a statement of
claim. Both documents were served on the second defendant. There is however a
certificate of non-service in respect of the first defendant. On 13 August 1987
however, Mr. Emile Francis Short entered appearance for both defendants. In the
memorandum of appearance accompanying the entry of appearance, it was
specifically stated that the entry of appearance was in respect of. “1.
Stephens Oppong, 2. State Insurance Corporation, the defendants in this
action.” Thereafter, no step was taken by the solicitor for the defendants to
file a statement of defence. Subsequently, though not timeously, the plaintiff
brought a motion for an interlocutory judgment against both defendants in default
of defence. The motion was fixed for hearing on 8 June 1987. At 9.25 am of the
said date, Mr. Short filed a “notice of amendment” in which he seeks:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Leave of the court to amend the entry of appearance by inserting
the word “second” in front of the word “defendants” where it so appears and for
the name Stephen Oppong to be deleted from the duplicate of memorandum of
appearance.”<o:p></o:p>The solicitor in effect is not only seeking leave to withdraw his
representation in respect of the first defendant, but also to withdraw the
entry of appearance filed on his behalf.<o:p></o:p>The procedure was queried and learned counsel said the procedure
adopted by him could be brought under the High Court (Civil Procedure) Rules,
1954 (L.N. 140A), Order 28, r. 12. The said Order states:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“12. The Court or a Judge may at any time, and on such terms as to
costs or otherwise as the Court or Judge may think just, amend any defect or
error in any proceedings, and all necessary amendments shall be made for the
purpose of determining the real question or issue raised by or depending on the
proceedings.”<o:p></o:p>Order 28, r.1 of L.N. 140A is designed to enable the court effect
amendment at any time so as to be able to settle the real issues in controversy
between the parties once and for all. The Order then provides for specific
situations and later grants the court general powers under rule 12 as quoted
above. Learned counsel contended that since there was an application for
judgment in default, there was “proceedings” within the contemplation of the
rule so as to enable the court amend the entry of appearance to reflect that
the first defendant has in fact not entered appearance.<o:p></o:p>With much respect to learned counsel, I do not think Order 28,
r.12 of L.N. 140A was intended to cover such situations. The cases I have read
in which this rule was applied indicate that the rule is intended to effect the
settlement of the real issues raised between the parties and not the type of
amendment being sought. In the case of Nahum v. O. Wolley &amp; Co. and K.
Wolley &amp; Sons [1961] G.L.R. 241 the plaintiff ‘s claim was amended to take
care of the appropriate reliefs he was entitled to on the evidence; also in
Amakom Sawmill &amp; Co. v. Mansah [1963] 1 G.L.R. 368, S.C. where the evidence
showed the plaintiff to have been entitled to a higher amount than claimed, and
was awarded the lesser amount, the Supreme Court moaned that the ends of
justice would have been much better served if the trial court had exercised its
power under this rule. And lastly, in Ghana Commercial Bank v. Kofie [1963] 2
G.L.R. 235, S.C. the plaintiffs claimed £G5,592 6s 9d as money had and
received. The plaintiffs later filed a notice of their intention to amend to
include in their claim, a claim for accounts. At the trial it was obvious the
main issue was one of account between the parties. Referees were appointed who
found £G6,786 5s due from the defendants to the plaintiffs. The court gave
jud</main>