HASNEM ENTERPRISE LTD. vs. ELECTRICITY CORPORATION OF GHANA [1990]DLHC2025

Date	1990-04-12
Suit No.
Citation No.	[1990]DLHC2025

BENIN J.

C. K. SAMPSON FOR THE PLAINTIFFS.

F. K. KORLEY FOR THE DEFENDANTS.

[1990]DLHC2025
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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">HASNEM ENTERPRISE LTD.<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">ELECTRICITY CORPORATION OF GHANA<o:p></o:p>[HIGH COURT, CAPE-COAST]<o:p></o:p>[1992] 2 GLR 250<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: 12 APRIL
1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>C. K. SAMPSON FOR THE PLAINTIFFS.<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">

F. K. KORLEY FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT OF BENIN J.<o:p></o:p>The plaintiffs claim against the defendants “the sum of
¢175,771.50 being general damages for breach of contract for the supply of
electricity and/or alternatively for negligence and/or nuisance.” This is
contained in the indorsement on the writ of summons filed on 5 May 1982. The
plaintiffs filed a statement of claim on 2 July 1982.<o:p></o:p>The indorsement on the writ was first amended with leave granted
on 26 October 1983, and secondly, with leave granted on 24 June 1985. The writ
as finally amended reads as follows: “The plaintiffs’ claim against the
defendants is for general and special damages for breach of contract for the
supply of electricity and/or alternatively for negligence and/or nuisance.” The
statement of claim was never sought to be amended to reflect the amended writ.<o:p></o:p>The hearing was concluded and the matter set down for addresses on
4 April 1990. On 3 April 1990 the plaintiffs put in an application on notice to
amend the writ of summons for yet a third time. There is no limit to the number
of times a party can seek to amend his writ or pleadings. I heard arguments on
the proposed amendment but reserved the ruling to be embodied in the final
judgment, which I now proceed to deliver.<o:p></o:p>What is the proposed amendment seeking? The plaintiffs by their
claim are saying that as a result of the negligence of the defendants a fault
developed on an underground cable resulting in damage to certain electronic
gadgets or appliances of theirs. They have therefore sued for general and
special damages. They put in the value of the items damaged as at the date of
the incident. The amendment seeks to put an increased value on the damaged
items, that is their current value as counsel said in his argument. Next, the
amendment sought to claim loss of prospective income, loss of use and
inconvenience, as well as interest.<o:p></o:p>Arguing for the acceptance of the proposed amendments, counsel for
the plaintiff-applicants said they were coming under Order 28, r. 2 of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140A.). He cited for his authority
the decision in Baah Ltd. v. Saleh Brothers [1971] 1 G.L.R. 119 at 124 where
the court said it could entertain an application to amend even at a stage when
judgment had been reserved. Counsel explained there was no need for an
affidavit in support.<o:p></o:p>Counsel for the defendants opposed the application on the grounds
that (i) there must be an affidavit to explain the delay in bringing the
application at that stage; (ii) there was no basis for it, for it was not the
plaintiffs’ case that they were yet to buy the items. The value of the articles
became a debt as at the date of the damage and it was their value then which
was recoverable and not the revised value, the principle being restitutio in
integrum. He cited the case of Konadu v. Ntoah [1971] 1 G.L.R. 318.<o:p></o:p>The plaintiffs do not seek to amend their statement of claim. For
that reason only I am of the opinion that the amendment is useless and should
thus not be granted. It has been held in Cargill v. Bower (1878) 10 Ch.D. 502
that a relief which is not repeated in the statement of claim is treated as
abandoned. The statement of claim will still show that the plaintiffs are
claiming ¢175,771.50 as special damages and ¢125,000 as general damages, whilst
the writ will claim over ¢2 million by the amendment, if granted. An amendment
which will be useless if made will not be allowed: see Sinclair v. James [1894]
3 Ch. 554 and Durham Brothers v. Robertson [1898] 1 Q.B. 765, C.A.<o:p></o:p>I will give further reasons for rejecting the amendment. An
amendment which will raise a case that must necessarily fail should not be
allowed because there is nothing to be gained by it: see Jones v Hughes [1905]
1 Ch. 180 at 186-187, C.A. per Vaughan Williams L.J. This being a case for
damages, for breach of contract or negligence or both, the principle is
restitutio in integrum. And as was stated by Azu-Crabbe J.S.C. (as he then was)
in West African Bakery v. Miezah [1972] 1 G.L.R. 78 at 94, C.A:<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">“In applying the principle of restitutio in integrum the court
will first have to decide the value of the thing damaged or destroyed; that is,
its value to the owner at the time and place of the damage or destruction.”<o:p></o:p>