EMMANUEL MANU ASOMOAH vs. IGNOZIO MESSINA & CO. & ANOR [2004]DLCA6999

Date	2004-05-28
Suit No.	CIVIL APPEAL NO: H1/69/2004
Citation No.	[2004]DLCA6999

ARYEETEY JA

ANINAKWAH JA

QUAYE JA

[2004]DLCA6999
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL MANU ASOMOAH<o:p></o:p>(PLAINTIFF/ RESPONDENT)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0">IGNOZIO MESSINA &amp; CO. &amp; ANOR<o:p></o:p>(DEFENDANT/ APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO: H1/69/2004&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; DATE: 28TH MAY, 2004<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;
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ARYEETEY JA, ANINAKWAH JA, QUAYE JA<o:p></o:p>

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</div>ANINAKWAH,
JA <o:p></o:p>On
20th June, 2002, the High Court, Accra, granted leave to the
Plaintiff/Respondent (hereinafter referred to as Plaintiff) to amend his
statement of claim. <o:p></o:p>Aggrieved
by the ruling, the Defendants/Appellants (hereinafter referred to as
Defendants) have appealed to this Court on the following grounds.<o:p></o:p>&nbsp;(1) The learned High Court Judge failed to
fully appreciate the law and principle which govern the right of a party to
amend its pleadings in an action. <o:p></o:p>(2)
The learned High Court Judge failed to avert her mind to the facts as placed
before her by the Defendants, which showed that the plaintiffs proposed
amendments constitute an attempt to change the fundamental basis and nature of
his case after delivery of Defence.<o:p></o:p>&nbsp;(3) The learned Judge also failed to
appreciate the fact that the amendments being sought by the plaintiff were made
in direct reaction to factual answers already pleaded by Defendants in their
reply to plaintiff's averments in his statement of claim and thus ought not to
have been allowed.<o:p></o:p>&nbsp;(4) The learned Judge in her Ruling,
misdirected herself by dealing with factors that ought to be considered in
granting leave to amend, and completely failed to properly consider and address
the facts put before her by the Defendants, which constitute circumstances
under which leave to amend ought not to be granted.<o:p></o:p>&nbsp;(5) The learned Judge failed to appreciate the
fact that the plaintiff had already adequately canvassed the facts and
averments for which he sought leave to amend his statement of claim in his
Reply to the appellants' statement of defence. <o:p></o:p>The
brief facts captured from the statement of claim are that - 1st Defendant is a
Common Carrier and owner of the Vessel MV Schulte. The 1st defendant carries on
business in Ghana through 2nd Defendant its local agent; <o:p></o:p>By
a contract of carriage by sea covered by a Bill of Lading dated 17/4/99, issued
at Geneva (SIC) Italy, and signed by the Master on their behalf, defendants
acknowledged receipt on board their vessel MV Schulte of a container cargo
containing, inter alia 1 Ground Cherokee Jeep for carriage to and delivery at
Lome, Togo. Plaintiff was the owner of the Cargo and indorsee of the Bill of
Lading to whom property in the cargo passe.’ upon or by reason of the endorsement.
According to Plaintiff in breach of contract and or duty, the Defendants failed
to deliver the Cargo at Lome. On the contrary, due solely to the Defendants'
gross negligence and or breach of duty, the said Cargo was delivered at Tema,
Ghana where it was seized by the port and custom authorities. <o:p></o:p>Plaintiff
therefore claims against the defendants, jointly and severally, as per the
endorsement on his writ of summons. <o:p></o:p>Defendants'
reaction to plaintiff’s claims was a denial of plaintiff's assertion that the
Cargo — Ground Cheerokee Jeep was to be delivered at Lome in Togo. <o:p></o:p>By
paragraph 3 of their statement of Defence — Defendants averred that".... <o:p></o:p>By
the terms of the Bill of Lading dated 17/4/99 and referred to by the
Plaintiffs, the Port of discharge of the cargo was endorsed at Tema, Ghana, and
not Lome, Togo." <o:p></o:p>Defendants
defence brought the plaintiff to his feet and prompted him to invoke the
provisions of the High Court Rules (1954) L.N. 140A to amend his pleadings. The
trial judge in a brief and terse ruling granted the plaintiff's application
thus:-"Having heard arguments on both sides, and seen documents tendered,
and guided by the rules of Court, and grant the Motion (SIC)."<o:p></o:p>&nbsp;It is against this Ruling that the defendants
have appealed to the Court. Amendment is a statutory right reserved to parties
to a litigation and provided the right is exercised in accordance with the law,
it may be allowed at any stage in the proceedings.<o:p></o:p>&nbsp;Ord</main>