NYAME BEKYERE SAWMILLS LTD. & 2 ORS. vs. GHANA RED CROSS SOCIETY & ANOR. [2009]DLCA6544

Date	2009-03-26
Suit No.	CIVIL APPEAL NO: H1/157/08
Citation No.	[2009]DLCA6544

A. ASARE KORANG J.A. (PRESIDING)

F. KUSI-APPIAH J.A.

V. D. OFOE J.A

MR. FRANK DONKOR FOR THE DEFENDANT/APPELLANT

MR. BRIGHT OKYERE AGYEKUM FOR THE PLAINTIFF/RESPONDENT

[2009]DLCA6544
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													<main id="main" class="content" style="min-height: 60rem" >NYAME BEKYERE SAWMILLS LTD. &amp; 2 ORS.<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>GHANA RED CROSS SOCIETY &amp; ANOR.<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO: H1/157/08&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: 26TH MARCH 2009<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
FRANK DONKOR FOR THE DEFENDANT/APPELLANT <o:p></o:p>

MR.
BRIGHT OKYERE AGYEKUM FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>A. ASARE KORANG, J.A.
(PRESIDING) ,F. KUSI-APPIAH, J.A., V. D. OFOE, J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>KUSI-APPIAH, J.A.<o:p></o:p>&nbsp;This is an appeal against the ruling of an
Accra High Court presided over by Her Ladyship B. Agyemang-Bempah (Mrs.) refusing
an application for leave to amend paragraph 2 of the statement of defence by
the defendant.<o:p></o:p>&nbsp;On the 30th March 2006, the
plaintiffs-respondents (hereinafter called the plaintiffs) acting through their
solicitor issued a writ against the defendants/appellants (hereinafter referred
to as defendants) for the following reliefs: <o:p></o:p>“a General damages for personal
injuries, pain and suffering, loss of amenities of life and prospective loss of
earnings suffered by the 2nd and 3rd Defendants. <o:p></o:p>b Special damages for the replacement
of the Mercedes Benz motor vehicle with registration number GR2999S at the cost
of ¢200,000,000. <o:p></o:p>c Special damages suffered by the 2nd
Plaintiff and 3rd Plaintiff from the date of the said accident until the date
of judgment. <o:p></o:p>d Interest thereon from the date of
order until the date of payment at the prevailing bank rate.<o:p></o:p>&nbsp;e Costs and such further order or orders as
this Honourable Court deems fits.”<o:p></o:p>&nbsp;The facts which gave rise to this action were
as follows: On or about 6th of April 2003, the second defendant, then in charge
of the first defendant’s Toyota Land Cruiser with Registration No. GR3153R
negligently drove the said vehicle on the Nkawkaw-Anyinam road. On reaching a
section of the road around Mpraeso Amanfrom he negligently ran his vehicle into
the first plaintiff’s Mercedes Benz car with Registration No. GR2999S. By
reason of the said accident, the second and third plaintiffs who were driver and
a passenger respectively in the plaintiff’s car sustained injuries. The first
plaintiff’s car was said to have been damaged beyond repair.<o:p></o:p>&nbsp;The driver of the Toyota Land Cruiser pleaded
guilty to careless driving and negligently causing harm and was consequently
convicted and sentenced to a fine by the District Court, Nkawkaw on 2nd of
April, 2004.<o:p></o:p>&nbsp;The parties filed their pleadings before the
court and when pleadings in the case closed, the suit was set down for hearing.
Subsequently, on 4th July 2006 the second plaintiff started giving evidence
before the High Court on his own behalf and on behalf of the first plaintiff. <o:p></o:p>After
his evidence in chief, the stage was then set for learned counsel for the
defendants to commence his cross-examination of the second plaintiff. In the
process counsel for the defendants sought to challenge the second plaintiff on
matters hitherto admitted by the defendants in their pleadings. <o:p></o:p>Counsel
for the plaintiffs rightly raised objection to that line of cross-examination
of the second plaintiff by counsel for the defendants.<o:p></o:p>&nbsp;On the next adjourned date, the defendants
filed a motion on notice for leave to amend their statement of defence pursuant
to Order 16 rule 5 (1) of C.I .47. <o:p></o:p>The
learned trial Judge heard arguments for the application from counsel for the
parties. On 15th of February, 2007 the trial Judge in the exercise of her
discretion refused the application for leave to amend paragraph 2 but granted
the application for amendment in respect of paragraph 11 of their statement of
defence. <o:p></o:p>Dissatisfied
with the ruling of the trial court refusing their application to amend
paragraph 2 of their statement of defence, the defendants have appealed. The
only ground of appeal as contained in the notice filed on 27th February, 2007
was as follows: <o:p></o:p>“That the court erred when it
dismissed the defendant’s application to amend by adding paragraph 2 as stated
in the affidavit in support of the motion for leave to amend.”<o:p></o:p>&nbsp;Arguing the appeal, counsel for the defendants
submitted that as a general rule the courts will allow an amendment at any time
of the proceedings and even on appeal so as to determine the real question in
controversy. He referred to the case of CROPPER VRS. SMITH (1884) 26 Ch.D.700
at pages 710-711 where BOWEN L.J. said:<o:p></o:p>