IVY AKUSUAL LAMPTEY vs. MOHAMMED ODARTEY LAMPTEY [2009]DLHC5591

Date	2009-04-07
Suit No.	SUIT NO: BMISC 58/08
Citation No.	[2009]DLHC5591

JUSTICE KWABENA ASUMAN-ADU

[2009]DLHC5591
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													<main id="main" class="content" style="min-height: 60rem" >IVY AKUSUAL LAMPTEY<o:p></o:p>(PETITIONER)<o:p></o:p>vs.<o:p></o:p>MOHAMMED ODARTEY
LAMPTEY<o:p></o:p>(RESPNDENT)<o:p></o:p>[HIGH COURT (INDUSTRIAL/LABOUR DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO: BMISC 58/08&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 7TH APRIL,
2009<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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JUSTICE KWABENA ASUMAN-ADU<o:p></o:p>

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

</div>This ruling is in respect of an
application for leave to amend petition under Order 65 R 11 filed on 13th February, 2009.<o:p></o:p><o:p>&nbsp;</o:p>According to the petitioner, she
filed a petition against the respondent on 30th January, 2008. In
the said petition, she did not plead certain facts that would assist both
parties and the court in the adjudication of the case. This was because at the
time she filed her petition, she was not in the best of health, so she was not
in the position to remember all facts which should have been pleaded.<o:p></o:p><o:p>&nbsp;</o:p>According to her, the intended
amendments have been brought in good faith and will assist the court in the
fair trial of the case. So the application should be granted.<o:p></o:p><o:p>&nbsp;</o:p>The respondent opposed the
application in an Affidavit in opposition filed on 25th February,
2009.<o:p></o:p><o:p>&nbsp;</o:p>According to him, the application is
dishonestly brought and the court should not grant such application. This is
because the petitioner averred in her petition that she was married to the
respondent in accordance with Islamic rites which the respondent admitted but
averred that the marriage was not registered so by Section 9 of Cap 129 it is void. The instant application,
therefore, seeks to introduce a new fact that prior to the void marriage, there
was a Ga customary marriage between the parties. <o:p></o:p><o:p>&nbsp;</o:p>The petitioner therefore argues that
the parties contracted two potentially polygamous marriages in February 1995.
This point is argumentative which should not form part of pleadings. Also, the
parties contracted only one marriage which has been confirmed by the Ghana
Muslim Mission. The parties agreed by Exhibit “N1” that the said marriage
between them would only be dissolved by an Authority on Islamic Law. So the
current application is purposed to circumvent the restriction imposed by law on
the dissolution of unregistered Islamic marriages by the Law Courts. The
application is, therefore, brought in bad faith and it must be dismissed. According
to him, the intended amendment is not true and should not be allowed.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the respondent referred
the court to the Supreme Court Practice
20/5 to 8/23 at page 368. He also referred the court to the case of Lawrence vs. Lord Norreys 1887 Chancery
Division 213 and the case of Sinclair
vs. James 1894 Chancery Division
at page 554 and concluded that based on the said authorities the
amendment should be disallowed.<o:p></o:p><o:p>&nbsp;</o:p>Either party to a suit is ordinarily
given leave to make such amendment as is reasonably necessary for the due
presentation of his case, provided that there has been no undue delay on his
part, and provided also that the amendment will not injure his opponent or
affect his vested rights. Where the amendment is necessary to enable justice to
be done between the parties, it will be allowed on terms even at a late stage. See
“Odgers on High Court Pleading and
Practice” 23rd Edition by D. B. Casson, page 199. The same
book quotes from the case of Hunt vs.
Rice &amp; Son Ltd. (1937) 53 T.L.R 931 as follows: “However negligent
or careless may have been the first omission and, however, late the proposed
amendment, the amendment should be allowed if it can be made without injustice
to the other side. There is no injustice if the other side can be compensated
by costs, but if the amendment will put them into such a position that they
must be injured,</main>