KOJO AWARE AHINKORA vs. NICHOLAS DANSO AND MICHEAL ANKRAH [2010]DLHC4187

Date	2010-05-12
Suit No.	SUIT NO.B.MISC 938/2008
Citation No.	[2010]DLHC4187

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

CHARLES HABIAH FOR THE PETITIONER

NII BRUCE THOMPSON FOR THE 2ND RESPONDENT

[2010]DLHC4187
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													<main id="main" class="content" style="min-height: 60rem" >KOJO AWARE AHINKORA<o:p></o:p>vs.<o:p></o:p>NICHOLAS DANSO AND
MICHEAL ANKRAH<o:p></o:p>[HIGH
COURT (FINANCIAL DIVISION ONE), 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.B.MISC 938/2008&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: 12TH MAY, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CHARLES
HABIAH FOR THE PETITIONER<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NII
BRUCE THOMPSON FOR THE 2ND RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE P. BRIGHT MENSAH<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>This
is an application by Counsel for and on behalf of the Petitioner herein praying
for leave to file supplementary affidavit to a substantive affidavit filed by
him on the 6th day of July, 2009. <o:p></o:p>The
main thrust of the application is that prior to the incorporation of A2
Associates Ltd, the 1st Respondent, Nicholas Danso had sent to the 2nd
Respondent, Micheal Ankrah the sum of US$5000 for him to purchase a smaller
printing machine.&nbsp; The amount represents
Nicholas Danso’s share as a 20% shareholder in the company quite apart from
$31,000 multipurpose heavy duty printing machine that Danso loaned to the
company.<o:p></o:p>Arguing
in support of the Motion, learned Counsel for the Petitioner/ Applicant did
refer the court to Orders 19 r 1 and 16 r 5(1) of the High Court (Civil
Procedure) Rules, 2004 (CI 47) and submitted that the proposed affidavit, if
allowed, will demonstrate that Nicholas Danso had apart from $31,000 heavy duty
machine he supplied to A2 Associates Ltd, had earlier to the incorporation of
the company given $5000 to Micheal Ankrah.&nbsp;
According to counsel, that represented Danso’s shareholding in the
company.<o:p></o:p>He
stated the principle that an amendment can be made at any time of the
proceedings and that the application is not meant to take 2nd Respondent by
surprise.&nbsp; Referring to the Affidavit In
Opposition, Mr Charles Habiah submitted that the proposed affidavit is not an
afterthought and also not meant to overreach anyone.<o:p></o:p>Opposing
the application, Mr Nii Bruce Thompson referred the court to GANDAAH v GANDAAH
(1989-90)&nbsp; 2 GLR 58 and submitted with
quite an amount of force that since the alleged facts which the
Petitioner/applicant seeks to rely on existed before initiation of the present
case the application ought to be refused.&nbsp;
Indeed it is his contention that not only is the application meant to
overreach the court and 2nd Respondent but also an afterthought.&nbsp; He recalled that the 2nd Respondent has given
his evidence and has been discharged and that this case being tried on
affidavit evidence it will be difficult for the 2rd respondent to be able to
react to the fresh evidence or facts which Petitioner seeks to introduce. <o:p></o:p>Concluding,
learned Counsel argued that if the application is allowed it will seriously
prejudice their case.&nbsp; He therefore
prayed that the application be dismissed.<o:p></o:p>Ordinarily,
a party can amend at any time in the course of the trial and even on
appeal.&nbsp; That power inherent in the
courts to allow amendments is to meet the justice of a particular case.&nbsp; There are several decisions in our case law
to the effect that amendment can be made even after judgment.&nbsp; That this principle of law has enjoyed a
sustained application by the courts cannot be overemphasized.&nbsp; In espousing the law on this point AIKINS JSC
(as he then was) stated in GHANA PORTS &amp; HARBOURS AUTHORITY v ETS KABORE
ISSOUFOU (1992-93) GBR 24 at 32 as follows:<o:p></o:p>&nbsp;“………since the power to make such amendments
rests in the inherent jurisdiction of the courts, the courts can, when the
issue is raised either in the trial court any time after judgment is delivered
or in the appellate court on the application of a party to the suit (orally or otherwise),
grant such amendments as are necessary to meet the justice of the case.”<o:p></o:p>So
broadly speaking, an amendment may be made at any time.&nbsp; Order 16 r 5(1)(b) of CI 47 enacts that a
party may be at liberty to amend a pleading on such terms as to costs or
otherwise as may be just and in such manner as the court may direct.&nbsp; And by rules of procedure, a petition falls
within that category of cases which may be amended.&nbsp; It needs stressing, however, that where the
amendment seeks to prejudice the opponent’s case or to do any injury to it, the
rule is that the court should sparingly grant such amendment.&nbsp; See:&nbsp;
IN RE ASHALLEY BOTWE LANDS (2005-2006) SCGLR 420.<o:p></o:p>In
that case Her Ladyship Georgina Wood JSC (as she then was) in stating the rule
said at pp 434-435 that where the amendment sought shall prejudice or cause
irreparable damage to the case of the other party the application ought to be
refused.<o:p></o:p>It
may be desirable to state that this settled principle as re-echoed by our
Supreme Court in IN RE ASHALLEY BOTWE LANDS(supra)&nbsp; had earlier been established in the English
case of WELDON v NEAL (1887) 19 QBD 394 wherein Lord Esher MR postulated the
law at p.395 as follows:<o:p></o:p>&nbsp;“We must act on the settled rule of practice,
which is that amendments, are not admissible when they prejudice the rights of
the opposite party as existing at the date of such amendment………………………….”<o:p></o:p>In
the instant case, it is quite clear that the evidence or facts which the
Petitioner/Applicant seeks to introduce now had allegedly existed long before
he brought this instant petition to court.&nbsp;
All along he had this information under his sleeves.&nbsp; Why he chose to spring it out at this stage
of the proceedings when the 2nd Respondent had closed his case, has not been
explained to the court with any degree of conviction.&nbsp; It is either that Kojo Oware Ahinkorah wants
to overreach the other party or that this application is not being brought in
good faith.&nbsp; On this ground alone and on
the authorities of GANDAAH v GANDAH (supra) and YEBOA v BOFOUR</main>