EDMUND TORTO (PLAINTIFF) vs. ALICE OFOSUA MILLS AND THE CHIEF REGISTRAR (CIRCUIT COURT, ACCRA) (DEFENDANTS) [2012]DLHC7455

EDMUND TORTO (PLAINTIFF) vs. ALICE OFOSUA MILLS AND THE CHIEF REGISTRAR (CIRCUIT... [2012]DLHC7455

Date	2012-06-12
Suit No.	SUIT NO. BMISC 902/2010
Citation No.	[2012]DLHC7455

HIS LORDSHIP JUSTICE PETER DEI OFEI

[2012]DLHC7455
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													<main id="main" class="content" style="min-height: 60rem" >EDMUND TORTO<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ALICE OFOSUA MILLS AND THE CHIEF REGISTRAR (CIRCUIT COURT,
ACCRA)<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. BMISC 902/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
12TH JUNE, 2012<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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HIS LORDSHIP JUSTICE PETER
DEI OFEI<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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</div>The Plaintiff is by this application on
notice praying this Honourable Court for leave to amend the title of the Writ
of Summons. <o:p></o:p>The stage of the case is that both parties
have closed their respective cases. The state the case has reached will be
immaterial in an application for leave to amend the title. This was the
decision of the Ghana Muslims Representative Council Vrs. Salifu reported in
the [1975] 2 GLR 246 Holding 3. It was held among other things that; <o:p></o:p>"The
representative capacity of the party should also be stated in the title of both
the writ and the statement of claim and not merely in the endorsement of the
writ on the body of the pleading. However, where it appeared in the trial in a
representative action that the Plaintiff had failed to state the representative
capacity of the parties, as in the instant case, the court would give leave
even at this late stage to amend either the writ or subsequent pleadings by
adding a statement that the Plaintiff was suing on behalf of himself and all
others of the defined class and the capacity in which the Plaintiffs sued and
the defendants were sued." <o:p></o:p>Order 16 rule 5(3) &amp; (4) provide
that:---- <o:p></o:p>"(3)
An amendment to correct the name of a party may be allowed under sub rule (2)
notwithstanding that it is alleged that the effect of the amendment will be to
substitute a new party if the court is satisfied that the mistake sought to be
corrected was a genuine mistake and was not misleading or such as to cause any
reasonable doubt as to the identity of the person intending to sue or intended
to be sued." <o:p></o:p>"4.
An amendment to alter the capacity in which a party sues may be allowed under
sub rule (2) if the new capacity is one which that party had at the date of the
commencement of the proceedings or has since acquired." <o:p></o:p>The Plaintiff endorsed his writ of summons
filed on 13/9/2010 with The following reliefs; <o:p></o:p>1. A
declaration that by virtue of the Judgment of the High Court titled "(1)
Geoffrey Aduama Vrs. Alice Ofosua Mills dated the 11th day of July 1988, Eton
Complex Schools Ltd. are the bonafide owners of the land on which the Schools
presently stands. <o:p></o:p>2.
An order of court setting aside any Judgment obtained by Defendant in respect
of the land. <o:p></o:p>3.
An order of the court to declare any certificate of registration obtained by
Defendant in respect of the land null and void. <o:p></o:p>4.
Perpetual injunction restraining Defendant by herself, her Assigns and agents
from asserting adverse title to the Eton Complex Schools Land." <o:p></o:p>It could be clearly seen from the above
reliefs that Plaintiff is not claiming any personal relief but he is rather
acting for and on behalf of the Eton Complex School Ltd. The School cannot act
by itself except to act through the blood and fresh of persons who have
interest in the School. <o:p></o:p>The evidence so far adduced at the trial is
all about ownership of the land on which the School is located and that is the
exact endorsements on the Writ of Summons as have been quoted above. It is abvious
therefore that the proposed amendment will not in any way prejudice the 1st
Defendant's case or delay the proceedings<o:p></o:p>The leave for amendment or the proposed
amendment is supported by the Rules of Court as have been indicated above. <o:p></o:p>Furthermore the case of ROBERTSON VRS. NII
AKRAMAH 11 and Other (CONSOLIDATED) [1973] 1 GLR 445 Holding (3); supports the
grant. <o:p></o:p>If a
Plaintiff sued in the wrong capacity, but some other capacity was disclosed
which would have enabled him to maintain the suit, he should not be non-suited
but the court should allow all amendments necessary for the purpose of settling
the real controversy between the parties." <o:p></o:p>As I have indicated above the evidence
adduced at the court was either in support or against the land on which the Eton
Complex Schools Ltd. is situated. The School as a limited Liability Company is
a juridical person with legal capacity to sue and be sued in its corporate
name. <o:p></o:p>This instant application is therefore in its
rightful perspective and would be granted leave to amend the title of the writ
by substituting "Eton Complex Schools Ltd." in place of the name of
the original Plaintiff. <o:p></o:p>The late stage at which this leave is being
sought attracts costs and I award GH¢800.00 costs in favour of the 1st
defendant. <o:p></o:p>

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