BARCLAYS BANK GHANA LTD vs. MARKET DIRECT LTD AND OTHERS [2017]DLHC3311

Date	2017-03-01
Suit No.	SUIT NO. CM/0125/16
Citation No.	[2017]DLHC3311

ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

[2017]DLHC3311
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >BARCLAYS BANK GHANA LTD<o:p></o:p>vs.<o:p></o:p>MARKET DIRECT LTD AND OTHERS<o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO.
CM/0125/16&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 1ST
MARCH, 2017<o:p></o:p>

</div>CORAM:<o:p></o:p>ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>Defendant/Applicants seeks leave to amend certain
portions of its statement of defence as pleadings has closed and defendant can
only effect an amendment after leave has been granted by the court. <o:p></o:p>Plaintiff/Respondent has vehemently opposed the
application as not permitted by the rules of procedure. According to plaintiff,
though the application appears to be in the nature of motion for amendment, yet
it is a back door attempt by defendant to withdraw an admission that defendant
had earlier made and which plaintiff believe is contrary to the rules of court.
palintiff gives substance to this claim by stating that it filed and served on
defendant discoveries in the nature of notice to admit documents and among some
of the documents plaintiff called on defendant to admit was a document of the
overdraft account of defendant that showed the level of indebtedness of
defendant. Plaintiff counsel contends that Defendant in its response failed to
admit or deny the authenticity of the overdraft account. And having so failed
to positively admit the said statement and its content, defendant is deemed to
have so admitted the document. And in that respect the only way such admission
could be withdrawn, according to counsel for plaintiff, is for defendant to
write to plaintiff for its consent to withdraw the admission and not to seek to
amend its pleadings in terms of Order 16 of the High Court (Civil Procedure)
Rules, C. I 47.<o:p></o:p><o:p>&nbsp;</o:p>A critical examination of the record of the would show
that in response to notice to admit, defendant responded and made certain
specific admissions on the 6th of May, 2016 but that the admissions
did not include the overdraft document that counsel for plaintiff seeks to rely
on now. Rule 3 of Order 23 of C. I. 47 notes that where a party on whom notice
to admit fail to file a response that failure shall be deemed to constitute an
admission. As far as the notice to admit of plaintiff was concerned, there was
a response to that notice which was duly filed by defendant and the claim that
there was no response, in the view of the court is not tenable.<o:p></o:p><o:p>&nbsp;</o:p>Even if the court were to be wrong on this finding,
does it automatically mean that&nbsp; &nbsp;where there is a failure to admit a fact,
which the rules say is deemed to constitutes an admission, a party is debarred
from proceeding under Order 16 to effect amendment, unless there has been a
request served to seek consent to withdraw an admission as is being canvassed
by Logan, Esq?<o:p></o:p><o:p>&nbsp;</o:p>It is stated under Rule 5 of Order 23 of the High
Court (Civil Procedure) Rules, C. I. 47 as follows that:<o:p></o:p><o:p>&nbsp;</o:p>“An
admission made in response to a request to admit an admission under rule 2 or
an admission in a pleading may be withdrawn on consent or with leave of the
Court”.<o:p></o:p><o:p>&nbsp;</o:p>I
do not find the conduct of applicant as amounting to admission and if it was an
admission, there is nothing in the provision supra that say that a party is
unable to amend its pleadings. For a conduct or statement to constitute an
admission it must be clear and unequivocal but not one that may be the subject
of variant interpretation. There were seven documents that plaintiff called on
defendant to admit its existence and defendant duly responded by commenting on
five of them. Could it be that the failure to comment on the other two may be
as a result of pure omission or inadvertence rather than the interpretation
that counsel for plaintiff place on it that defendant admitted them? <o:p></o:p><o:p>&nbsp;</o:p>Rule
5 is in respect of the admission made, that a party that made the admission may
seek the consent of its opponent to withdraw same and upon failure seek the
leave of the court. The operative word there is ‘may’ and is not even cast in imperative terms. <o:p></o:p>I
come to this conclusion due to the manner and nature of the right of amendment
under Order 16 Rule 5 of C. I. 47. The circumstances under which application
for leave to amend may be refused by the court has been adumbrated over the
years in a number of cases. Such that if an amendment is being sought for the purpose of bringing out all the issues in
controversy then the court has no option than to grant such a prayer. See the
case of MAHAMA HAUSA v BAAKO HAUSA
[1972] 2 GLR 469 CA. <o:p></o:p><o:p>&nbsp;</o:p>