SACHIN NAMBEEAR vs. ASHOK KUMAR SIVARAM AND JAI –MAI COMMUNICATIONS LTD [2017]DLHC3477

Date	2017-12-18
Suit No.	SUIT NO.CM/ACC/0037/17
Citation No.	[2017]DLHC3477

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2017]DLHC3477
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">SACHIN
NAMBEEAR<o:p></o:p></a>vs.<o:p></o:p>ASHOK KUMAR SIVARAM AND JAI –MAI COMMUNICATIONS LTD<o:p></o:p>&nbsp;[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/ACC/0037/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 18TH OCTOBER, 2017<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;
padding:0in 0in 1.0pt 0in">

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<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>The Plaintiff seeks in this application leave to amend
the writ and the statement of claim. More specifically he seeks an order to
delete relief h and to amend relief (e) to read as follows: <o:p></o:p>“(e) An order
for the valuation of 2nd defendant and the shares of Plaintiff and 1st
defendant in 2nd defendant by a valuer (being an accounting firm)
for plaintiff to buy out 1st defendant’s shares in 2nd
defendant”.<o:p></o:p>He has also deposed to some proposed amendments he
intends to make to the statement of claim. 1st Defendant, however,
has vehemently opposed the application for leave for the proposed amendments
that plaintiff seeks before the court claiming that the application has been
brought in bad faith with intent to undermine the order of the court for the
valuation of the assets of the 2nd defendant company as according to
1st defendant the proposed amendment is an afterthought born out of new
facts.<o:p></o:p><o:p>&nbsp;</o:p>1st defendant further claim that plaintiff
had already sought an order for the valuation of the 2nd defendant
company and the shares of plaintiff in 2nd defendant for a buyout of
plaintiff’s shares in the company. And to allow plaintiff to amend this relief
would amount to a complete departure from his own relief sought as well as his
pleadings.<o:p></o:p><o:p>&nbsp;</o:p>What then is the law on amendment of writ and
pleadings?<o:p></o:p><o:p>&nbsp;</o:p>Order 16 rule 5(1) of the High Court (Civil Procedure)
Rules states as follows:<o:p></o:p><o:p>&nbsp;</o:p>5 (1) Subject
to order 4 rules 4 and 5 and to the following provisions of this rule, the
court may at any stage of the proceedings upon an application by the plaintiff
or any other party grant leave to<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;mso-ansi-language:EN-US">(a)&nbsp;&nbsp;&nbsp;
The plaintiff to amend the plaintiff’s writ<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;mso-ansi-language:EN-US">(b)&nbsp;&nbsp;&nbsp;
Any other party to amend the party’s pleading; on such
terms as to costs or otherwise as may be just in such a manner as it may direct.<o:p></o:p>From the provisions supra leave may be granted a
plaintiff or a party to amend the party’s writ or the pleadings if it is
necessary for the purpose of determining the real questions in controversy
between the parties. And that if an amendment is being sought to bring 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>There are some grounds spelt out in the case of YEBOA v BOFOUR [1971] 2GLR 199. Those grounds
or factors are to be evaluated in exercise of the discretion of the Judge in
making a decision as to grant or refuse the application. The grounds spelt out
include among others, are: if no surprise will result from the intended
amendment, if it will not enable a party to set up an entirely new case or to
change completely the nature of his case; if it is not to add new parties, if it
will not do any injury to the case of the opponent or prejudice him in a way
that cannot be compensated for by cost, that the application had been brought
bona fide and finally the proposed amendment will not cause undue delay. See
also the case of OMAR BAKSMATY v
SECURITY DISCOUNT COMPANY LTD. </main>