BARCLAYS BANK GHANA LTD. vs. MARKET DIRECT LTD AND OTHERS [2017]DLHC3752

Date	2017-03-01
Suit No.	SUIT NO. CM/0125/16
Citation No.	[2017]DLHC3752

ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

PARTIES ABSENT MAXWELL LOGAN ESQ. WITH SIKA AGGREY FOR PLAINTIFF

PRESENT JOHNSON NORMESINU FOR SAMUEL CODJOE FOR DEFENDANT

[2017]DLHC3752
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													<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>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; &nbsp; &nbsp; 1ST MARCH, 2017<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

</div>COUNSEL:<o:p></o:p>PARTIES ABSENT MAXWELL LOGAN, ESQ. WITH SIKA AGGREY FOR
PLAINTIFF&nbsp; &nbsp;PRESENT JOHNSON NORMESINU FOR SAMUEL CODJOE
FOR DEFENDANT &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<o:p>&nbsp;</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:none;border-bottom:solid windowtext 1.5pt;
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</div>RULING<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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><o:p>&nbsp;</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.
Plaintiff 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. Even if the
court were to be wrong on this finding, does it automatically mean that 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>“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>&nbsp;<o:p></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
com</main>