AUGUSTINA DANKWAH AND OTHERS vs. EXPRESS LINK MICRO FIN. & ANOR [2017]DLHC4151

Date	2017-06-06
Suit No.	SUIT NO. BFS 261/2015
Citation No.	[2017]DLHC4151

DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE

DANIEL SEKYERE FOR THE DEFENDANTS/APPLICANTS

NANA KWASI BOATEY FOR THE PLAINTIFFS/RESPONDENTS

[2017]DLHC4151
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINA DANKWAH AND
OTHERS<o:p></o:p>vs.<o:p></o:p>EXPRESS LINK MICRO FIN. &amp; ANOR <o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. BFS 261/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
6TH
JUNE, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>DANIEL SEKYERE FOR THE
DEFENDANTS/APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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<p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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mso-pagination:none;mso-layout-grid-align:none;text-autospace:none;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This is a motion on notice
praying this Honourable Court for leave to amend the statement of defence of
the defendants pursuant to Order 16 rule 5 of the High Court (Civil Procedure)
Rules, 2004 (CI 47).<o:p></o:p>The Defendants/Applicants
have filed the instant application and the grounds of the application are
contained in the Affidavit in Support filed on the 19th of April,
2017. The gravamen of the applicants’ motion per the affidavit is that the
proposed amendment contains relevant pleadings that are crucial to the final
determination of the case. <o:p></o:p>The Plaintiffs/Respondents
are opposed to the application and have demonstrated the grounds in an
affidavit in opposition filed on 11th of May, 2017. The import of
the Respondents’ opposition is among other things that the amendment seeks to
change the case of the defendants and that the move will further embarrass the
trial of the case considering the stage which the case has reached. <o:p></o:p>Counsel for the applicants
moved the motion in terms of the motion paper, the supporting affidavit and the
annexures.&nbsp; He submitted that the
amendment has become necessary due to the fact that the applicant discovered
during the case management conference that some relevant facts which ought to
have been pleaded were omitted in the statement of defence.&nbsp; They therefore thought it necessary and
expedient and in the interest of the justice of the case to pray the Court to
amend the defence to reflect those issues.&nbsp;
He submitted that the proposed amended statement of defence has been
attached for the perusal of the Court.&nbsp; Counsel
further submitted that the application is not meant to spring a surprise on any
party or set out a new case and that the amended portions arise out of the same
set of facts of the case and the omission was inadvertent.&nbsp; Counsel stated that the application is also
not intended to cause any delay in the proceedings, as the Respondents sought
to project in the affidavit in opposition.&nbsp;
Justice demands that all issues in controversy are completely and fairly
determined in the case and this is what the application is meant to achieve.&nbsp; Counsel submitted that the trial is yet to
commence and even if the trial has commenced the law allows them to amend the
statement of defence at any time before the trial commences and ends.&nbsp; The Court has the discretion to grant leave
for us to amend.&nbsp; He cited the case of Yeboah &amp; Anor v Bofour(1971) 2 GLR
199 – 226at holding 7 &amp; 8. He invited the court to exercise its discretion
in favour of the defendants/applicants by granting them leave to amend their
statement of defence. <o:p></o:p>In response, counsel for
the Plaintiffs/Respondents submitted that an entirely new area of civil
jurisprudence is currently in operation, as the introduction of the High Court
(Civil Procedure) (Amendment) Rules, 2014 (CI 87) into our civil procedure
jurisprudence has substantially altered the scope of amendments. Under the
current dispensation, a party is required to file a pre-trial checklist and in
the check list if he seeks to amend his pleadings he is enjoined to give
notice. In the schedule 13 of CI47 which introduces the pre-trial check list,
the 1st question that a party is required to answer reads: “Do you intend to
make any amendment to your pleading?” He submitted that a party who answers
“No” to that question is estopped by section 23 of the Evidence Act in terms of
the conduct from subsequently coming to court with an application of this
nature, especially when that answer given remains "No".<o:p></o:p>Counsel further submitted
that in the instance case, the defendant filed the Pre-Trial Check List on 9th
December 2016 and answered “No” in respect of question 1a. The 2nd question was
answered as “not applicable”. Counsel argued that after giving those answers
the defendants are estopped from amending the Statement of Defence. Counsel further
submitted that because CI87 is a more recent statute and as such where its
provisions are viewed as conflicting with provisions of CI 47 which is an
earlier statute, the CI47 must be deemed to have been amended by the CI 87. In
that regard counsel submitted that the phrase “at any stage” as used in Order
16 rule 5 (1) (b) of CI47 is subject to the party giving notice in the Pre-trialCheck
List as to the time that amendment would be made if any at all.<o:p></o:p>Counsel also submitted
that the application itself has been brought in utter bad faith and ought to be
refused. This is because the facts that are being sought to be introduced into
the pleadings were earlier on sneaked into the witness statement of the party
and has been deposed to in paragraph 10 of the affidavit in oppositio</main>