BEDSTUY LIMITED vs PHOENIX POWER [2018]DLHC16169

Date	2018-05-10
Suit No.	SUIT NO: GJ/872/2016
Citation No.	[2018]DLHC16169

HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO

NANA AGYEI BAFFOUR AWUAH

MR. BOBBY BANSON

AMA ASARE KORANG

[2018]DLHC16169
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													<main id="main" class="content" style="min-height: 60rem" >BEDSTUY LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>PHOENIX POWER<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO:
GJ/872/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 10TH MAY, 2018<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>NANA AGYEI BAFFOUR AWUAH FOR THE PLAINTIFF/
APPLICANT – PRESENT <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

MR.
BOBBY BANSON WITH AMA ASARE KORANG FOR THE DEFENDANT/ APPLICANT – PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE KWEKU T.
ACKAAH-BOAFO<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;Introduction:
<o:p></o:p>[1] Traditionally,
an application for an amendment of a writ or a pleading may be made at any
stage of the proceedings. A party may, without leave of the court, amend
his/her writ at any time before the pleadings are closed. It follows,
therefore, that when pleadings are closed any party shall amend only with the
leave of the court.<o:p></o:p>[2]
In this instant case,
pleadings have long closed and thus, any application for amendment of the
statement of claim and writ of summons shall be by leave of the court as the
Court. <o:p></o:p>&nbsp;[3] As
it is provided in Order 16 r 5(1) of CI 47, subject to Order 4 rules
5&amp;6 and other provisions of the 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>(a) the Plaintiff to amend the
Plaintiff’s writ; or <o:p></o:p>(b) any party to amend the
party’s pleading; <o:p></o:p>on
such terms as to costs or otherwise as may be just and in such manner as it may
direct.<o:p></o:p>[4] By
a Motion on Notice filed on April 6, 2018 the Plaintiff/Applicant seeks leave
of the court to amend the Writ of Summons and the Statement of Claim of this
suit. The grounds upon which this instant application is being made are
catalogued in the accompanying affidavit. It has been averred that the
amendment is necessary as it would assist this Honourable Court to effectively
and completely determine and adjudicate on all the issues in this suit”.<o:p></o:p>Arguments
for and against Application:<o:p></o:p>5]
In moving the
application, learned Counsel for the Plaintiff/Applicant, Mr. Baffour Awuah
relied on all the averments as set out in the accompanying affidavit and
submitted that at all material times the Applicant has been under the
impression that the Defendant was a limited liability company and therefore in
both the Writ of Summons and the Amended Statement of Claim, it held and
addressed the Defendant as such. According to learned Counsel following a
search conducted at the Registrar General’s Department a copy of which is
attached as Exhibit BD1, the Applicant discovered that Phoenix Power is
a business name and not a limited liability company. According to Counsel, the
effect is that there is a proprietor and the business person is one Tarek
Nasser and the parent company is Aba Group Ltd. Accordingly in Counsel’s
opinion if the amendment is made any judgment given may not be against the
wrong entity or person. <o:p></o:p>&nbsp;[6] Further
learned Counsel posited that the instant application which is anchored on a
search conducted at the Registrar General’s Department properly describes the
Defendant not as a limited liability
company but a business name owned by a sole proprietor known and referred to as
Mr. Tarek Nasser. To that extent, counsel submitted that for the complete and
effectual determination of the instant suit, the application ought to be
granted.<o:p></o:p>[7]
Having also referred
the court to Order 16 r 5 (3) Counsel submitted that the amendment is
necessary because it is to correct a genuine mistake made and to ensure that
equity and justice are done to the parties. According to Counsel, the Defendant
has misled the Court because in the witness statement filed, the said Tarek
Nasser has referred to himself as the “Managing Director” a designation left
for Limited Liability Companies. He also referred to the Affidavit in
Opposition and argued that the amendment is not brought in bad faith and not
intended to alter the description of the Defendant as alleged and not meant to
prejudice the Defendant’s case. Counsel submitted that no matter how one looks
at the matter, the Defendant’s designation ought to change and the Court may
even join “Tarek Nasser as a party because he is the proprietor of the
Defendant”. Learned counsel concluded that the amendment of this nature will be
in accordance with the rules of Court. He therefore prayed the Court to grant
the application. <o:p></o:p>&nbsp;