IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
CSC PARADISE ESTATE LTD & ORS - (Plaintiffs/Appellants)
IBRAHIM JAJAH & ORS -(Defendants/Respondents)
DATE: 1 ST MARCH, 2018
CIVIL APPEAL NO: H1/136/2017
JUDGES: F. G. KORBIEH JA (Presiding), B. F. ACKAH-YENSU JA, I. O. TANKO AMADU JA
MR. GEORGE THOMPSON FOR 1ST APPELLANT
MR. JAMES AHENKORAH FOR RESPONDENTS
BARBARA ACKAH-YENSU (Ms) JA
This is an interlocutory appeal from the Ruling of the High Court, Accra, delivered on 15th December, 2016. The 1st Plaintiff/Appellant (referred to hereinafter as the Appellant) prays this Court to set aside the Ruling and for the amendments sought by the Defendant/Respondents to be disallowed.
These are the antecedents of this case:
The Plaintiffs filed a joint Writ of Summons on 28th February, 2016 against the 1st Defendant/Respondent, making inter alia a claim for declaration that Appellant had not divested itself of its interest in the parcel of land lying at Oko Village near Dome, and that it still had title thereto. The Appellant asserted that by document registered as No.2627/1976, its grantor, Central Services Company Limited, acquired a large tract of land encompassing the land in dispute from the Onamrokor Adain family of Accra. Subsequently, Central Services Co. Ltd granted a sub-lease of the land to the Appellant for real estate development. 2nd Plaintiff, on the other hand, averred that he erroneously acquired a portion of the said land in 1976 from the Owoo Family of Oko Village. He immediately took possession of the land and built a fence wall around three sides. 2nd Plaintiff subsequently gave four plots of land within the portion he acquired to the 3rd Plaintiff who built two houses thereon and completed same in 2005. The 2nd Plaintiff also built two other houses on his portion of the land between 2004-2007. It was when the 2nd Plaintiff attempted to register the land that he realised that per the records of the Lands Commission, the land was actually owned by the Appellant. 2nd Plaintiff therefore approached the Appellant who accepted to regularise same for him and the 3rd Plaintiff. The case of all the Plaintiffs’ was that 1st Defendant had trespassed on the land in dispute.
Upon service of the writ on the 1st Defendant, he applied to join the 2nd Defendant on the ground that 2nd Defendant was the owner of the land and that he, 1st Defendant, was just the Managing Director of 2nd Defendant/Company. Attached to the Application was the 2nd Defendant’s deed of title which traced its root of title to the Appellant and its grantor, Central Services Co. Ltd. The Plaintiffs then filed an Amended Writ and Statement of Claim in which they stated that the document by which the 1st Plaintiff purportedly divested itself of its interest in the land to the 2nd Defendant’s grantor in 2005 bore a signature of one Mansour Abou-Chedid who died in the year 1985. Thus, any transaction founded on same, including the alleged assignment of the land, subject matter of this suit, to one Abdul Hamid Issaka and its subsequent assignment to the 2nd Defendant, is a child of fraud.
The original lawyer for the Defendants/Respondents filed a Statement of Defence in which, for the first time, they contended that they acquired the land in dispute from the Onamrokor Adain family. Application for Directions were taken on 12th February 2016. At the hearing of the Application, the learned trial Judge ordered the Plaintiffs to file their Witness Statements within ten (10) days. The Defendants/Respondents were to file theirs within 10 days after service of the Plaintiffs’ Witness Statements on them. The 2nd and 3rd Plaintiffs filed their joint Witness Statement on 9th March 2016 while the Appellant filed its Witness Statement on 23rd March 2016. In both Witness Statements, the Plaintiffs stated that the Onamrokor Adain family had no right to make a grant of the land to the Defendants/Respondents since they had already divested themselves of the same to Central Services Co. Ltd. The Defendants/Respondents did not file any Witness Statements as directed by the Court. Rather, on 11th May 2016, they filed a Notice of Change of Lawyer followed on 24th June 2016 by a Motion for Leave to Amend their Statement of Defence.
The application for amendment was strongly opposed by the Plaintiffs who maintained that it offended the rules of court and was an abuse of the court’s process, and brought in bad faith. And that, the application did not disclose which part, paragraph and/or wording of the Statement of Defence that they intended to amend as required by the rules of court. Also, that from the affidavit in support of the application, the only reason stated as to why the Defendants wanted an amendment was because their previous lawyer had withdrawn from the case. In their view therefore, what the Defendants were seeking to do with the proposed amendment was to reconstruct their pleadings to overreach the evidence that had been proffered as per the Plaintiffs’ Witness Statements.
Having heard the Parties on the application, the learned trial Judge granted the Defendant’s prayer and allowed the amendment. It is against the said Ruling that the present appeal has been brought by Appellant. The Appellant filed three (3) grounds of appeal. We reproduce them as follows:
a. The learned judge erred in law in allowing amendments which would serve no useful purpose.
b. The learned trial judge erred in allowing the 2nd Defendant to change the nature of the case.
c. The learned trial judge erred in arriving at the conclusion that the Defendants’ application for amendments was not brought in bad faith”.
We will consider all 3 grounds together as in our opinion they are inextricably linked and a finding on one will resolve all the issues arising therefrom.
This appeal deals with the old age issue of amendment of pleadings. The circumstances under which a court may grant or refuse leave to amend pleadings are clearly set out in Order 16 Rule 5 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). It reads:
“Subject to Order 4 rules 5 and 6 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
(a) The plaintiff to amend the plaintiff’s writ, or
(b) Any party to amend the party’s pleadings on such terms as to costs or otherwise as may be just and in such manner as it may direct”.
The Defendants/Respondents’ application to amend their Statement of Defence, was an invitation to the High Court to exercise a discretionary jurisdiction. The instant appeal is therefore against the discretion of the court below that was exercised when it granted the Application and allowed the amendments sought.
The well-known and time-honoured legal principle is that an appeal against a decision based on the exercise of a court’s discretionary jurisdiction would succeed in only those clearly exceptional cases where, in sum, the judge failed to act judicially. The applicable principle is that an appellate court would interfere with the exercise of discretion where the court below applied wrong principles, or the conclusions reached would work manifest injustice, or even that the discretion was exercised on wrong or inadequate material. See Ballmoos vrs Mensah [1984-86] 1 GLR 142; Kyenkyenhene vrs Adu [2003-2004) 1 SCGLR 142; and Sappor vrs Wigatap Ltd [2007-2008] SCGLR 677.
Well-settled principles on amendments to pleadings laid down in landmark English cases have historically been adopted and followed by the Ghanaian courts. The relevant case law confirms that the courts generally adopt a relatively permissive approach when exercising their discretion in this regard, allowing amendments to pleadings in most cases. The rationale behind this is that amendments to pleadings help to clarify disputed matters, determine the real controversy between the parties and avoid multiple proceedings.
In the often cited English case of Cropper vrs Smith  26 QBD 700 Bowen LJ, said:
“Now, I think it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their case ……. I know of no kind of error or mistake which, if not fraudulent …. the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding maters in controversy and I do not regard such amendments as a matter of favour of grace ….. it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice”.
In Yeboa vrs. Bofour  2 GLR 199, CA the Court of Appeal in dealing with an application for amendment under Order 28 of LN 140A enunciated the following general principles:
a. An application for amendment may be made as soon as the necessity arises, and as a general rule, the court will allow an amendment even up to the last moment provided that:
i. No surprise results;
ii. It does not enable a party to set up an entirely new case or to change completely the nature of his case: see Nkrumah vrs Serwah [1984-86] 1 GLR 190, CA and Robertson vrs Reindorf  2 GLR 289, CA;
iii. It will not do any injury to the opponent’s case or prejudice him in some way which cannot be compensated by costs or otherwise;
iv. The application be made bona fide: see Deegbe vrs Nsiah [1984-86] 1 GLR 545, CA and Lartey and Lartey Ltd vrs Beany [1987-88] 1 GLR 590, CA and
v. The proposed amendment will not cause undue delay or is not irrelevant or useless or would not merely raise a technical point: see Gandaa vrs Gandaa [1989-90] 2 GLR 58.
b. The grant or refusal of an application for leave to amend pleadings, even at the last moment in the proceedings, is a matter entirely within the discretion of the trial court and the discretion to allow or refuse an amendment should be exercised in order that the real issues between the parties may be finally determined: see Laryea vrs Oforiwah [1984-86] 2 GLR 410, CA and Ababio IV vrs Quartey  PC, 74-28, 40.
c. However, a court will not grant leave to amend the pleadings after a final decree or entry of judgment.
Under the new High Court (Civil Procedure Rules, 2004 (C.I.47)) the fundamental criteria to which the court must have regard can be gleaned from what may be called the overriding objective of the rules as set out in in Or. 1 (2). It is part of the court’s case management function to identify the issues at an early stage in the proceedings, and the court will to a considerable extent depend on the pleadings in carrying out that function. As the litigation proceeds, the court will continue to be guided by the issues set out in the pleadings when making decisions as to allocation, disclosure, and exchange of witness statements and other evidence.
The principles regarding the amendment of pleadings are settled. Our adjectival law leans heavily in favour of amendments and is generally against the refusal of amendments. Although the pendulum swings and tilts in favour of granting amendments, courts of law are entitled to refuse amendments in deserving cases. Trial courts must examine the application for amendment very carefully on the basis of the affidavit evidence. In that exercise, the courts will consider the peculiar facts of each case.
It follows that as a general principle, whilst there is a power to allow an amendment at any stage of the proceedings, the court may be increasingly reluctant, as the case proceeds, to allow amendments which change or redefine the issues. In exercising its discretion therefore, the court will consider amongst others, the stage of progress of the litigation, as well as proportionality and the other factors defining the overriding objective.
Ultimately, courts aim to do justice. In order to achieve this, the court will look at the facts of each particular case and exercise its discretion, guided by the known principles. In exercising its discretion, the court is required to strike a balance between conflicting considerations.
The fact that the decision requires a balancing exercise is enunciated in the English case of
Charlesworth vrs. Relay Roads Ltd  4 ALL ER 397 in the following terms:
“As is so often the case where a Party applies to amend a pleading or to call evidence for which permission is needed, the justice of the case can be said to involve two competing factors. The first factor is that it is desirable that every point which a Party reasonably wants to put forward in the proceedings is aired: a Party prevented from advancing evidence and/or argument on a point (other than hopeless one) will understandably feel that an injustice has been perpetrated on him, at least if he loses and has reason to believe that he may have won if he had been allowed to plead, call evidence on, and/or argue the point. Particularly where the other Party can be compensated in costs for any damage suffered as a result of a late application being granted, there is obviously a powerful case to be made out that justice indicates that the amendment should be permitted
On the other hand, even where, in purely financial terms, the other Party can be said to be compensated for a late amendment or late evidence by an appropriate award of costs, it can often be unfair in terms of the strain of litigation, legitimate expectation, the efficient conduct of the case in question, and the interest of other litigants whose cases are waiting to be heard, if such an application succeeds.”
An amendment to a pleading will be refused if a party has deliberately framed his case in a particular way and the opponent may have conducted his case differently had the new issues been previously raised: See Burnham vrs City of Mordialoc  VLR 239; Harvey vrs John Fairfax Publications Pty Ltd  NSWA 255. Some of the grounds for refusal of amendment are: -
That the amendment is so fruitless that it would be struck out if it appeared in an original pleading.
That the application is made mala fides.
That an order for costs is not sufficient to cure any prejudice to another party to the proceedings: See Heath vrs. Goodwin  8 NS WLR 478.
That the application of case management principles so require; See Hannaford vrs Commonwealth Bank of Australia  NSWCA 297 at 14-21.
Other matters that may result in refusal of the amendment include:
the attitude of the parties in relation to the amendments;
the nature of the amendment sought in relation to the suit; the question in controversy; and to an extent; the time when the amendment is sought.
Regarding the attitude of the parties, the court must be satisfied that the application is brought bona fide or in good faith and not designed to abuse the court process. In dealing with the nature of the amendment, the court will take into consideration the totality of the content of the amendment sought vis-à-vis the relief or reliefs sought in the matter. In the consideration of the nature of the amendment sought, the court will examine very closely the real question in controversy in the litigation.
The time or stage of the case when the application for amendment is brought is also an important consideration. And here, the court should take into consideration whether the applicant brought the application at the earliest opportunity in the proceedings. If the application for amendment was delayed the court should be interested to know what caused the delay. If the reason for the amendment was as a result of an important material relevant in the application coming to the applicant’s notice late, that will be a consideration in his favour. But the court will take into consideration whether the applicant, a person of due diligence, ought to have procured the information earlier than the time he obtained it. After all, equity will part ways with an indolent litigant.
The final consideration is the justice of the case. Justice, which generally means fairness, the quality of being just and the disposition of disputes in court to render every party his due, is the barometer on which the case revolves or rotates in the judicial process. It is the cynosure in the judicial process and a Judge in the performance of his adjudicatory functions, must look out for it. The situation is however not open ended; there is a caveat. A Judge cannot arrogate to himself that he is doing justice in a case where statute is clear and unequivocal on a point. In such a situation, that Judge must bow to the statute because his main hire is to interpret the statute. I think Lord Denning had this in mind when he said in his book, “The Family Story” at page 174; that the Judge can only apply the principles of justice if it is legitimate to do so, as in his words, “the judge is himself subject to the law and must abide by it”. It will be illegitimate to apply the justice principle if it is antithetical or diametrically opposed to a statutory provision.
From the above analysis, clearly an application for amendment is not to be granted as a matter of course or routine. While it is the position of the law that a party should not be inhibited to present his case in court, there is the other side of the coin; and it is that a party owes the administration of justice and the judicial process a duty to present his case in whole or in one block and not instalmentally. And so when a party applies to amend his pleadings, the trial judge must be satisfied of the bona fide of the application.
So, an amendment cannot be had for the mere asking. Some explanation must be offered as to why the amendment is required and if the application for amendment is not timeously made some reasonably satisfactory account must be given for the delay. Of course, if the amendment causes an injustice to the other side which cannot be compensated by costs, or in other words, if the parties cannot be put back for the purposes of justice in the same position as they were in when the pleading it is sought to amend was filed, the application will not be granted.
As aforesaid the Defendants/Respondents (hereafter to be referred to simply as the Respondents filed a motion for leave to amend their Statement of Defence. In 1st Respondent’s affidavit in support of the motion, he deposed to the fact that they were served with Plaintiffs’ Witness Statements but before they could file theirs, their lawyer withdrew from the case. Respondents engaged a new lawyer who after studying their processes filed decided to file for an amendment to the Statement of Defence.
In paragraph 4 of the Plaintiffs’ Amended Statement of Claim they averred thus:
“By a document dated 25th May 1976 stamped as AC 5528/76 and registered as No. 2627/1976, Central Services Company Limited acquired from the Onamrokor Adain Family of Accra a 99-year leasehold interest in all that piece or parcel of land containing an approximate area of 355.72 acres as described in the site plan therein contained”.
In their original Statement of Defence, the Respondents denied the above averments as follows:
“3. Paragraphs 4,5,6,7,8,9,10,11,12 and 13 of the Plaintiffs’ statement of claim are denied.
4. In further denial, the 2nd Defendant states that the land in dispute is its legitimate property.
5. The 2nd Defendant states that the land in dispute was granted to the company by Onamrakor Adain family in the year 2005 and a deed of lease was executed to that effect.
6. The 2nd Defendant states that upon acquiring the land, it took immediate possession of the same, cleared the overgrown bush on the land and constructed fence wall around the parameters of the land.
7. The 2nd Defendant avers that whilst it remains in possession of the land, Abdul Hamid Issaka came to the land and started lying false claim in respect of the land and to avoid confrontation, its management negotiated with the said Abdul Hamid Issaka and paid him money in respect of the land.
8. The 2nd Defendant states that Abdul Hamid Issaka executed a lease in its favour and it registered same and was issued with Land Title Certificate”.
In the Amended Statement of Defence however, the Respondents averred as follows:
“8. In answer to paragraph 4 of the statement of claim the 2nd Defendant admits the existence of the instrument dated 25th May 1976 under which Manye Adorkor Allotey, the head of Onamrokor Adain family, purported to grant to Central Services Company Limited a parcel of land at Oko Village, but says the family no longer regards itself bound by the transaction embodied in it and has taken over undeveloped parcels found there and been granting them to interested persons including the land it granted to the 2nd Defendant”.
9. The family has disregarded the transaction embodied in the instrument dated 25th May 1976 because it purports to have been executed on its behalf by Manye Adorkor Alloetey as lessor, yet although she was an old illiterate person unable to read and write, the person who made the oath of proof of due execution by her was not a witness to the affixing of her mark to the document in his presence after he read and explained the contents to her in a language she understood and perfectly understood and approved before affixing her mark thereto.
10. furthermore the transaction embodied in the document as a building lease, a legal transaction of great complex and intricate nature in respect of which she, a lay person, need independent and competent legal advice before entering into it, yet did not receive such legal advice on it”.
The Respondents appear to have done a 180 degree turn. This conduct of the Defendants offends the rule of departure from pleadings as provided in Order 11 R. 10 of C. I. 47. See also Hammond vrs. Odoi [1982-83] 2 GLR 1215.
A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. While a party can do so in very clear instances of mistake or fraudulent misrepresentation by the adverse party; that is not the situation here.
The amended pleadings clearly fall outside the parameters of their own case and is a clear substitution of an altogether new case. The Court would be violating the time-tested and hallowed principle, namely, that a court ought not to substitute a case proprio motu or accept a case contrary to or inconsistent with that which a party himself puts forward. See Iddrisu vrs Grumah [2013-2014] 1 SCGLR 413.
The instant case was commenced as far back as February 2014. The Respondents filed their Defence in May 2015. Pleadings closed and the case reached the Case Management Stage. As aforesaid, the trial Judge directed the Parties to file their Written Statements which the Plaintiffs complied with and attached exhibits in support of their case. The Deed of Assignment between Abdul Hamid Issaka and Ibrahim Brobase Co. Ltd was dated 4th August, 2007 and stamped in 2014. This is the document which the Respondents relied on to claim ownership of the land in dispute. Therefore, in 2014 when the case was filed, Defendants/Respondents knew their root of title.
It appears to us that the said amendments sought were only intended to circumvent the Plaintiffs’ Reply to the Defendants’ Defence and Witness Statements; The amended story seems to be of recent manufacture following the engagement of their new lawyer.
The amendment the Respondents sought set up an entirely new case which will in our opinion occasion injustice to the Appellant. The portions in the Amended Statement of Defence to the effect that the Onamrokor Adain family no longer felt it was bound by the Appellant’s document and therefore granted the land to the 1st Respondent cannot be legally sustained.
As argued by Counsel for the Appellant in his written submissions, the Respondents first sought to rely on a grant from Central Services Co. Ltd, of land which had been granted to them by the Onamrokor Adain family. When it was pointed out that the Onamrokor
Adain family had no right to grant the land to the 2nd Respondent, the Respondents sought to plead that the family had re-entered the land and could make valid grants of same. In this regard, we agree with Counsel’s submission that Section 29 of the Conveyancing Act, 1973 (NRCD 175) spells out clearly the procedure for forfeiture of leases, and that, there being no proper or lawful forfeiture of the lease in question to enable the Onanmrokor Adain family make grants of portions of the land, the said paragraphs 8 to 11 would serve no useful purpose and should not be allowed.
1st Respondent did not claim to be a member of the Onanmrokor Adain family and did not sue on their behalf. There is also no evidence that the Onamrokor Adain family had served any notice as required by law, or taken court action to forfeit the lease. The Respondents have not pleaded or exhibited any judgment obtained by the Onanmrokor Adain family for the forfeiture of the leases. See Western-Hardwood Ent Ltd vrs West African Ent Ltd [1998-99] SCGLR 105 Holding 4.
In the circumstances, we are of the opinion that the substituted pleadings are not legitimate because the Respondents introduced new issues and new allegations of fact to support their defence.
It is trite learning that a party is entitled to withdraw a pleading previously made by means of an amendment. This however is not the case here. An amendment that involves the withdrawal of a pleading is treated somewhat differently in the sense that it is usually more difficult to achieve because it involves a change of front which requires full explanation to convince the Court of the bona fides thereof and also, it is more likely to prejudice the other party who had conducted the case of the original pleading. The Defendants herein did not indicate in their application that they were withdrawing any pleadings for any given reasons.
In summation, we state firstly that the Respondents’ application for amendment did not disclose which part, paragraph and/or wording of their Statement of Defence that they intended amend as required by the rules of court (Order 16 rule 11 (2) of C. I. 47). As aforesaid, it appears the only reason why the Respondents wanted an amendment was because their original lawyer withdrew from the case and a new one was engaged.
The true nature of the amendment sought and the time it was brought are suggestive that the Respondents intended thereby to overreach the Appellant and that the application to amend was not made in good faith. Furthermore, in our view, the said amendment will prejudice the Appellant’s case. The Appellant cannot be compensated by costs.
On the basis of the above, we are of the view that the instant appeal must succeed. We accordingly uphold the appeal and strike out the pleadings allowe