IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
JIBRIL MAHAMA - (Plaintiff/Appellant)
AKWASI MENSAH - (Defendant/Respondent)
DATE: 21 ST JUNE, 2018
CIVIL APPEAL NO: H1/57/2018
JUDGES: F. G. KORBIEH JA (PRESIDING), E. K. AYEBI JA, CECILIA H. SOWAH JA
MR. AGYABENG AKRASI FOR PLAINTIFF/APPELLANT
MR. BENONI KUDZE FOR DEFENDANT/RESPONDENT
The issue to resolve in this appeal is whether or not the trial judge exercised his discretion properly when he heard the defendant/appellant’s motion for leave to amend the statement of defence which was later in time to the plaintiff/appellant’s motion for judgment on admission.
In the suit itself the plaintiff/appellant (hereinafter referred to as plaintiff) sued for a declaration of title to a piece of land situate and lying at Dome Pillar 2 Transformer Junction, an order for specific performance, perpetual injunction, recovery of possession and costs. In the accompanying statement of claim, plaintiff pleaded at paragraph 4 that:
“Plaintiff avers that it was a term of the sale and purchase agreement he entered into with defendant that he was to pay GH¢40,000.00 to defendant whilst the remaining balance of GH¢30,000.00 “shall be paid after the transfer” of the necessary land documents”.
The subsequent paragraphs in the statement of claim state that despite the payment of the GH¢40,000.00 which the defendant acknowledged, he had refused to give to the plaintiff the documents of transfer despite repeated demands. The defendant, the plaintiff alleged trespassed on the land by re-sealing a foundation he dug, which action clearly envinced an intention to sell the land to a third party.
A lawyer entered an appearance for the defendant and filed a statement of defence on his behalf. In paragraph one, defendant averred that that “save as hereinafter expressly admitted the defendant denies each and every material allegations of fact contained in the statement of claim. In paragraph (4), the defendant pleaded:
“In further denial, the defendant will contend that the said plot of land was to be sold to the plaintiff for GH¢70,000.00 and the plaintiff paid GH¢40,000.00 leaving a balance of GH¢30,000.00 to be paid after the transfer of the document thereof”.
In the subsequent paragraphs, the defendant pleaded that apart from the initial payment, the plaintiff has failed to pay the balance of GH¢30,000.00 and he also failed to obtain a building permit before he embarked on the development of the land. But then he sent the transfer documents to the Municipal Chief Executive (MCE). Defendant continued that when his wife died in a gas explosion in January 2015, he informed the plaintiff and demanded the balance to perform the funeral but plaintiff refused to pay. He had no option then than to sell the land to raise the money he needed for the funeral and he informed the plaintiff to come for his deposit and he agreed. It is the case of the defendant that the plaintiff’s conduct and behavior did not demonstrate that he was ready to purchase the said land, hence he denied the claim of the plaintiff.
It is noticed that as regards the payment of the GH¢30,000.00 balance of the purchase money, defendant’s paragraph (4) of the statement of defence agreed with or admitted the plaintiff’s paragraph (4) that the transfer documents on the land must be given to the plaintiff before the balance is paid. As the plaintiff put it, the transfer of the documents on the land to him is a condition precedent to the payment of the balance of GH¢30,000.00.
Therefore pursuant to Order 23 rule 6(1) and Order 11 rule 18(1)(a) of the High Court (Civil
Procedure) Rules, 2004 (C.I. 47), the plaintiff on 4th March 2016, applied for judgment on admission of his claim and want of reasonable defence to his claim. I think rule 6(2) of Order 23 of C.I. 47 is the appropriate rule under which the first leg of the application falls. The rule 6(2) states:-
“Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to the court or to the Judge for such order as the party may be entitled to on admission without waiting for the determination of any question between the parties, and the Court or the Judge may make such order as is just”.
Defendant on his part changed his lawyer per notice filed on 17th March 2016. The new lawyer proceeding on the basis that pleadings had not closed, filed an amended statement of defence without leave on 5th April 2016. The next day 6th April 2016, defendant filed an affidavit in opposition to plaintiff’s motion for judgment on admission. The ground of opposition is that in view of the amended statement of defence, the plaintiff cannot be entitled to judgment on the pleadings.
Upon an application by the plaintiff, the amended statement of defence was set aside on 17th June 2016. But on 24th June 2016, defendant filed a motion for leave to amend his statement of defence. In paragraph 5 of the affidavit in support in particular, the defendant averred that “the amendment will enhance him bring all the facts of the case before the court to enable the matter to be effectively and effectually determined by the court”.
Order 16 rule 5(1) of C.I. 47 on amendment of writ or pleading with leave states:
“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 to
(a) the plaintiff to amend the plaintiff’s writ, or
(b) any party to amend the party’s pleading, on such terms as to costs or otherwise as may be just and in such manner as it may direct”.
In an affidavit in opposition however, plaintiff averred that “defendant’s named application is incompetent as it seeks to defeat my application for judgment on admission filed on 17/02/16”. That apprehension on the part of the plaintiff is well-founded because in the proposed amended statement of defence, the defendant had denied the admission of plaintiff’s paragraph 4 of the statement of claim which formed the basis of plaintiff’s motion for judgment on admission.
This is what the defendant pleaded in the proposed amended statement of defence:
Paragraph (2) The defendant denies paragraphs 1, 2, 3 and 4 of the statement of claim
Paragraph (3) The defendant in further denial to paragraph 4 will contend during the trial of the case that during the negotiation with the sale of the land with the plaintiff there were some conditions they (plaintiff and defendant) agreed upon. Among them are as follows:
(a) That the plaintiff should make full payment before he could start any development on the land.
(b) The cost of the land would be Seventy Thousand Ghana Cedis (GH¢70.000.00) and that the plaintiff is to make part-payment of Forty Thousand Ghana Cedis (GH¢40,000.00) then the remaining balance of Thirty Thousand Ghana Cedis (GH¢30.000.00) should be paid within a period of two (2) months after which the transfer document covering the sale would be prepared by the plaintiff and same transferred to him (defendant).
(c) That if plaintiff defaults or fails to pay the outstanding balance the defendant would be at liberty to look for an alternative or another prospective buyer.
In the statement of defence filed by the defendant on 17/02/16, he admitted the plaintiff’s assertion that the agreement was that, the transfer documents must be given to the plaintiff before the balance is paid. But in the proposed amended statement of defence, the defendant is saying that the agreement was that the balance of the money must be paid before the transfer documents would be made available to the plaintiff. In the view of the plaintiff, the defendant’s proposed amendment on the condition precedent for the transfer of documents, is a material departure which if granted will render his pending motion moot or useless.
But the trial judge was not persuaded by that view of the plaintiff when he heard the defendant’s motion for leave to amend his statement of the defence. He proceeded on the authority of Adjeley vrs Sowa  GLR 954 and granted the defendant leave to amend his statement of defence. In the Sowah case, which cited very respected English authorities which guide the courts in determining applications for amendments, it was held that however negligent or careless a party might have been and however late the proposed amendment it ought to be granted if it caused no injustice to the other party or the other party could be compensated by costs or otherwise. In this case the trial judge upon the grant of the motion for leave to amend the statement of defence, awarded cost in favour of the plaintiff and ordered the suit to take its normal course.
Aggrieved by the ruling of the trial judge, the plaintiff appealed and prayed us to set aside the said ruling on the grounds that:
(i) The ruling is against the weight of evidence.
(ii) The ruling denied plaintiff a right of hearing of his prior in time pending motion on notice for judgment, resulting in a patent miscarriage of justice.
(iii) The learned judge erred in law in his effort to interpret what constitutes hearing of a matter on its “merit” and thereby over-looked or ignored plaintiff’s aforesaid motion on notice for judgment.
I noticed that counsel for the plaintiff did not argue the grounds of appeal seriatim but counsel for the defendant argued them one after the other. But as I have stated in the introductory paragraph of this judgment, the issue is to determine whether or not the trial judge exercised his discretion in the matter properly or judicially.
It is so because as per the rules of court, in determining an application for judgment on admission, the trial court exercises a discretion. Similarly, the trial court grants or refuses an application to amend pleadings in the exercise of its discretion. In Sharp vrs Wakefield  AC 173 at page 179, Lord Halsbury stated that:
“ ‘discretion’ means when it is said that something is to be done within the discretion of the authorities that that something be done according to the rules of reason and justice not to private opinion …… according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within limit to which an honest man competent to the discharge of his office ought to confine himself”.
Thus as rightly noted in Nkrumah vrs Serwah & Ors. [1984/86] 1 GLR 190 CA and referred to in the written submission of the plaintiff:
“The granting or refusal of an application for leave to amend pleadings was discretionary and the Court of Appeal would not interfere with the exercise of that discretion unless it was satisfied that the trial judge applied a wrong principle or it could be said that he reached a conclusion which would work manifest injustice. Yeboah vrs Bofour  2 GLR 199, CA cited”.
In the case of an amendment of pleadings the purpose of an amendment in the adjudicatory process guides the exercise of the court’s discretion. Basically, the purpose of an amendment of pleadings is to enable the court to determine the real question(s) in controversy between the parties and as much as possible to avoid multiplicity of suits. So as a general practice, an amendment will be allowed unless:
(i) it will entail injustice to the respondent.
(ii) the applicant is acting mala fides, or
(iii) by his blunder, the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise – see Tildesley vrs Harper  10 Chan Div. 393 at 396.
Our courts thus do cite with approval the statement of Bowen LJ in Copper vrs Smith  26 Chan. Div. 700 as the correct principle which guides them in considering an application for amendment of pleadings. At pages 710 to 711, the learned justice stated:
“Now I think it is a well-established principle that the object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. …. I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to 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 matters in controversy; and I do not regard such amendment as a matter of favour or 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 prejudice, as anything else in the case is a matter of right”.
Consequent upon the above principle, Bret M.R. said in Clarapede & Co. vrs Commercial Unions Association  32 WR 262 at page 263 that:
“However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs”.
And supporting the basis of this application as demonstrated in the affidavit in support is the dictum of Denning MR in Doyle vrs Olby (Ironmongers) Ltd.  2 All ER 119 at that:
“We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side”.
Now, the defendant in opposing the plaintiff’s motion for judgment on admission, averred that by the amended statement of defence he had filed, the plaintiff is not entitled to judgment and that in the interest of justice, the matter should be determined on the merits. The plaintiff in opposing the defendant’s motion for leave to amend the statement of defence averred that the application is incompetent as it seeks to defeat his application for judgment on admission filed earlier in time.
The question is, is the defendant’s motion for leave to amend the statement of defence incompetent because it may defeat the plaintiff’s motion for judgment on admission filed earlier? An incompetent matter or evidence is one which for any reason in law is inadmissible. The plaintiff therefore had the duty to demonstrate to the court the incompetency of the application. It is the same duty or burden the plaintiff must discharge in this appeal since every appeal is by way of re-hearing.
The whole submission of counsel for the plaintiff centred on the business of the court on 29/06/16. After setting aside defendant’s amended statement of defence filed without leave, 29/06/16 was the date the court adjourned the plaintiff’s motion to for hearing. But the court rather heard the defendant’s motion for leave to amend the statement of defence. It is the submission of the counsel for the plaintiff that the trial judge fell into grave error when he heard the defendant’s recent motion over his earlier motion. The error led to a miscarriage of justice because by hearing the defendant’s motion, the plaintiff’s earlier motion has been undermined and rendered moot.
Counsel submitted that although the trial judge relied on the Sowah case (supra) which held that an amendment should be granted if no injustice would be caused to the opponent, he gave the wrong reason for granting the purported leave for amendment. Referring to the law on amendment especially as stated in Tildesley vrs Harper (supra), he submitted that the amendment was brought in bad faith after the plaintiff had acquired some vested right in his motion for judgment on admission. He also accused the defendant of indulging in piecemeal litigation, a practice which the Supreme Court deprecated in Republic vrs High Court, Accra Ex parte Hesse [2007/08] 2 SCGLR 1220. In conclusion, counsel submitted that the trial judge did not appreciate determining a case on its merits which simply means that allowing rules of procedure and evidence to guide the conduct of the trial. He urged that the only way to do justice in the matter is for this court to interfere with the ruling of the trial judge by setting it aside.
In the submission of counsel for the defendant generally, he stated that an industrious counsel should be ever vigilant of any development during the progress of the case and change or amend a procedural step or order to achieve the desired result for his client. A court must also ensure that justice is done. He observed that administration of justice cannot be made immune from error.
Stressing the importance of award of costs in applications such as this, he observed that the award of cost as a compensation preserves the action rather than throw it away for a new one to be commenced, stating that one does not throw away a thing that can be repaired efficiently. As I stated he argued the grounds of appeal seriatim. His overall submission on all the grounds of appeal is that the appeal is frivolous and malicious and should be dismissed with punitive cost.
To begin with, in practice, the court has ample discretion to direct the order in which motions may be called and heard on a motion day. From the record of proceedings, although the court adjourned the plaintiff’s motion for judgment on admission to 29/06/16, the defendant’s motion for leave to amend his statement of defence although filed later, was given the same 29/06/16 as the return date for hearing. It is therefore misleading for counsel for the appellant to argue as he has done as if his motion was the only business on that day in the matter.
I note also that the plaintiff’s motion is not a preliminary objection which by law must be heard and determined first before any other business in the matter in which it is raised – see Isch vrs Ayivor  GLR 259. We therefore have no basis to fault the trial judge in the exercise of his discretion when he heard the motion for leave to amend the statement of defence first. This is so as held in Abdilmasih vrs Amarh  2 GLR 414 at 422:
“Nobody has a vested right in procedure, and modern notions of justice require that a court should do substantial justice between the parties unhampered by technical procedural rule”.
I shall show herefrom that the determination of the trial judge to do substantial justice informed his decision to hear the defendant’s motion filed later in time. In law an admission is a concession by a party of the assertion of the opponent. As held in Ewusie-Mensah vrs Ewusie-Mensah  1 GLR 271, an admission of a claim in a pleading narrows the dispute.
Generally unless an admission is made inadvertently, the court may not allow the pleadings to be amended by the withdrawal of the admission. An amendment which would prejudice the rights of the opposite party at the proposed date as a rule are not admissible. But an admission made by mistake may be withdrawn and the pleading amended accordingly – see Hollis vrs Burton  3 Chan 226 at 236.
Further, where the amendment sought does not constitute the addition of a new cause or raised a different case but amounts to no more than a different or additional approach to the same facts based on the same cause of action, amendment will be allowed even after the expiration of the statutory period of limitation – see Order 16 rule 5(2) & (5) of C.I. 47.
Again, although the rules say that an amendment can be granted “at any stage of the proceedings”, it does not happen so in practice. Many objections to amendments relate to the timing and substance. If a party or even both parties have closed their case, there will be no opportunity to use the new facts allowed in by the amendment. Amendments are not granted to enable a party to re-open his case. So amendments should be sought timeously.
I have so far been alluding to situations in which the courts will allow or refuse amendment of pleadings. The ground of appellant’s objection to the grant of the amendment sought by the defendant does not come anywhere near any of those situations yet.
It is recalled that in the affidavit in support of the motion for leave to amend the statement of defence, the defendant averred that, he changed his lawyer and briefed him. Upon the briefing, his new lawyer advised that they seek an amendment to his pleading. It may well be that the plaintiff’s motion for judgment on admission led to the change of solicitor and the application for amendment. The plaintiff therefore well knew that if the defendant’s application for amendment is granted, his motion may be rendered moot or nugatory. But then there is no law or rule which bars a party from seeking an amendment to his pleading in such circumstances especially so in this instance when the defendant can plead admission by inadvertence or mistake or his former solicitor’s omission or negligence. Contrary to the submission of plaintiff’s counsel, the fact that the grant of the amendment will defeat or undermine his earlier application for judgment on admission does not make the motion incompetent. For the same reason, if in the interest of justice the trial judge heard and granted the amendment over and above the plaintiff’s earlier motion, the trial judge violated no rule of practice or statute.
There have been several situations or occasions when motions filed later in time are heard and determined over and above the one filed earlier in time. In that case the fate of the motion filed earlier in time will abide the result of the determination of the later motion. In all such cases, care is taken not to pronounce on the merits of the case or the final rights of the parties. In the instant case, with the pendency of defendant’s motion for leave to amend, it would have been premature on the part of the court to pronounce on the plaintiff’s motion for judgment on admission, a pronouncement which the plaintiff was cocksure will be in his favour.
In Pomaa & Ors vrs Fosuhene [1987/88] 1 GLR 244 at page 260, Francois JSC stated:
“It seems then whenever an application for amendment has been filed, it must be dealt with. Thus where there are two applications one for judgment and one for an amendment, the amendment must be dealt with first. If the application for amendment fails, the applicant can have recourse to an interlocutory appeal on it. If the application for judgment is taken first and it succeeds, the application for amendment would be rendered useless, and that is the reason why an amendment should have prior consideration”
By allowing the defendant to amend his statement of defence to enable the court the determine the matter on the merits, the court has more or less widened or expanded the opportunity of presentation of evidence to both parties. The ground of appeal that because the court decided not to hear the plaintiff’s motion filed earlier in time resulted in a patent miscarriage of justice is not tenable as it is misconceived.
The plaintiff accused the defendant of seeking the amendment mala fides or in bad faith. Bad faith connotes dishonesty of belief or purpose. Bad faith has never been plaintiff’s defence to the motion for leave to amend. And going back to the events leading to the application, I do not infer either indirectly or remotely on the part of the defendant any bad faith.
Also according to plaintiff’s submission, defendant’s motion for leave to amend his statement of defence came too late in time for by his earlier motion for judgment on admission, he had acquired some “vested rights”. While the plaintiff had a right to file the motion as permitted by Rules of Court, he had no right to its grant. It is the court which decides to grant or refuse the motion. But the plaintiff throughout his submission argued as if the mere filing and pendency of his motion is to tantamount to a grant or meant that he is entitled to an automatic grant.
That is not the law as it is not applied as such. For in Pomaa & Ors vrs Fosuhene (supra), the court held that:
“The rules as worded gave the court discretion in an application for judgment on admission. The judge has the discretion even where the admission exists or is proved to give judgment or grant an order as may appear just to him. But where the admissions are clear and are on material facts, the application ought to be granted”.
I have already summarized the defendant’s defence in the original statement of defence. It showed that after the said admission in paragraph 4, his pleaded case in paragraphs 5, 8, 9 and 10 negatived an intention to admit plaintiff’s paragraph 4. Those paragraphs watered down the admission and render the admission ambiguous. Unless the court found the admission to be clear and unequivocal, leaving no other issues, the application for judgment on admission will not be granted. In the instant case, the admission made in paragraph 4 in my view cannot be said to be clear and unequivocal because the negative averments in the subsequent paragraphs may not lend themselves to snap judgment – see Micheletti Polla Ltd. vrs Crabbe  1 GLR 109.
Before I conclude, I find as a fact that the issues discussed and pronounced on in the Ex parte Hesse case (supra) have no bearing on the instant case. In particular, defendant is not in the least guilty of piecemeal litigation in this case. We hold that the trial judge properly exercised his discretion when he heard the defendant’s application for leave to amend although it was filed later in time. See Ghana Commercial Bank vrs Kofie  2 GLR 235, which held that since the plaintiff’s notice of amendment was before the court at the time it delivered judgment, the court should have considered it. Again, the trial judge granted the defendant’s application for leave to amend his statement of defence in accordance with settled principles of law. The appeal is therefore dismissed.
By the ruling of the trial court, plaintiff’s motion for judgment on admission must still be pending. Parties must return to the trial court for direction.