ACCRA - A.D 2019
FIRST ATLANTIC BANK LTD - (Plaintiff/Respondent)

DATE:  12TH APRIL, 2019
SUIT NO:  AB/39/2014

i. Background:

[1] The facts of this case are free from complexity but in order to understand the reasoning behind my conclusion it is important to give the historical background of this suit and the instant application. My review of the docket shows that the Original Writ of Summons was filed November 28, 2013. The writ of summons with the statement of claim was served on the 1st Defendant through Anthony Kwame Haick (the 2nd Defendant, now deceased) personally on November 29, 2013. The record further shows that the Defendants failed to enter appearance to the writ of summons and therefore on February 11, 2014 the Court presided over by His Lordship, L.L. Mensah J (as he then was) entered default judgment against the 1st and 2nd Defendants.


[2] On May 8, 2014 J. Opoku Agyei Esq filed a Motion on Notice for Leave to Enter Appearance after Judgment. The Plaintiff resisted the application by filing an affidavit in opposition. However, the Court granted same on June 5, 2014 and on June 12, 2014 Mr. Opoku Agyei entered appearance for the 1st and 2nd Defendants. The record further shows that on June 26, 2014 the Court after hearing both Counsel of record, Mr. Kwame Boafo Akuffo and Mr. Opoku Agyei ordered that “Director of the Architectural Engineering Services Limited (A.E.S.L.) be appointed to value the property known as No, 29 Boundary Road, West Legon, Accra and the vehicle VW Tourage with Registration No: CR 888-10 should also be valued by the State Insurance Company (SIC) at the current market rate”.


[3] Further to that on December 18, 2014 the parties executed Terms of Settlement after the Defendants had filed Motion for Stay of Execution and for Leave to pay Judgment Debt by Installments. The record further shows that the Plaintiff was granted leave to go into execution after the Defendants defaulted on the terms of settlement on July 10, 2015 by Anthony K. Yeboah, J (as he then was).


[4] On October 24, 2016 the Plaintiff applied to the Court to substitute the 2nd Defendant, Anthony Kwame Haick who had passed on. An Amended Writ of Summons was thereafter filed on October 11, 2017 to reflect the new parties. The record again shows that the Plaintiff as Judgment Creditor on December 4, 2017 purchased the property of the original 2nd Defendant which was attached as part of the execution process at an auction organized by Mayfair Mart (F.N.B. Tagoe (Licensed Auctioneer). This Court differently constituted on January 26, 2018 ordered the Registrar of the Court to release the monies paid into Court to the Plaintiff Bank as a Judgment Creditor and to the Auctioneer, his fees.


ii. Argument for and Against the Application:

[5] Now, upon the service of the Amended Writ of Summons after the substitution of the original 2nd Defendant, a Statement of Defence was filed on January 17, 2018 and by paragraph 9, the Defendants allege fraud and collusion against the Plaintiff. On May 30, 2018 the Defendants filed the instant motion on Notice “praying the Honurable Court for leave to amend or recast the statement of defence to reflect upon current events which have emerged between the litigating parties after the statement of defence had been filed; more especially, issues of fraud which is now being raised as upon the grounds stated in the accompanying affidavit”.


[6] An initial 13 paragraph affidavit was attached to the Motion. A Supplementary Affidavit was also filed on November 18, 2018 in answer to a 9 paragraph affidavit in opposition deposed to by Yvonne Akuffo-Addo. I note that at paragraphs 4 and 5 of the affidavit in opposition it was deposed that “the application is procedurally flawed and serves no useful purpose” and “the application has been filed in extreme bad faith and that same amounts to an avenue to re-litigate the matter which has been done and dusted”. It is also deposed that this Court has no jurisdiction to grant the Defendants leave to amend the statement of defence.


[7] In the Supplementary Affidavit filed, the Defendants by paragraph 3 denied the affidavit in opposition paragraphs 2, 3 and 4 and stated that “having amended his statement of claim and raised pertinent issue in the said amended statement of claim; it is fair and proper that, we also file an amended statement of defence. It is also deposed that the Plaintiff as the Judgment Creditor and the Mortgagee of the property “cannot by the rules of Court and equity, buy the mortgaged property”. That deposition and others contained in the affidavit in support and the supplementary affidavit are the basis for the application.


iii. The Court’s Opinion & Analysis:

[8] Ordinarily, a party can amend pleadings at any time in the course of a trial and even on appeal. The power inherent in the courts to allow amendments is to meet the justice of a particular case and ensure the agility of the court to respond to the exigencies of cases within its jurisdiction. In GHANA PORTS & HARBOURS AUTHORITY v ETS KABORE ISSOUFOU (1992-93) GBR 24 at 32 the Supreme Court speaking through AIKINS JSC (as he then was) established the principle as follows:

“…since the power to make such amendments rests in the inherent jurisdiction of the courts, the courts can, when the issue is raised either in the trial court any time before judgment is delivered or in the appellate court on the application of a party to the suit (orally or otherwise), grant such amendments as are necessary to meet the justice of the case.”


[9] The law as I understand it is that amendments can be made at any stage of the trial provided that: 1. the said amendments do not prejudice the case of the other party, 2. do not ambush or surprise other parties, 3. do not enable a party to set up an entirely new case or to change completely the nature of his case, 4. it is not sought to add new parties, 5. it will not do any injury to the opponent's case in some way which cannot be compensated by costs or otherwise, 6. the application is made bona fide, and the proposed amendment will not cause undue delay or is irrelevant or useless or would merely raise a technical point. See YEBOA v BOFOUR (1971) 2 GLR 199.


[10] In the opinion of this Court, in this particular application and as the initial historical background show in so far as the Court record goes, judgment has been entered in this suit and therefore there is no suit properly so-called pending for pleadings to be amended. As I understand it, the amendment of the writ was necessitated by the substitution granted by the Court and that to my mind did not require the filing of a Statement of Defence in the first place after the parties had executed Terms of Settlement filed on December 18, 2014.


[11] Further, I understand the Defendants to say by this application they wish to amend to “reflect upon current events” which have emerged between the parties. They are also saying that because the Plaintiff amended the writ it is also fair that they also amend. With the greatest respect to the Defendants and Counsel, even though the argument is attractive, I am of the respectful view that it is misconceived. This is because the amendment would no achieve any useful purpose based on the record before me because there is no issue based on the pleadings to be determined at this stage as the main issue was resolved after the parties executed the Terms of Settlement.


[12] Indeed, if the Court were to accept the Defendants’ argument, it would open the flood gates and give Judgment Debtors a field day because they would always think they have the opportunity to re-litigate suits which have been concluded after the parties file Terms of Settlement and same is adopted by the Court as a consent judgment.


[13] In my considered view, even though the issue of fraud raised in the Statement of Defence filed which was filed after judgment and the other issues including the fact that as a Mortgagee the Plaintiff Bank could not purchase the attached property etcetera are very serious, they can be properly ventilated/articulated in a fresh suit if the Defendants so wish and not through the process adopted which to my mind is alien to the rules of Court. Consequently, having carefully considered the application and the affidavit evidence for and against the application, I have come to the conclusion that the application ought to be dismissed and it is DISMISSED.


Accordingly Ordered.