IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
MICRO MOBILE LINKS LIMITED - (Plaintiff)
MILLICOM GHANA COMPANY LIMITED - (Defendant)
DATE: 22 ND MAY, 2018
SUIT NO: OCC. 63/2017
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
KOFI EDUSEI FOR THE PLAINTIFF/RESPONDENT
STEPHEN OPPONG FOR THE DEFENDANT/APPLICANT
This ruling concerns a preliminary legal objection taken to the application for amendment of the statement of defence by the defendant/applicant herein. The objection relates to the nature of the amendment. It is counsel for the plaintiff/respondent’s contention that the application is incompetent, as counsel for the applicant did not specify precisely the nature of the amendment but rather attached to the application a proposed amended statement of defence. Counsel submits that the application is in violation of Order 16 rule 11(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47).
Counsel for the applicant is opposed to the objection and contends that the precise nature of the amendment has been incorporated in the proposed statement of defence. He submits that counsel for the plaintiff’s objection is a complete misapplication of Order 16 rule 11 and that the sub rules bear the application out. Besides, assuming, counsel for the plaintiff’s interpretation is right, he submits that Order 81 can cure the irregularity. The point I am called upon to decide is whether the affidavit in support of the motion and the proposed amended statement of defence annexed by the applicant to the instant application satisfy the requirements under Order 16 rule 11 particularly rule 11(2). Order 16 rule 11 provides:
“Rule 11—Method of Applying for Leave
(1) An application for leave to amend a writ or a pleading shall be made on notice to all the other parties to the action.
(2) The application shall specify precisely the nature of the amendment intended to be made.
(3) An affidavit may be used in an application for leave to amend under this rule.”
An amendment may be made to introduce a new cause of action, correct an error in the pleadings or replace an admission made among others. It is, therefore, necessary to ensure that the nature of the amendment must be apparent on the face of the application. The Indian Supreme Court in the case of Gurdial Singh vs. Raj Kumar Aneja, (2002)2 SCC dealt with the nature of amendments. In para 13 of the report, the Honourable Supreme Court held as follows:-
“13. .... Unless and until the court is told how and in what manner the pleading originally submitted to the court is proposed to be altered or amended, the court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on. It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the court for amendment in the pleading, as to what is proposed to be omitted from or altered or substituted in or added to the original pleading.”
In the Gurdial Singh case (supra), the Court took into account an amendment which is applicable in the State of Punjab and Haryana and the Union Territory of Chandigarh where Order 6 Rule 17 sub-clause 2 has been added which reads as follows:
"17.(2) Every application for amendments shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleading."
Incidentally, the wording of said Order 6 rule 17(2) is similar to the wording of our Order 16 rule 11 of CI 47. The difference is that the former comes with more clarity as it makes provision for how the precise nature of the amendment should look like. The plain meaning of the latter is, however, in tandem with the former. Reference may also be had to the case of Kedar Nath & Ors. vs. Ram Parkash, 76 (1998) DLT where the full bench of the Indian High Court held in para 17 of the report as follows:-
"17. Any party whether it be the plaintiff or the defendant proposing to make an amendment in his pleading must make an appropriate application setting out specifically, (i) the additional pleading sought to be added, (ii) the pleading sought to be deleted or altered, so that the Court may clearly form an opinion as to the nature and extent of the proposed amendment and its legal implications for the purpose of, exercising its discretionary jurisdiction of permitting or denying the prayer for amendment …”
A perusal of the affidavit in support of the motion as well as the proposed amended statement of defence show that there is no attempt to specify precisely what is sought to be incorporated or deleted in the proposed amendment. The lines, phrases and words which are sought to be added or deleted have not been mentioned in the application. Merely deposing in paragraph 5 of the affidavit in support of the motion to the fact “that the Defendant is desirous of amending its statement of defence and also to counterclaim against the Plaintiff and hereby attach Proposed Statement of defence and Counterclaim as Exhibit A” does not amount to what could be described as the “precise nature of the amendment”. The motion does not in any way highlight the precise nature of the amendment to enable the court decide whether the amendment is necessary so that the real issues in controversy can be effectively determined. It is not the duty of the court to sift through the process and highlight what is sought to be amended by the applicant. I appreciate the fact that foreign decisions although recognized as part of the laws of Ghana are not binding on Ghanaian courts – they are only persuasive. They are, however, applied alongside local decisions. In Fodwoo v Law Chambers & Co. the Supreme Court explained the objective of maintaining such duality:
“We do not hold ourselves bound by this decision [Kitchen v Royal Air Force Association] but the reason underlying the formulation of these principles appeals to us and we respectfully follow it. Indeed we cannot shut our eyes to the desirability of a homogenous development and application of the law in two Commonwealth countries having cognate jurisprudence.”
Foreign decisions especially from a Commonwealth country like India with a similar legal system may be applied to fortify our laws, which is why I am persuaded by the cases cited above not for the sake of convenience but for the potency of the legal principles which they espouse. It is my considered opinion that these principles relating to amendments are on all fours with the legal effect of Order 16 rule 11(2) of CI 47. The legal effect is that if a party wishes to amend his pleadings, he should file a draft of the amended pleadings clearly showing the deletions and additions to the original. Anything short of this is incompetent, as the jurisdiction of the court to hear the application cannot be invoked.
I am unable to honour counsel for the applicant’s invitation to treat the non-compliance to Order 16 rule 11(2) as a mere irregularity which can be cured by Order 81 of CI 47. This is because the non-compliance goes to jurisdiction. It is trite learning that where the rules of procedure prescribe a mode of enforcing a right or seeking a relief same must be adhered to, as failure to do so in accordance with the prescribed mode is not only an irregularity but a nullity since it raises the fundamental issue of jurisdiction. See Ayikai v Okaidja III  1SCGLR 205, 208 per Gbadegbe JSC.
For the foregoing reasons, I uphold the preliminary legal objection. The application is consequently struck out as incompetent.