Ofori And Another vrs. Social security & national insurance trust (HI/58/2004.) [2004] GHACA 31 (23 July 2004);
IN THE SUPERIOR COURT OF JUDICATURE,
IN THE COURT OF APPEAL SITTING AT
ACCRA ON THE 23RD JULY, 2004.
HI/58/2004.
CORAM - TWUMASI, JA
ASARE KORANG, JA
PIESARE, JA
WILLIAM OFORI & COMPANY ] …. PLTS/APPELLANTS
VRS.
SOCIAL SECURITY & NATIONAL]
INSURANCE TRUST ] …. DEFTS/RESPONDENTS
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J U D G M E N T
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PIESARE, JA - This is an interlocutory appeal from the Ruling of the High Court, dated 16th May, 2001, refusing the appellant’s application for leave to amend the name of the plaintiff in the title of the case, by seeking to substitute WILLIAM OFORI & CO with WILLIAM OFORI (Carrying on business under the name and style of WILLIAM OFORI & CO;
- To substitute the figure $329, 213.29 for the figure $289,213.29
in the endorsement;
- and to delete paragraphs 1 – 22 of the original statement of claim,
and to substitute 15 new paragraphs.
In refusing the amendment sought, the Learned Judge of the court below based her refusal on three grounds:
- That it would add new parties to the suit;
- That it would enable the plaintiff to change completely the nature
of his case; and
- That the amendment sought was not made bona fide.
In this appeal the appellant abandoned all the original grounds of appeal, and argued only the additional grounds of appeal, which are:
- The Trial court’s Ruling is against the weight of evidence.
- The Trial Court erred when it held that the proposed amendment
would add new parties to the suit.
- The Trial Court erred when it held that the proposed amendment
would change completely the nature of the case.
- The Trial Court erred when it held that the application to amend is
not bona fide and that no useful purpose would be served by allowing the amendment.
Now, the law is that where an appellant contends that the judgment is against the weight of evidence, he assumes the burden of showing from the evidence, that the judgment was in fact against the weight of evidence. Boateng v. Boateng & or. [1987-88] 2 GLR 81.
Now, the appellant’s showing under this ground is not clear. He looked at “William Ofori & Co.” and says that it is clear that there is only one person trading in his own name as William Ofori & Co. But I, cannot easily read that from William Ofori & Co.
Again, the appellant contends that the reframing of the statement of claim is only to account of the settlement of the $40,000 through the earlier court action by the defendant – respondents against the plaintiff “William Ofori & Co.”
The reframed statement of claim however appears loaded with new material, and does not appear reframed to take account only of the settled $40,000.
In effect, Ground one was not satisfactorily established, it is therefore dismissed.
The other Grounds touch on the principles governing amendments. They will therefore be dealt with together, and disposed of, in sequence, one after the other.
Now, an application for leave to amend pleadings in civil proceedings is governed by Order 28 rule 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (LN 140A). The oft quoted Court of Appeal case:
YEBOAH & OR. VRS. BOFOUR [1971] 2GLR 199 at 217 CA
explains the applicability of Order 28 rule 1, which permits amendments at any stage of the proceedings.
The Court said at 217:
“An amendment may be allowed before, or after the trial,
or even after judgment or on appeal. The 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 (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, (iii) it is not
sought to add new parties, (iv) 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; (v) the application
be made bona fide, and (vi) the proposed amendment will
not cause undue delay or is irrelevant or useless or would
merely raise a technical point.”
The issue now, is, will the proposed amendment add new parties to the suit.
The appellant sought leave to amend the title of the plaintiff, to delete “& Co” from “William Ofori & Co,” and to substitute in its place the new title: “WILLIAM OFORI” (carrying on business under the name and style of “William Ofori & Co.”
The argument in support of this ground is that “William Ofori & Co.” is not a legal entity that, there is no evidence anywhere in all the processes filed or in the Record to indicate that there is more than only one Plaintiff namely “William Ofori” who is trading as “William Ofori & Co.”
That, it is a grave error for the learned judge to hold that the proposed amendment in the title of this case would add new parties to the suit.
Now, it does not appear from the Record that any registered document was tendered at the court below to show the status or capacity of the plaintiff. But at least, one document which was tendered in evidence at the court below, assists this court in its quest for the status or capacity of “William Ofori & Co.” And this is the “Management Contract” executed between Social Security And National Insurance Trust (SSNIT) as (PROPERTY OWNERS) and “WILLIAM OFORI & CO. as (ESTATE MANAGERS).
See page 18 of the Record, William Ofori signed that contract for himself and on behalf of “William Ofori and Company.”
If William Ofori now says that he is the only one person parading as “William Ofori & Co.” and only trading as such, then the question is, does he appreciate that he was perpetrating fraud on the Respondents?
It is clear from the said Contract document that “William Ofori & Co” comprises a group of Estate Managers, including William Ofori himself.
An amendment to delete “& Co” from “William Ofori & Co” and to substitute same with “William Ofori” (carrying on business under the name and style of “William Ofori & Co,” will remove the other Estate Managers as plaintiffs; to leave “William Ofori” as the sole plaintiff.
The learned trial Judge concluded that, the amendment sought would add new parties if granted.
I, on my part rather hold that the amendment sought would delete the other plaintiffs, to the prejudice of the Respondents.
An appeal is a hearing. I have thus power under Rule 32 of C.I. 19 to make my order, or take any decision which the Lower Court could have made or taken.
Where an adult literate person has appended his signature to a document, as representing himself and a group of other persons, he will not be permitted, in a subsequent litigation between the same parties, to amend his case, to plead that he is the only one person parading as the group of persons.
The appeal on that ground is accordingly dismissed.
The next issue is whether the proposed amendment will change completely the nature of the appellant’s case.
Now, let me quote a portion of the appellant’s statement of case at page 2 of the statement.
“Lest it cause a misunderstanding the “Management Agreement”
at pages 18 to 31 of the Record tendered at the trial by the
defendant is NOT the agreement upon which the Plaintiff relies
in this suit. That agreement was abrogated at a meeting of the
parties by mutual consent and replaced by another agreement
which was to have been but never formalised . It is our submission
that the second agreement, though not in writing was and is still
legally valid. The plaintiff has discharged his obligation under the
agreement by selling, collecting and paying a total of US$8.2 million
to the defendant.”
It is clear from this statement that the purpose of the amendment sought is to enable the appellant reject the original written agreement, and to enforce second oral agreement which has not been formalised.
The learned trial Judge was therefore right in refusing the amendment sought, on the ground that, if granted, it would enable the appellant change completely the nature of his case. The appeal on this ground is also accordingly dismissed.
And lastly, was the application made bona fide. It is clear on the Record, that in the contractual or business relationship between the parties , the Respondents have always known the plaintiff as “William Ofori & Co.”
The plaintiff purchased a house from the Respondents in the name of “William Ofori & Co.” When part of the purchase – price remained unpaid, the Respondents sued
“William Ofori & Co” for the balance, and that was paid.
“William Ofori & Co” took up originating summons at the Court below against the Respondents, in the same name. He plaintiff again took this action in the same name “William Ofori & Co.”
The plaintiff now wants to be known as “William Ofori” (carrying on business in the name and style of “William Ofori & Co.”
Now, unless William Ofori has something up his sleeves for some hidden agenda, then as between him and the Respondents, this Court does not see the need to amend his title in the case; since he can always pursue any claim against the Respondents, in the same name “William Ofori & Co.”
In my humbly view, the amendment sought is either unless or is not made bona fide.
The appeal is in he circumstances, dismissed with costs.
Judgment of the Court below affirmed.
Let me conclude that there is no need for any formal amendment to delete the $40,000 from the original claim, since the parties are agreed that the debt has been settled. It can be ignored at the trial of the case at the court below.
I am done.
E. K. PIESARE
JUSTICE OF APPEAL
I agree. P.K. TWUMASI
JUSTICE OF APPEAL
I also agree. A. ASARE-KORANG
JUSTICE OF APPEAL
