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May 10, 2018
HIGH COURT
GHANA
CORAM
Introduction:
[1] Traditionally, an application for an amendment of a writ or a pleading may be made at any stage of the proceedings.
A party may, without leave of the court, amend his/her writ at any time before the pleadings are closed.
It follows, therefore, that when pleadings are closed any party shall amend only with the leave of the court. [2] In this instant case, pleadings have long closed and thus, any application for amendment of the statement of claim and writ of summons shall be by leave of the court as the Court. [3] As it is provided in Order 16 r 5(1) of CI 47, subject to Order 4 rules 5&6 and other provisions of the 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 pleading; on such terms as to costs or otherwise as may be just and in such manner as it may direct. [4] By a Motion on Notice filed on April 6, 2018 the Plaintiff/Applicant seeks leave of the court to amend the Writ of Summons and the Statement of Claim of this suit.
The grounds upon which this instant application is being made are catalogued in the accompanying affidavit.
It has been averred that the amendment is necessary as it would assist this Honourable Court to effectively and completely determine and adjudicate on all the issues in this suit”. Arguments for and against Application: [5] In moving the application, learned Counsel for the Plaintiff/Applicant, Mr. Baffour Awuah relied on all the averments as set out in the accompanying affidavit and submitted that at all material times the Applicant has been under the impression that the Defendant was a limited liability company and therefore in both the Writ of Summons and the Amended Statement of Claim, it held and addressed the Defendant as such.
According to learned Counsel following a search conducted at the Registrar General’s Department a copy of which is attached as Exhibit BD1, the Applicant discovered that Phoenix Power is a business name and not a limited liability company.
According to Counsel, the effect is that there is a proprietor and the business person is one Tarek Nasser and the parent company is Aba Group Ltd. Accordingly in Counsel’s opinion if the amendment is made any judgment given may not be against the wrong entity or person. [6] Further learned Counsel posited that the instant application which is anchored on a search co
AI Generated Summary
The High Court, per Justice Kweku T. Ackaah-Boafo, considered a motion from the Plaintiff/Applicant, filed April 6, 2018, seeking leave to amend its Writ of Summons and Statement of Claim to correct the description of the Defendant. The Plaintiff, represented by Mr. Baffour Awuah, argued that a Registrar General9s Department search showed Phoenix Power is a business name, with Mr. Tarek Nasser linked and Aba Group Limited as parent. The Defendant, represented by Mr. Bobby Banson, opposed, asserting Phoenix Power is a registered subsidiary capable of suing and being sued and that the motion improperly alters party designation. Applying Order 16 of CI 47, Act 151, and authorities including Cropper v Smith and Barclays Bank v Lartey, the Court granted leave but tailored the amendment: Phoenix Power shall be described as a subsidiary of Aba Group Limited and Mr. Tarek Nasser joined as a second defendant. The Court found no prejudice, ordered filing within one week, and awarded Gh a2 1000 costs to the Defendant.