BEDSTUY LIMITED vs PHOENIX POWER
2018
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
Areas of Law
- Civil Procedure
- Commercial Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiff/Applicant requested the court to grant leave to amend the Writ of Summons and Statement of Claim because they incorrectly identified the defendant, Phoenix Power, as a limited liability company instead of a business name. The Defendant/Respondent objected, claiming Phoenix Power is a subsidiary, not a sole proprietorship. Citing statutory provisions, precedents, and the substantive merits, the court granted the amendment, allowing Phoenix Power to be described as a subsidiary of Aba Group Limited and including Tarek Nasser as the second defendant, concluding it would not prejudice the Defendant’s case.
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