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March 7, 1963
SUPREME COURT
GHANA
CORAM
JUDGMENT OF COURT
Ruling: After discussions with, and upon hearing, learned counsel for the parties, we are of the opinion that the record of appeal shows such gross irregularities as to warrant a re-hearing. Inter alia, no statement of defence was delivered by or on behalf of the first, second and third defendants and the co-defendant in answer to the amended statement of claim filed by leave of the court under Order 28, r. 6 of the Supreme [High] Court (Civil Procedure Rules), 1954, whereby the original statement of claim was wholly abandoned and the amended statement of claim substituted therefor; the fourth defendant on the other hand was not served and in consequence no statement of defence was delivered by him or on his behalf.
Notwithstanding these gross irregularities in limine, the trial proceeded upon the ruling of the learned trial judge who held, inter alia,
"I have gone through the amendment sought, paragraph by paragraph, with counsel in the case and reached the conclusion that the amendment does not materially affect the original issues. In my view it is more or less an attempt by counsel to clarify and elaborate his contention in the case. There will be no injustice done in granting leave to counsel to amend his statement of claim."
The application was granted in terms of the notice of amendment filed to which counsel for the first, second and third defendants and the co-defendant had earlier objected vehemently on the ground that it raises new issues from the original trial.
The trial being unsatisfactory as already indicated the judgment cannot stand. The appeal is accordingly allowed. The judgment together with the order as to costs is set aside; the case is remitted to the court below for re-hearing before another judge. The costs of the abortive trial to be borne by the parties. Any costs paid by the appellant pursuant to the order as to costs must be refunded to him. The appellant is awarded his costs in this court fixed at £G131 17s. 0d.
Court below to carry out.
DECISION
Order accordingly.
J. D.
AI Generated Summary
The Supreme Court, constituted by Justices SARKODEE-ADOO, CRABBE and BLAY J.S.C., allowed an appeal because the lower-court proceedings were marred by gross procedural irregularities. After hearing counsel, the Court noted that the amended statement of claim filed under Order 28, r. 6 of the Supreme [High] Court (Civil Procedure Rules), 1954 wholly replaced the original claim, yet no statements of defence were delivered by the first, second and third defendants and a co-defendant; moreover, the fourth defendant was not served. Despite the trial judge’s view that the amendment did not materially affect the original issues, the Supreme Court found the trial unsatisfactory, set aside the judgment and costs order, remitted the case for re-hearing before another judge, directed refunds of costs paid by the appellant, and awarded the appellant costs in the appellate court fixed at £G131 17s. 0d.