CAL MERCHANT BANK LTD v. FRED OWARE

On 30 April 2008, the High Court in Accra refused a motion by a banking company to amend its writ and statement of claim in its suit seeking refund of c67,032,000 paid as part rent for premises at No. 11A & 11B Ellis Avenue, Nyhiaeso, Kumasi. The company asserted that, following Suit No. Misc 1691/1996, Securities Discount Company v Fred Oware, judgment had declared Securities Discount Company’s entitlement to No. 23 Ellis Avenue, Nhyiaso, Kumasi, and that Securities Discount Company had recovered possession, showing the lessor was not the bona fide owner of the property purportedly let. On appeal, Justice P. Bright Mensah JA, applying Order 16 r 5 of C.I 47 and established amendment principles, held the trial judge wrongly exercised discretion by branding the application as mala fides and as raising a new cause. The Court of Appeal further held that a judgment remains valid until set aside, that the amendment arose from substantially the same facts and would not prejudice the opponent, allowed the amendment, remitted the case to the High Court, and awarded GH5000 costs.