MICRO MOBILE LINKS LIMITED v. MILLICOM GHANA COMPANY LIMITED
2018
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The ruling addresses a preliminary legal objection raised by the plaintiff regarding the defendant's application to amend its statement of defense. The objection was based on the failure to specify the exact nature of the amendment, which allegedly violated Order 16 rule 11(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47). The defendant argued that the details were in the proposed amended statement of defense and suggested that Order 81 could remedy any irregularity. The court, citing principles from cases such as Gurdial Singh vs. Raj Kumar Aneja and Kedar Nath & Ors. vs. Ram Parkash, found that the application did not meet the specific requirements of Order 16 rule 11(2) and that non-compliance affected jurisdiction, rendering the application incompetent.
RULING
This ruling concerns a preliminary legal objection taken to the application for amendment of the statement of defence by the defendant/applicant herein. The objection relates to the nature of the amendment. It is counsel for the plaintiff/respondent’s contention that the application is incompetent, as counsel for the applicant did not specify precisely the nature of the amendment but rather attached to the application a proposed amended statement of defence. Counsel submits that the application is in violation of Order 16 rule 11(2) of the High Court (Civil Procedure) Rules, 2004 (CI 47).
Counsel for the applicant is opposed to the objection and contends that the precise nature of the amendment has been incorporated in the proposed statement of defence. He submits that counsel for the plaintiff’s objection is a complete misapplication of Order 16 rule 11 and that the sub rules bear the application out. Besides, assuming, counsel for the plaintiff’s interpretation is right, he submits that Order 81 can cure the irregularity. The point I am called upon to decide is whether the affidavit in support of the motion and the proposed amended statement of defence annexed by the applicant to the instant application satisfy the requirements under Order 16 rule 11 particularly rule 11(2). Order 16 rule 11 provides:
“Rule 11—Method of Applying for Leave
(1) An application for leave to amend a writ or a pleading shall be made on notice to all the other parties to the action.
(2) The application shall specify precisely the nature of the amendment intended to be made.
(3) An affidavit may be used in an application for leave to amend under this rule.”
An amendment may be made to introduce a new cause of action, correct an error in the pleadings or replace an admission made among others. It is, therefore, necessary to ensure that the nature of the amendment must be apparent on the face of the application. The Indian Supreme Court in the case of Gurdial Singh vs. Raj Kumar Aneja, (2002)2 SCC dealt with the nature of amendments. In para 13 of the report, the Honourable Supreme Court held as follows:-
“13. .... Unless and until the court is told how and in what manner the pleading originally submitted to the court is proposed to be altered or amended, the court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so