The present application to strike out the Defendant’s defence and for judgment to be entered for the Plaintiff was filed on 15th January 2019. Subsequent to this application, the Defendant applied on 5th March 2019, for leave to amend its defence, obviously provoked by the earlier application filed on the 15th of January, 2019. I will deal with the application for leave to amend the Defendant’s defence first before proceeding to address the present application before this Court.
In the application to strike out the Defendant’s statement of defence, the Plaintiff’s plaint, amongst others, relates to paragraph 3 of the statement of defence, that is, the application attacks averments contained in the said paragraph 3 of the defence.
Paragraph 3 of the statement of defence states as follows: The Defendant denies Plaintiff’s paragraphs 4, 5, 6, 7, 8, 9 and 10 of the Statement of Claim and further say that they have made substantial payments of the goods supplied and do not owe what the Plaintiff is demanding.
The Defendant in order to defeat that portion of the application seeks leave to amend the alleged offending paragraph 3 of the statement of defence to make a new averment or correctional averment.
This is frowned upon by the law.
The position of the law per the case of NKRUMAH VERSUS SERWAH AND OTHERS [1984-86] 1 GLR 190 is that, an application for amendment filed to defeat a pending motion ought not to be granted.
The Court at page 198 of the judgment stated thus: The granting or refusal of the application for leave to amend pleadings is discretionary, and the Court of Appeal will not interfere with the exercise of that discretion unless it is satisfied that the trial judge applied a wrong principle or it can be said that he reached a conclusion which would work manifest injustice: see Yeboah v. Bofour [1971] 2 G. L. R 199, C. A. We are satisfied that the proposed amendment sought to reconstruct or alter the character of the plaintiff’s case and that the trial judge properly rejected it.
Even if the amendment had been allowed, we feel that the evidence given to support it would have so conflicted with the prior evidence proffered by and on behalf of the plaintiff that he could not have derived any advantage from it.
I will therefore strike out the application seeking to amend portions of the statement of defence filed on 5th March 2019. I shall turn to the earlier motion to strike out the defence.
That application is brought under Order 11 ru
