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On 14th April, 2011
the Plaintiff herein issued a
writ in this Court against
Manyako Enterprise Limited as
the sole defendant claiming the
reliefs therein endorsed. The
said defendant who was served
with the writ by substitution
entered conditional appearance
on 15th June, 2011.
Subsequently on 13th
July, 2011 the Plaintiff filed
an amended writ and statement of
claim and named Manyako
enterprise Limited, Mr. Nelson
and Mr. Nelson, trading under
the name and style of Lypons
Enterprise as 1st, 2nd
and 3rd defendants
respectively. It is as a result
of this amendment that Nelson
Adjei Manyah on 31st
October, 2011 filed an
application to set aside the
amended writ of summons and
amended statement of claim under
the inherent jurisdiction of the
court and Order 4 Rule 5 and
Order 16 Rules 3 and 4 of the
High Court (Civil Procedure)
Rules, 2005 (C.I. 47)
The main ground in support of
the instant application is that
it is wrong in law and procedure
for the plaintiff to amend
without seeking leave of the
Court.
By Order 16, Rule 1(1) of C.I.
47 the plaintiff is entitled to
amend the writ of summons once
without leave of the court any
time before the pleadings are
closed.
Similarly by Order 16, Rule 3
(1) of C.I. 47 the plaintiff is
entitled to amend its statement
of claim without leave of the
Court any time before the
pleadings are closed.
Order 11, Rule 19 provides for
the time when pleadings are
closed. It states as follows:
“19 (1)The pleadings in an
action are closed, (a) at the
expiration of seven days after
service of the reply or , if
there is no reply but only a
defence to a counterclaim, after
service of the defence to
counterclaim, or (b) if neither
a reply nor a defence to
counterclaim is served, at the
expiration of seven days after
service of the defence …”
In this case Manyako Enterprise
Limited as defendant was served
by substitution and he entered
conditional appearance on 15th
June 2011. By Order 9, Rules 7
and 8 of C.I. 47 the defendant
was expected to apply to the
Court within fourteen days from
15th June, 2011 for
an order to set aside the wit or
service of the writ on it
failure of which the conditional
appearance would be treated as
an unconditional appearance. In
other words after 29th
June, 2011 the defendant was
deemed to have entered
unconditional appearance to the
writ of summons since he had not
applied to set it aside.
By Order 11, Rule 2, of C.I. 47
the defendant had fourteen days
after 29th June, 2011
to file a defence to the action
if he intended to do so. That
is to say that the defendant had
up to 13th July, 2011
to file his defence. The
defendant did not file any
defence before the plaintiff
filed its amended writ of
summons and statement of claim
on 13th July, 2011.
So by the provisions of Order
11, Rule 19(1) of C.I. 47
pleadings had not closed by 13th
July, 2011 when the Plaintiff
amended its writ of summons and
statement of claim. By Order
16, rules 1(1) and 3(1) of C.I.
47 the plaintiff was entitled to
amend without leave of the
Court.
From the above it is clear that
the plaintiff complied with the
rules of Court in amending the
writ of summons and statement of
claim without leave of the
court. The application to set
same aside is thus unmeritorious
and an abuse of the processes of
the Court.
The instant application is
accordingly dismissed.
(SGD): UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
*aq*
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