HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

OWUSU, JA: 

This is an appeal against the ruling of His Lordship G.B. Twum sitting as an additional Circuit court Judge at Agona Swedru on 26th of November 1998.

The plaintiffs/appellants herein, had applied to the Circuit Court for leave to amend their writ of summons and amended statement of claim in the middle of the trial in which they are claiming against the defendants jointly and severally the following relief:

(a) “Declaration of title to all that piece or parcel of land situated lying and being at Mansaade Nkokobre, Kyekyegya, Abodom Ekyiama, Odum, Brisu, Warasikom etc, in the vicinity of Agona Nyakrom which piece or parcel of land is bounded by the properties of Nana Adiako Bonsu, Tufuhene of Agona Nyakrom, Nana Kwakyer Poa, Kwaman Stool Nana Kwaku Nyam and Abodom Stool and Nana Gyinamowa.”

(b) “A declaration that defendants are mere licensees of a portion of the disputed land called Kyekyegya which shares boundary with Henry Saa Ayitey and Abodom Road.

(c)  “General Damages for trespass.

(d) “An order for ejectment or in the alternative an order for the payment of annual tribunal to plaintiffs stool

(e) “Perpetual injunction restraining defendants, their agents, servants etc, etc, from interfering with plaintiffs' title, rights and interest with respect to the disputed land”.

The defendants resisted the plaintiffs claim and in their statement of Defence, counter-claimed as follows:

(i) “Declaration of title to all that piece or parcel of land situate, lying and being at Agona Nyakrom commonly known as “Kyekyegya” which shares boundary with Kwa Fosu and Arkaa’s lands on the North, Dadzie's, a small stream and Kofi Amane’s lands on the South, Kwa Fosu’s land on the East and Dadzie’s land on the West.

(ii) “Declaration that the plaintiffs and their Ampiah Koko family are mere licensees on the “Kyekyegya Lands”.

(iii)  “General Damages for trespass.

(iv) “An order for ejectment or alternatively on order for the payment of annual tribute to the Defendants’ family.”

(v)  “Perpetual injunction restraining the defendants their agents, servants, etc, etc, from interfering with plaintiffs title, rights and interest with respect to plaintiffs stool.”

After several adjournments and series of amendments, when two Attorneys for the plaintiffs had given evidence and thirteen(13) witnesses had been called, the appellants herein filed another application asking for leave to amend once more the writ of summons and the amended statement of claim. 

The first Attorney Yaw Nkrumah died and was substituted by another Attorney. This application was struck out for want of prosecution and had to be relisted.

The defendants opposed the application and on 25/11/98, the trial court refused to grant the leave sought for and dismissed the application.

It is against this refusal that the Appellants have appealed to this court on the grounds that:

(i)  “The Learned Circuit Judge failed to give reasons for his ruling.”

(ii) “The Learned High Court Judge erred in law in refusing plaintiffs application for amendment when plaintiffs had not concluded their case and Plaintiffs’ new attorney who gave evidence de novo had not said any thing to contradict the amendment sought.

(iii) “The Learned Judge erred in law in refusing the amendment which had the purpose of delineating a particular area of a larger stretch of the disputed land which relief and when the amendment would not irreparably prejudice the case of defendants.”

From the record before this court the Appellants’ first ground of Appeal cannot stand as indeed His Lordship (sitting as additional Circuit Court Judge) did assign reasons for his ruling on 25/11/98 when the court pronounced on the application for leave to amend. Even though he had reserved his reasons to be given later, he on the same day assigned the reasons.

Under Order 28 rule 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A)—

“The court or a Judge may, at any stage of the Proceedings, allow either party to alter or amend his indorsement or pleading, in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in Controversy between the parties”.

Rule 6 under which the leave was sought states as follows:

“In all cases not provided for by the proceeding Rules of this Order, application for leave to amend may be made by either party to the court or a Judge, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.

The purpose of an amendment therefore is to assist the court “to determine the real question in controversy between the parties.”

The granting or refusal of an application for leave to amend pleadings is a matter entirely within the discretion of the trial Judge. The discretion to allow an amendment will be exercised in order that the real issues between the parties may be finally determined. See the case of YEBOA and Another VRS. BOFOUR [1971] 2 GLR 199.

In this case, what is the real issue between the parties with regard to the “Kyekyegya” Land? The plaintiffs are claiming declaration of title to a larger piece of land which they have described, in their writ of summons and which piece of land includes “Kyekyegya land”. The defendants in their counter-claim, seek a declaration of title to “Kyekyegya” land which they have particularly delineated.

The issues joined between the plaintiffs and defendants with regard to “Kyekyegya” land are—

Whether the defendants are mere licensees of the plaintiffs on the land; or

“where the defendants are allodia owners of the land and therefore are entitled to the declaration of title they seek.

The proposed amendment was couched in the following terms

Paragraph 4

By deleting the “Expression the area was called and substituting therefore the “ Expression one of the disputed parcels was called ……….

Paragraph 9

By deleting all the words after the Expression gave evidence and substituting the following “in which he mentioned boundaries of Kyekyegya as “ on the right side of Abodom Road by Henry Saa up to a cotton tree and from the cotton tree you get to Odum tree.” On the side of Abodom Road the land belongs to Henry Saa hence to Opanyin Ayitey’s land.”

Paragraph B

“In reality however Kyekyegya land is occupied by several distinct groups including some of the defendants relations, Royals from Ampiah Koko family etc, etc,and is a distinct hand within the wider Ampiah Koko boundaries and it is bounded as follows:

The property of Abueni/Aduamoah Yego family from Oda, Nana Kwakyer paa, Opanin Kweku Nyam’s farm at Kankankan being plaintiff’s land, Ghansah’s farm of Akwadaa Nkwanta (also Ampiah Koko land) Ama Duah’s farm. Mintah’s farm at Moseaso (also Ampiah Koko’s land) Kofi Nkansah Moseaso farm (a royal of Ampiah Koko) Mr. Ghansah’s second farm on Ampiah Koko Moseaso land Nana Ayitey’s farm and plaintiffs’ family burial grove.”

Paragraph 22(b)

“ to delete the words coming after “Kyekyegya” which shares boundaries with the property of Abueni/Aduamoah Yego family from Oda, Nana Kwakyer Poa, Opanyin Kweku Nyam’s farm at Kankankan, Kwaku Akam’s farm, also at Ghansah’s farm at Akwadaa Nkwanta (also Ampiah Koko land) Ama Duah farm at Moseaso/Ampiah Koko land. Kofi Nkansah Moseaso farm (a Royal of Ampiah Koko) Mr. Ghansah’s second farm on Ampiah Korkor Moseaso land, Nana Ayitey’s farm and plaintiff’s family burial grove.”

(iii)  Writ of Summons to delete boundaries in claim and substitute the boundaries in paragraph  22 as amended supra.

The Defendant/Respondents herein opposed the application on the following grounds among others, that

(1)  “The plaintiffs did not show the necessity for the amendment saying the amendment gives only one reason that is to say “there are a few knotty points that need to be straightened.”

(2)  The Plaintiffs have been in court and have called 15 witnesses and that to allow them to come at this stage to change the boundaries of Kyekyegya would work injustice on the defendants.

(3)  The plaintiffs’ lawful Attorney has given the boundaries of Kyekyegya land, Mr. Ghansah had done the same thing and since then 13 witnesses have spoken on behalf of the plaintiff.

(4) To allow the plaintiff to amend at this stage would amount to ignoring the proposition in YEBOA & ANOTHER VRS BOFOUR already referred to that, “An application for an amendment may be made as soon as the necessity arises.

(5) That a surprise would be sprung on the defendants if the application was allowed because when Ghansah was in the witness box he never said he owned any farm anywhere near Kyekyegya much less for the plaintiffs to claim that Ghansah was a boundary owner on two sides of Kyekyegya lands.     

(6)  The amendment would give the plaintiffs opportunity to set up an entirely new case with respect of Kyekyegya lands and would necessitate the calling and recalling of witnesses.

In the affidavit attached to the application the reason given for the amendment, was few knotty points to be straightened. These knotty points were however not set down.

Arguing the application however, Counsel stated that the proposed amendment, sought to amend the boundaries of Kyekyegya which had been described in the writ of summons and the amended statement of claim. He said by this, they were only trying to clarify the boundaries of “Kyekyegya” but not changing them. In the same breath, he said they were only changing the boundaries of “Kyekyegya”.

As a general rule, the court will allow an amendment even up to the last moment, provided that (i) no surprise results (ii) it does not enable a party to set up an entirely new case or to change completely the nature of his case, (iii) it is not sought to add new parties, (iv) it will not do any injury to the opponent’s case or prejudice him in some way which cannot be compensated by costs or otherwise,(v) the application be made bona-fide and (vi) the proposed amendment will  not cause undue delay or is irrelevant or useless or would merely raise a technical point.

In the case of CROPPER VRS SMITH [1883] 26 Ch. D700 at 710-11, Bowen L15, said and I quote:

“ It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for mistakes in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party…

In the case of TILDESLEY VRS HARPER [1872] 10 Ch. D393 at 396, Bramwell L. J. said: “My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.

The same principle was laid down in the case of CLARAPEDE VRS. COMMERCIAL UNION ASSOCIATION [1883] 32 W.R by Brett M.R. in the following words-“ However negligent or Careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs”.

I have referred to these cases to emphasis how, generally speaking, ready the courts are to allow such amendment “for the purpose of determining the real question in controversy between the parties to any proceedings.”

The Appellants’ second ground of Appeal is that “ the learned Judge erred in law in refusing  the application for amendment when plaintiffs had not concluded their case and plaintiff’s Attorney who gave evidence de novo had not said anything to contradict the amendment sought’.

Counsel in his statement referred to order 28 rule 1 and submitted that the operative words or expressions are “at any stage of the proceedings” allow …….in such a manner and on such terms as may be just………….

The rule goes on to say that “all such amendment shall be made as may be necessary for the purpose of determining all questions in controversy between the parties. In dealing with the application what the trial Judge had to consider was whether the proposed amendment was being brought so that the real issues in controversy between the parties can be effectually determined.

Each application therefore is to be determined on its merits having regard to all the circumstances of the case.

Order 28 rule 1 lays down the ambit within which  the Judge’s discretion may be exercised.

Where however the amendment sought for, is intended to over reach or fraudulent, the courts will refuse it. If it cannot be effected without injustice to the other party, the application for leave will be refused.

The application will also be refused if it is not promptly made. In this case the Plaintiffs/Appellants have had two occasions on which they could have amended the boundaries of this “Kyekyegya” lands but they failed to do so. Witnesses have given evidence in line with the boundaries as stated in the writ of summons and having regard to the proposed amendment, the boundaries of the “Kyekyegya” land would be changed drastically and according to the Defendant/Respondents, they would be put to great disadvantage.

Indeed as amendment takes effect from the date of the original document, and not from the date the amendment is made, the amendment sought for if it had been allowed, would have substituted the new “Kyekyegya” land for the  “Kyekyegya” land  as indorsed on the writ.

What then would have become of the evidence already given in respect of the Kyekyegya land as originally described?

The amendment if granted, would have necessitated calling new witnesses or recalling those already called to lead evidence in line with the new boundaries. Obviously, this would have occasioned unreasonable delay.

The trial Judge, after reviewing extensively, the general principles in dealing with such an application came to the following conclusion—

“I do not think the application is being brought so that the real issues in contention can be effectually dealt with”. If he found the proposed amendment unnecessary in determining the real issues with regard to “Kyekyegya” land before him, then he was justified in refusing the application.

When in the exercise of his discretion the trial Judge has come to this conclusion, the Court of Appeal will not interfere with the conclusion arrived at unless it is satisfied that the Judge applied a wrong principle or that the conclusion reached would work manifest injustice between the parties.

The ruling was given along Judicial principles and the Judge did not apply any wrong principles for which the court can interfere with the exercise of his discretion.

The trial Judge fell into no error in refusing the application. The plaintiffs relief (a), seeks a Declaration of title to a larger area of land of which “Kyekyegya” forms only a part and if that claim succeeds, it will include the “Kyekyegya” land.

The number of times that a party seeks to amend his indorsement or pleading is not a determining factor in considering the application. What matters is whether the application is brought for the purpose for which an amendment is intended.  

The fact that the defendants had been allowed three times to amend, is no reason why the plaintiffs application should have been allowed if it did not seek to achieve the purpose for which an amendment is intended.

On the whole, there is no merit in the appeal. Same fails and is hereby dismissed.

R. C. OWUSU (MS)

JUSTICE OF APPEAL.

BROBBEY, JA:

I agree.

S.A. BROBBEY

JUSTICE OF APPEAL

BENIN, JA:

I also agree.

A. A. BENIN

JUSTICE OF APPEAL

COUNSEL

*vdm*