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MARGARET
INSAIDOO J (MS).
RULING
This is an application on notice
by the 2nd Defendant
praying for leave to amend 2nd
Defendant's Statement of Defence.
Counsel relied primarily on
matters raised at the Pre-Trial
Conference as being the rationale
for the proposed amendment.
"
We are saying that upon a
further reflection at pre-trial,
we have found it necessary to
amend the Statement of Defence. "
The amendment seeks to amend (1)
paragraph 4 of their original
Statement of Defence dated 6th
July 2006 by substituting same
with paragraph 4(b), 4(c), 4(d)
and 4(e).
Further, they have laid down the
particulars of fraud by the
Plaintiff and 1st
Defendant. The essence of the
amendment is that 2nd
Defendant did not consent to his
property being used as collateral
for the Bond.
As for as he was concerned,
although he had used that same
security earlier, the facility
lapsed by 27/10/2005. But he had
not extended it, thus the need to
amend his Statement of Defence.
Counsel urged the court to answer
their prayer because, it would not
be a surprise to the Plaintiff.
The Plaintiff in response
vehemently opposed this
application on the following
grounds.
a)
The applicant was re-arguing an
application that had been struck
out by this court and therefore
the application was incompetent.
b)
The application had been brought
mala fide since applicants
are referring to prejudicial
matters raised during pre-trial
conference.
Order 58 Rule 4 (5)
Reads as follows:
11 Any disclosures made or
documents presented at the
pre-trial conference shall
be without prejudice. rr
The applicant here is seeking to
rely on matters raised during
Pre-Trial Conference to amend the
original defence.
Originally, the 1st and
2nd Defendants made
joint 'averments denying
liability. No allegation of fraud
was made. The Plaintiff indicated
that Mrs. Stella Appenteng an
officer of the 1st
Defendant Company is the person
who authorized the Plaintiff to
use the Bond for Apstar Airlines.
They then relied on the document
that the 2nd Defendant
offered to cover the bond for the
1st Defendant Company.
Mrs. Stella Appenteng is a
Director of both the 1st
Defendant Company and Apstar Tours
and also the wife of the 2nd
Defendant.
In the view of the Respondents,
the allegation of fraud is
misdirected.
CONCLUSION
In Dikvi vs. Ameen Sanqari r19921
2 GLR 380
The term "without prejudice" was
defined by Earl Jowitt as follows:
"
The term is given to overtures and
communications between parties in
the course of negotiation, or
between litigants before action,
or after action, but before trial
or verdict. The words import an
understanding that if the
negotiation fails, nothing that
has passed shall be taken
advantage of thereafter; so, if a
defendant offers, 'without
prejudice,
,
to pay half the claim, the
plaintiff must not rely on the
offer as an admission of his
having a right to some payment. "
In Ahuma vs. Akorli r197511 GLR
415
It was held " That public policy
demanded that statements made
without prejudice in an attempt to
settle a dispute be excluded as
evidence in a case.
NB:
In that case, the Defendants did
not seek to make use of the term
of the letter nor did he seek to
show how those terms were dealt
with in negotiations between him
and his adversary. No prejudice
was suffered by him or his
opponent on that score. The letter
was admitted for the purpose of
proving the signature of its
author.
Having read all the submissions of
counsel and all the authorities,
it is my considered opinion that
this court ought to be wary of
encouraging matters that are
raised in pre-trial being brought
up at trial without the consent of
the parties.
Order 58 Rule 4 (5) in my view is
a mandatory provision and the
effect of allowing this
application in my view will defeat
the purpose of the confidentiality
of the pre-trial settlement
conference.
It will also offend the Rules or
the commercial Court.
Additionally, in substance and in
form, the proposed amendment seeks
to introduce a completely new case
for the defence.
Ordinarily, I would allow an
amendment since it would enable
all the matters in controversy
pertaining to a suit be
effectively determined as in Order
16 Rule 5. However, I am unable to
accede to the request of the
applicant to exercise the
discretionary power given me in
that rule and grant the applicant
leave, in this instance.
It is patently clear that, the
Applicant is seeking to replace
his original defence with a new
one, contrary to the rule in
Order 11 Rule 10 (1) which
states that:
A
party shall not in any pleading
make any allegation of fact or
raise any new ground or claims/
inconsistent with a previous
pleading made by the party"
Order 11 Rule 10 (2)
Subrule
(1) shall not be taken as
limiting the right of a party to
amend or apply for leave to amend
previous pleading of the party in
order to plead allegations or
claims in the alternative."
HOWEVER, the Applicant is not
seeking these reliefs in the
alternative here, as pertains in
the penultimate paragraph.
For the above reasons,
particularly Order 58 Rule 4 (5)
and policy issues. And indeed for
the reason for the rule in LA
ROCHE V. AMSTRONG [1922] IKB
485 at 489 by Lush J.; that;
"There is ~o authority upon the
point, but my reason is that to
rule otherwise would in many cases
make negotiation for the
settlement of litigation almost
impossible. Unless parties to
such negotiation can feel safe in
making an offer and stating the
facts upon which is based, the
door to negotiations may be
closed. It is for the benefit of
litigants and others that
statement should be freely made in
order to settle litigation";
I
refuse this application and
disallow the proposed amendments
on the ground that it seeks to
import disclosures and material
facts from the pre-trial
conference and offends against the
rules.
(SGD.) MARGARET INSAIDOO J (MS)
PARTIES ABSENT
COUNSEL:
MRS. ANDERSON YEBOAH FOR THE 2ND
DEFENDANT
MAJ. RTD. GYASI FOR
PLAINTIFF/RESPONDENT BEING LED BY
GEORGE SARPONG
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