|
Practice and procedure – Writ –
Amendment – Application to amend
after judgment – Whether trial
court has power to grant
amendment – Whether appeal court
may grant amendment – Court of
Appeal Rules 1962 (LI 218) rr 31
and 32.
The plaintiff sued the
defendants in the High Court for
damages for conversion of the
plaintiff’s shipping containers.
The 1st defendant submitted to
the claim for general damages in
the course of the trial and the
trial judge entered judgment
accordingly. The trial judge
conceded that the plaintiff was
entitled to damages for loss of
use but disallowed it because it
was not endorsed in the writ.
Four days after the judgment,
the plaintiff sought leave to
amend the endorsement and
statement of claim with a claim
for damages for loss of use but
the trial judge held that he had
no power to grant such
application. The plaintiff
argued on appeal that the trial
judge erred as the claim was
indeed pleaded in the statement
of claim and evidence was
adduced thereon. Counsel for the
defendant on the other hand
argued that the claim for loss
of profits was not
particularised as special
damages in the statement of
claim neither was it endorsed in
the writ of summons.
Held:
(1) The trial judge rightly
refused the unprecedented
application for amendment four
days after the judgment.
Amendment could be sought during
the trial, at the delivery of
judgment or immediately after
judgment but before the judge
rose from court. Yeboa v
Bofour [1971] 2 GLR 199, CA,
Rainy v Bravo (1872) 36
JP 788, PC, James v Smith
(1891) 1 Ch D 384, Priest
Bobo v Anthony (1931) 1 WACA
169 and Wyatt v
Roshuerville Gardens Co
(1866) 2 TLR 282 referred to.
(2) An appellate court would
entertain such belated
application under rr 31 and 32
of the Court of Appeal Rules
1962 (LI 218) because an appeal
was a rehearing. There being no
dispute that the plaintiff was
deprived of profits it was fair
to grant the amendment for all
matters in controversy to be
determined once and for all.
Yeboa v Bofour [1971] 2 GLR
199, CA, Tildesley v Harper
(1878) 10 Ch D 393, CA
referred to.
(3) The argument that the claims
were neither particularised in
the statement of claim nor
endorsed in the writ was
unimpressive as the 1st
defendants in the course of the
trial submitted to judgment on
the claim for damages for
conversion.
Cases referred to:
Ilkiw v Samuels
[1963] 2 All ER 879, [1963] 1
WLR 991, 107 Sol Jo 680, CA.
James v Smith
[1891] 1 Ch D 384, 63 LT 524, 39
WR 396.
Nkyi XI v Kumah
[1959] GLR 281, CA.
England v Palmer
(1955) 14 WACA 659.
Priest Bobo v Anthony
(1931) 1 WACA 169.
Rainy v Bravo
(1872) 36 JP 788, LR 4 PC
287, 27 LT 249, 20 WR 873, 9
Moore (NS) 35, 17 ER 427, PC.
Robertson v Reindorf
[1971] 2 GLR 289.
Tildesley v Harper
(1878) 10 Ch D 393, 48 LJCh 495,
39 LT 552, 27 WR 249, CA.
Wyatt v Rosherville Gardens Co
(1866) 2 TLR 282.
Yeboa v Bofour
[1971] 2 GLR 199, CA.
Yeboah v Kwakye
[1972] 2 GLR 39, CA.
APPEAL against the judgment of
the High Court to the Court of
Appeal.
E S Aidoo
for the appellant.
Stanley Amarteifio
with Mrs Ewool for the
1st respondents.
ADJABENG JA.
On 9 July 1990, the
plaintiff-appellant herein took
action against the
defendants-respondents at the
High Court, Accra, and claimed
as follows:
“The plaintiff’s claim is
against the defendants jointly
and severally for wrongfully
depriving the plaintiff of 23
containers and refusing to
deliver same up to the plaintiff
and converting the containers to
their own use and for damages.”
In paragraphs 12, 13 and 14 of
the statement of claim, which
was, filed subsequently, the
plaintiff averred as follows:
“12. In consequence of such
conversion the plaintiff was
prevented from leasing out its
shipping containers and its
interest in them and lost all
the income that it would have
received for the same and has
incurred considerable expenses
in conducting correspondence and
sending agents from the United
Kingdom for the release of the
containers.
13. The value of the said 23
containers (ie the depreciated
replacement value) as at August
1984, was sixty five thousand
two hundred and seventy nine
pounds and the plaintiff claims
additionally interest on that
amount at the rate currently
charged by the commercial banks.
14. Wherefore the plaintiff
claims the amount stated or
indicated in the last two
paragraphs and damages from the
defendants jointly and
severally.”
The defendants, in their
statements of defence, denied
that they were liable to the
plaintiff’s claim. In the trial
that ensued, however, only the
1st defendants took part. The
2nd defendant did not attend the
trial. During the addresses,
counsel for the 1st defendant
corporation, according to the
trial judge, “conceded that
since the second defendant did
not participate in the
proceedings it would be futile
if he persisted in his stand
that the first defendants were
not liable. He therefore
submitted that the only issue
left for determination of the
court as between the plaintiff
and the first defendants be the
assessments of damages.” The
trial judge made the following
determination:
“It seems therefore that in
determining the depreciated
value of the containers the time
we have to take into account
would be 1989 when the first
defendants committed the
trespass complained of.
Therefore going by exhibit 1
which was tendered in evidence
by 1st defendants I am of the
view that taking into account
world inflationary trends, which
I take judicial notice of £700
per each container would be a
fair measure of what the
plaintiff is entitled to claim
from the defendants.”
The trial judge accordingly
awarded the total sum of £16,100
against the defendants jointly
and severally as the depreciated
value of the 23 containers in
issue at £700 per container.
In respect of the loss of use of
the said containers which the
plaintiff mentioned in paragraph
12 of their statement of claim,
and in respect of which PW1, who
had flown from United Kingdom,
gave evidence and indeed exhibit
H, the trial judge was of the
view that the plaintiff was not
entitled to any damages for loss
of use:
“Counsel for the plaintiff has
also drawn court’s attention as
to what was lost to the
plaintiff as a result of the
conversion and for which the
plaintiff must be compensated.
With due deference to learned
counsel for the plaintiff it
must be pointed out that the
indorsement on the writ does not
mention any claim for special
damages. As referred to in
Flemming’s Law of Torts
(supra) the claim for special
damages for the loss which the
plaintiff suffered as a result
of the defendants’ conduct would
be in place. However the
plaintiff’s pleading was silent
on any claim for special
damages. Therefore as against
the first and second defendants
the plaintiff cannot succeed in
its claim for special damages
for loss of use.”
The plaintiff was not satisfied
with the judgment and so after
the reading of the same, the
plaintiff applied to the trial
judge for leave to amend the
indorsement on the writ and the
statement of claim for the
purpose of claiming special
damages for loss of use as they
had already adduced evidence on
their claim. The trial judge
refused to grant the application
on the ground that he had no
power to grant it after he had
delivered his judgment since the
application was not for the
correction of any clerical
mistakes or accidental slips or
omissions in his judgment as
provided for by order 28 rule 11
of the High Court (Civil
Procedure) Rules 1954 (LN 140A).
The plaintiff appeals to this
court against the ruling and
also some aspects of the
original judgment. The grounds
of appeal are as follows:
“(1) The learned trial judge
erred in refusing to award
damages for the loss of use of
the said containers;
(2) The learned trial judge was
wrong in refusing to grant the
application for the
plaintiff-appellant for leave to
amend his pleading after the
reading of the said judgment;
(3) The learned trial judge
erred in the assessment of the
general damages; and
(4) The amount of costs awarded
to the plaintiff clearly shows
that the learned trial judge
failed to take into account
several important factors.”
Arguing these grounds together,
counsel for the appellant first
submitted that the trial judge
was wrong in refusing to grant
leave to amend the writ of
summons and the statement of
claim in respect of the claim
for loss of use since evidence
had already been adduced on the
issue. Counsel argued that the
trial court had power to allow
the amendment even after the
delivery of the judgment.
Counsel’s view is that an
amendment after judgment is part
of the proceeding referred to in
Order 28 rule 1 of the High
Court Rules. He relied on the
cases of Nkyi XI v Kumah
[1959] GLR 281 at 285 CA,
England v Palmer (1955) 14
WACA 659 at 660-1 and
Ilkiw v Samuels [1963] 2 All
ER 879. Counsel submitted that
even though the writ of summons
had not been indorsed with
special damages, yet these have
been pleaded in paragraphs 12-14
of the statement of claim and
that evidence was adduced
thereon. And that for these
reasons the trial judge should
have granted the amendment.
Counsel, however submitted that
in any case this court could
grant the amendment, and that
this would not work any
injustice on the defendant since
evidence on the special damages
for loss of use sought to be
brought in had already been
adduced and is on the record and
that the principles stated by
the Court of Appeal in the case
of Yeboa v Bofour [1971]
2 GLR 199 had been
satisfied. He therefore invited
us to grant leave for the
amendments. Counsel for the
respondents disagreed with the
contention by the appellant’s
counsel that the trial judge was
wrong in refusing to grant the
amendment sought after the
judgment had been delivered.
Counsel however conceded that
this court had power to grant
the amendments sought.
Nevertheless, counsel for the
respondents invited us not to
grant leave for the amendments.
He argued that even though the
appellants mentioned loss of
profits in their statement of
claim, they neither
particularised this loss which
is a special damage, nor did
they indorse the same on their
writ of summons. He relied on
the cases of Robertson v
Reindorf [1971] 2 GLR 289 at
297 and Yeboah v
Kwakye [1972] 2 GLR
39.
I think that only two simple
issues call for determination in
this appeal. The first issue is
whether or not the trial judge
was wrong in refusing to allow
the amendments sought by the
appellant after judgment had
been delivered. And the second
issue is whether it would be
proper for this court to grant
the said amendments as
requested. As regards the first
issue, I must say that I have no
doubt that the trial judge was
right in refusing to allow the
appellant to amend its writ of
summons and statement of claim
some days after the trial judge
had delivered his judgment. I
have noticed that the
application was filed four days
after judgment had been
delivered.
I have not found any precedent
where the amendment was granted
days after judgment had been
delivered. The nearest situation
can be found in the case of
Yeboa v Bofour (supra) where
the trial judge after he had
concluded his judgment, but
before he could sign it, granted
an application made orally for
the amendment of the claim for
damages so that the amount of
damages claimed could be raised
from ¢400 to ¢4,000. On appeal
against the grant, the Court of
Appeal confirmed the grant of
the amendment. In the English
case of Rainy v Bravo
(1872) 36 JP 788, PC the
plaintiff sought an amendment in
the course of the reading of the
judgement. The trial judge
refused the application. But on
appeal to the Privy Council,
their Lordships thought it
proper to direct that the
amendment be made in their own
words, “even at this last
moment.” See also the cases of
James v Smith (1891) 1 CH
384, Priest Bobo v Anthony
(1931) 1 WACA 169 and
Wyatt v Rosherville Gardens
Co (1866) 2 TLR 282,
which were all mentioned in
Yeboa v Bofour (supra). It
is clear therefore that the
authorities supported the
situation where the amendment
was sought during the trial, at
the time of the delivery of the
judgment, or immediately after
the delivery of the judgment but
before the judge rose. I am not
talking about a situation where
Order 28 Rule 11 of the High
Court Rules is invoked to
correct clerical mistakes or
accidental slips or omissions.
It seems to me that only the
appellate court can intervene in
a situation like the one the
appellant faced in this case. I
do not see how the trial court
could have rightly granted the
appellant’s amendment in issue
days after the judgment had been
pronounced when the application
therefore was not one brought
under Order 28 rule 11 of the
High Court Rules. The appellate
court can entertain such an
application on appeal, it seems
to me, only because an appeal is
generally a rehearing of the
whole case. See rules 31 and 32
of the Court of Appeal Rules
1962 (LI 218). It is not
surprising therefore that the
case of Nkyi XI v Kumah
(supra) and England v Palmer
cited by counsel for the
appellant are cases in which the
amendments granted were granted
by appellate courts.
In the present case counsel for
the respondents conceded that
this court has power to grant
the amendments sought by the
appellant. Counsel however
invited us not to grant the
amendments. Counsel’s reason is
that the damages for loss of
profits were neither indorsed on
the writ, nor were they
particularised in the statement
of claim even though they were
mentioned therein.
I must say that I am not
impressed by these arguments. As
the trial judge rightly held in
his judgment, the plaintiff
would normally be entitled to
damages for loss of profits
arising from the conversion by
the defendants of the
plaintiff’s 23 containers. The
learned trial judge however said
he could not make any award
because the plaintiff had failed
to indorse on the writ of
summons a claim for special
damages for loss of profits. It
must not be forgotten that the
1st defendant in the course of
the trial submitted to judgment
on the plaintiff’s claim for
damages for conversion. So far
as the 2nd defendant is
concerned, he never contested
the action at all.
There is no dispute that the
plaintiff’s 23 containers have
since 1984 been with the 1st
defendant and thus the plaintiff
whose business was the leasing
of such containers for a fee has
since then been deprived of the
profits which it would have
derived from the leasing of
these containers. In such
circumstances, it would be only
fair and just to allow the
plaintiff to amend the writ and
statement of claim so that it
can pursue the claims, which it
thinks it is entitled to. This
will make it possible for all
the matters in controversy
between the parties to be
finally determined once and for
all, especially when, as argued
by the plaintiff’s counsel,
evidence in respect of the
amendments has already been
adduced and is on the record.
As counsel for the plaintiff
submitted, the amendments would
not cause any injustice or
surprise to the defendants as
the evidence was not objected
to. Indeed, PW1, who had flown
from United Kingdom to give
evidence, was cross-examined on
these matters.
Azu Crabbe JSC in the case of
Yeboa v Bofour (supra) at p
217 stated the general guiding
principles in such matters as
follows:
“The general principles which
should guide a court in granting
leave to amend pleadings have
been stated in numerous cases.
In Cropper v Smith (1884)
26 Ch D 700 at pp.710-711, CA,
Bowen LJ said that:
‘It is a well established
principle that the object of
Courts is to decide the rights
of the parties, and not to
punish them for mistakes they
make 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 over-reach, the
Court ought not to correct, if
it can be done without injustice
to the other party. Courts do
not exist for the sake of
discipline, but for the sake of
deciding matters in controversy,
and I do not regard such
amendment as a matter of favour
or of grace… It seems to me that
as soon as it appears that the
way in which a party has framed
his case will not lead to a
decision of the real matter in
controversy, it is as much a
matter of right on his part to
have it corrected, if it can be
done without injustice, as
anything else in the case is a
matter of right.’
In Tildesley v Harper
(1878) 10 Ch D 393 at pages
396-397, CA Bramwell LJ also
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.’ ”
Having considered all the
relevant matters in this appeal,
I have come to the conclusion
that leave ought to be granted
to the plaintiff to amend the
writ of summons and the
statement of claim in terms as
set out in the application for
leave to amend. The matter
should then be remitted to the
trial court to enable the court
of first instance consider the
evidence on the record adduced
in support of the matters the
subject matter of the amendment,
and to determine the damages for
loss of profits, if any, and
other remedies that the
plaintiff may be found to be
entitled to. I must say,
however, that the award of
£16,100 made by the trial court
as the depreciated replacement
value of the 23 containers must
not be disturbed as that award
is amply supported by the
evidence on the record.
For the reasons and the purposes
stated above the appeal is
allowed.
LAMPTEY JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner
|
