Mojibola Bal-Adams v Simah Kamara And Another (MISC APP 2 of 1995) [1995] SLCA 3 (9 February 1995)

Misc. App 2/95 ; ~ IN-THE COURT OF APPEAL FOR STERRA LEON D BETWEEN: al MOJIBOLA BAL-ADAME - (ADMINISTRATRIX OF THE ESTATE OF ISHMAEL CHARLES PRATT) om APPELLANT/APPLICANT AND SIMAH KAMARA : (ADMINISTRATOR GF THE ESTATE OF LAHAT KAMARA)

ALHAIL WURIE JALLOW ne RESPONDENTS

Coram

HOM MR JUSTICE M0 AGOPHY -JA . HON MR JUSTICE G GELAGA KING TA HON MR JUSTICE 44% THMBO ~JA : kn BULINC Ne IVIER ED Obl ME BAY OP RKHRUARY, L9Be O. SHLAGAAING TA. The Applicant, by Notice of Motion died the 10th day of Joanary, 1995, seoved this Court for an onder, iotey alla, thai che Appellant iy the utadicy iutifed CivlApp 41/89 and the Pheintitf tx. the High Court action C.C4°/85 be aio jewvs to amend the writ of suamnor dated ZInd “on, 1985, te the manner wrderlined ced in the copy of she weir of summons exhibited to “hs afiidavil in support. ‘The rose cdents opposed din application. a Counsel for ihe Applicant submited chat purely in the fight of the new evidence thic Cour eBowed the respondents to adduce, it veld be ia the interest of justice to amend the writ of summtoms in She manner indicated to enable this Court, effectually ani completely to adjudicate upon and settle afl questions involved ix this appeal generally. The respondents, te on the other hand, submitted that to allow the amendment would be an injustice - that 23 when this matter was instituted in the High Court the Applicant had no locus standi - ibat not even this amendment will cloak the Applicint with locus standi in the Coutt below ~ that the Applicant had divested the estate to the encficiatios and that there is no evidence to show that the Applicant has a Power of Attorncy to act on behalf of the co-benefiviaries. ft scoms to me that the principal questions whi arice for determination ave whethar this aK Court has power fo grant the amendmen! sougat; if i has, whether it ic in tie daterest of Justice to grant it. ‘To answer the firet questic: fixci, T shatl refer to 1.31 of this Court's rales, PN. Ne 29 of 1985. That rule provides, iter alfa, drat fais Gauri “vany {rom tine to tine make any order necessary Ser determniaing the cual ystustion “2 contezvevay in the sppeal......and genually shall have aa fw jurisdiction over the whe ie prococdings an if ib

proceedings had been instituted and prosecuted in ths Court as a Court of first instance...” This Court, therefore, not only has its own appellate power but has also all the powers of the High Court. There is a similar provision in the Whits Book of 1960, 0.58 r.9. Under the rubric: Amendment of trial and pleadings, it is nisted that “the Court of Appeal haa an

5 inherent power to order the record of the trial to be smended so as to comply with the facts proved and the decision given ...ared also to allow the pleadings tp be amended” And under O, 24 r. 1 of the High Court Rules that Court and, a fortion , this Court “may at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and ail such amendments shail Se made a3 may be necessary for the purpose of determining the real questions. in controversy between the parties,” It is crystal clear to me, therefore, that this Court has abundant power to grant the amendment sought,

I now turn to the next question: whether it is in the interest of justice to grant the amendment. The guiding principle of cardinal importance here is to be found in O. 24 r. 1 of the H.C.R.(supra) that all such amendments ought to be made for the purpose of determining the real question in controversy betwern tho parties to any proceedings or of correcting any defect or error in any procecdingy. in this regard, I am guided by the erudite and elegant dictim of Bowen L.J., which I accept and adopt, in the case of Cropper v,_ Smith (1884) 26 Ch.D..700 af 7/9,711: “T think 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 which they mako in the conduui of their cases by deciding otherwise than in accordance with their rights. .. I know of no kind of error or mistake which, if not Srauduleat or intended to overreach, the court caght not to camel, if i? can be dons without injustice to the other party. Courts do nes exigt for the sake of discipline, but for the sake of deciding matters in controversy and { do not regard such amendment as a matter of fivour or grace... Tt neems to me that as soon as it appears thet the way in which a party has framod his case will not fer to a decision of the seel maiter in controversy, it iy much a matter of right on his part to have it corrected, if it can be done Without injustice, as anything «tac in the case in a matter of right.” Much the aame thing had been said by Bramwell LJ. in tho entlier esse of Tidesloy v. Harner. ANTS) 30 Ch. D. 393 at 396: “My practice has always been to give leave to amend unless 7 have been Satisfied that the party applying was acting mala fide or that, by his blender he had done some injury to his opponentwhich could not be compensated for by costs or otherwise.” Counsel for the respondents stated quite frankly ihat he was not suggesting mela fides on the part of counsol for the applicant. It is my convidered opinion that the several objections raised by the respondents are not matters of injustice but could be properiy considered to be matters of defence. In my judgement, the amendments sought are necessary for the purpose of determining the real question of cintioversy between the parties and also having regard to the principle, interest reipublicer ut sit nix Jitivm. ‘They car clearly be made without injustice, the other side can be given leave to amend their defence, if they 80 desire, and the respondents can be compensated by conta. : T would accordingly make the following orders:

1. That leave be granted to the Applicant to amend the writ of summons herein dated 22nd June, 1985, in the manner shown underlined red in the copy of hc writ of summons Zi exhibited to the affidavit in support.

2. That the amended writ be detivered and filed within 3 days of the date of this ordez.

3. That leave be granted to the respondents to deliver and file an amended defence, if they so desire, within 3 days of the service un them of ii: amended writ.

4. That the costs of and occassioned by the amendynent be the respondents’ in any event. nt emnemenenmens HO) MR JUSTICE G GELAGA KING JA (US = SS » Y an HON MR JUSTICE M. O ADOPHY, J.A. ie at a HON MR JUSTICE A. B. TIMBO J.A.