IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN:-

INTERNATIONAL COMMITTEE OF THE RED CROSS - APPELLENTS

AND MRS. NAJET TURAY                             .               - RESPONDENT

CORAM:-

HON.MR. JUSTICE N.D. ALHADI                                       - J.A.

HON. MR. JUSTICE M.E. TOLLA-THOMPSON                - J.A.

HON. MR. JUSTICE F.G. GBOW                                        - J.A.

BERTHAN MACAULEY JR FOR THE DEFENDANT/APPELLANTS E.E.C . SHEARS MOSES FOR THE PLAINTIFF/RESPONDENT

JUDGEMENT DELIVERED THIS 26th DAY OF APRIL 2000

ALHANDI J.A             

The Grounds of this Appeal are firstly that the Learned Trial Judge was wrong in law in failing to apply the appropriate principles as to whether the proposed amendment was necessary for determining the real issue in controversy between the parties before the court, there by exercised his discretion wrongly. That the Learned Trial Judge also misdirected himself when he said: -

"However the court will not readily allow at the trial an amendment the necessity for which was abundantly apparent months ago and not asked for". That he also misdirected himself when he held as follows:-"It seems incredible to me that after it had become obvious to counsel in July 1999 he could only file his motion for amendment only in October, 1999",

in that there was no evidence before the judge that the defen-

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dant/aplicant became aware of the need for an amendment in July, 1999.

The pitt and substance of counsel for the defendant/appli-cant argument and submissions are that the Learned. Trial Judge made time of the essence of an application for leave to amend the pleading of a party. The stipulation in Order 24, Rule 1 of the High Court Rules is that the court 'can at. any stage of the proceeding allow either party to amend his pleadings in such manner and on such terms as may be just, and such amendments. shall be made as may be necessary for the purpose of determing the real question in controversy "betweeen the parties. It is not in dispute that granting an application to amend at the trial or hearing is a matter of discretion for the judge. Such leave will be refused where the other party will be seriously prejudiced by the amendment been sought.

In this ease we have the situation which according to the trial judge in his ruling, referred to the submission of counsel for the plaintiff/respondent in the following terms at Page 30.: "He submitted that the hearing of this matter commenced on the 24/9/99 which is two months after the arrival of the said Solomon Vandy. He submitted that the trial proceeded until 18/10/99 when the plaintiff/respondent closed her case.He went on to say that the affidavit in support was sworn to on the 29/10/99. That is eleven days after the plaintiff closed her case and three months after Solomon Vandy returned to Freetown.

I believe the Learned Trial Judge was not oblivious of the correct principle of law applicable for an amendment Under Order 24 Rule 1 of the High Court Rules. I am of the view that he considered the innrdinate delay of the application to "be a

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factor which ought to be taken into account in considering what way to exercise his discretion. An application of this nature considering the circumstances should be made with the uttermost promptitude especially where the plaintiff/respondent was proceeding with her case and had concluded it eleven days before the  application.

In Egerton v. Jones( 1939) 3 AER 889 at 891 Sir Wilfred Greene M.R. said inter alia "It is quite certain on the one hand that the discretion of the court is not to be fettered by rules.The discretion is given by statutes, and must be exercised according to the circumstances of each particular case. On the other hand it is equally true that when a matter involving discretion comes before a judge, there must be in every case a number of considerations which he ought to have in mind for the purpose of enabling him to exercise his discretion."

I am of the view that the learned Judge took into consideration the period between July 1999 and October 1999 when the application was made to be one of an inordinate delay .

I do not think he has taken into consideration matters,which ought not to take into consideration. I do not therefore feel he was wrong in the exercise of his discretion in refusing the application as he considered the delay in the application to as a material factor to be taken into consideration.

The Appeal is dismissed.

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The defendant/appellant to pay the costs of this appeal

(Sgd) Hon. Mr. Justice N.D. Alahdi-J.

 I agree...................Hon, Mr. Justice F.C. Gbow