IN THE COURT OF APPEAL OF SIERRA LEONE

BETWEEN: INTERNATIONAL COMMITTEE OF THE RED (CROSS                           APPELLANT

AND

MRS. NAGET TURAY                                                          RESPONDENT/PLAINTIFF

Mr. Bertban Macauley Jr. for the          Appellant

Mr. E. Shares Moses for the                 Respondent

Rulling delivered on:...26.4.00...

TOLLA THOMPSON J.A.

This is an appeal against the ruling of Rashid J delivered on the 26th November 1999.

The grounds of appeal are as follows:

1. That the learned trial judge, in adjudicating upon the defendant's application for leave to amend its defence, erred in failing to apply the appropriate principle as to whether the' proposed amendment was necessary for determining the real issues in controversy between the plaintiff and the defendant thereby wrongly exercising his discretion and eriving at an erroneous decision.

2. That the learned trial judge, in adjudicating upon the defendant's application for leave to-amend its defence, misdirected himself when he stated as follows:

"However the court will not readily allow at the trial an amendment the necessity for which was abundantly apparent months ago and then not asked for"

3. The learned trial judge in adjudicating upon the defendants application for leave to amend its defence, misdirected himself when he held as follows:

"It seems incredible to me that after it had become obvious to counsel in July, 1999 he would only file his motion for amendment only in October 1999"

In that there was no evidence before his lordship that counsel for the defendant/applicant became aware of the need for an amendment in July 1999 thereby wrongly exercising his discretion.

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4. The learned trial judge in holding as follows:

"It seems incredible to me that after it had become obvious to counsel in July 1999 he would only file his motion for amendment only in October 1999"

Failed to take into consideration firstly that the High Court was on vacation as from the 15th July 1999 until 15th September 1999 and secondly that no credible evidence had been adduced before his lordship that the plaintiff/respondent would be prejudiced by the granting of such an application and or would thereby suffer an injustice which could not be compensated by cost thereby wrongly exercising his discretion.

From these grounds it is clear to me that the appeal is brought on two main points:

(a) Tardiness of the application to amend (grounds 2)

(b) Wrong excercise of discretion (ground 1,2 and 4)

Mr. Macauley in arguing the grounds of appeal submitted in sum that the guiding principle to be applied to the application for leave to amend pleading is to be found in the words of 0.24 r 1 of the High Court Rules for the determination of the real issue in controversy without injustice to the other side. He also refers to 0.28 r 1 of the Annual Practice and cites the case of Mojihola Bat Adams v Sama Sesay. mis Appl. 2/95. Continuing he said that the amendment is to give particulars of frustration pleaded in the defence. He refers the. court to Bullen and Leake precedent No. 756

Referring to the affidavit in support of the application, he submitted that nowhere is it stated that he interviewed Solomon Vandi in July 1999. It could have been anytime after the 15th July 1999.

Finally he submitted that no credible evidence was put forward that the respondent will suffer injustice by granting the application which would not be compensated by way of cost.

Mr. Shears-Moses in reply submitted that it is trite law that the amendment at a later stage should be granted only on exceptional circumstances. He refers to Halesbury's laws of England 3 Edition Volume 30 Par 72 P. 35. ;

Paragraph 3 of the affidavit does not show special circumstances why the amendment should be granted..

He submitted further that the trial judge looked at both affidavit (1) Macauley (2) Naget Turay and therefore it cannot be correct to say that the learned trial judge misdirected himself when he said it had been obvious to counsel to make an application in July and they are only making it in October.

He knew .all along that they should have taken further particulars of frustration.

Finally he submitted that the learned trial judge exercised his discretion rightly in refusing the application.

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In dealing with this appeal I think it is pertinent for me to refer to the relevant portion of the learned trial judge's ruling:                                                 .                                 

'The general rule is that leave is sometimes given to amend at the hearing. However the . court will not readily allow at the trial an amendment the necessity for which was abundantly apparent months ago and then not asked for. In the instant case the said Solomon Vandi arrived at the office 15th July 1999. The affidavit was sworn to on the 24ih October 1999, which is three months after arrival of the said Solomon Vandi. It seems incredible to me that after it had become obvious to counsel in July 1999 he would only file his motion for amendment only in October"

It seems to me that the main reason for refusing the application for leave to amend is the tardiness of the application. I agree with Mr. Berthan Macauley that the judge refusing the application relied on the case of Higgrayes v Case 28 Ch page 361.

Q: 24 r 1 states:

"The court may at any stage of the proceedings, allow either party to enter or amend his endorsement or pleadings in such a manner and on such terms as may be just and all such amendment shall be made as may be made as necessary for the purpose of determing the real questions in controversy between the parties. "

It is trite law that leave to amend pleadings will be granted under o.24 r 1 to enable the other party to present his case, on the payment of cost, provided there has not been any undue delay and the amendment will not prejudice the right of the other party. See Odgers Principles of pleadings and Practice 19th edition. What then is an undue delay? In my view what amounts to an undue delay will depend on the circumstances of the particular case.

In the case of J,C Samuels v Northern Assurance company Ltd, 2 SLLR 1962 P 139. The plaintiff sued the defendant company for the return of certain motor parts or their value. After both plaintiff and defendant had closed their case, plaintiff asked for leave to amend his complaint. The judge ruled that ft was too late to grant an amendment and gave judgment for the defendant. The plaintiff appealed. On appeal the court of appeal held allowing the appeal that the trial judge should have allowed the plaintiff to amend his complaint for the purpose of determing the real question in controversy between the parties since such an amendment would not have resulted in injustice to the defendant.

In this appeal the original defence pleaded is one of frustration .Would the propose amendment prejudice or work in justice to the plaintiff case? I do not think so. In my view the propose amendments are additional to the particulars of frustration already pleaded. • It is neither fraudulent nor intended to over-reach. It is also not an introduction of a new defence to the action.

Was it too late? On perusal of the affidavit of Berthan Macauley Jr. I do not think so.

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The question in controversy here is whether the agreement between the parties in which the respondent let her vehicle on hire to the appellant has become frustrated by reason of the rebel/AFRC invasion of Makeni bringing the operation of the appellant to a halt.

In my judgment the amendment sought by the defendant would help to determine the above question in controversy. I do no consider it too late to bring up such an amendment.

In the result I would allow the appeal and set aside the ruling of the learned trial judge dated 26th November 1999.

The defendant is granted leave to amend his defence. upon payment of xxxxxxx

Which it xxxx of Le 2,00,000.