Wright, Neville v National Commercial Bank Jamaica Ltd and Others

• Jurisdiction: Jamaica
• Judge: CAMPBELL, J
• Judgment Date: 05 February 2002
• Judgment citation (vLex): [2002] 2 JJC 0501
• Docket Number: SUIT NO. Wl 26/1996
• Court: Supreme Court (Jamaica)
• Date: 05 February 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. Wl 26/1996

BETWEEN

NEVILLE WRIGHT

PLAINTIFF

AND

NATIONAL COMMERCIAL BANK JAMAICA LTD.

1 ^ST DEFENDANT

AND

DANIEL MELVILLE

2 ^ND DEFENDANT

AND

ARNOLD BERTRAM

3 ^RD DEFENDANT

CIVIL PROCEDURE - Summons - Striking out of action as disclosing no reasonable cause of action - Judicature (Civil Procedure Code) Law, s. 191

CAMPBELL, J

1 On the 31 ^st May, 1991, Mr. Neville Wright, issued a Writ of Summons and Statement of Claim, in which he sought certain declaratory orders and consequential relief against the National Commercial Bank (NCB).

2 On the 18 ^th January, 2001, the plaintiff filed a Summons for leave to Amend Writ of Summons and Statement of Claim by adding Second and Third Defendants, Arnold Bertram and Danny Melville respectively. Reckord, J, granted leave to Amend the Summons, on the 18th June, 2001. Subsequently, Conditional Appearance was entered on behalf of the Second and Third Defendants, "without prejudice" to an application being made to strike out the plaintiff's claim against the Second and Third Defendants.

3 On the 8 ^th July, 2001, the Second and Third Defendants applied by Summons for leave for the action against them to be dismissed or struck out as disclosing no reasonable cause of action, and as being frivolous and vexatious, and an abuse of the process of the Court.

4 On the hearing of this Summons a document entitled An Amended Writ of Summons and Statement of Claim, was presented by the plaintiff. This document was filed on the 13 ^th July, 2001. The Defendants attorney objected to the Amendment on the ground that leave was necessary for such an Amendment and there was no evidence of such an order being granted. The Amendment was allowed, in order to facilitate the determination of the real question in controversy before the Court.

5 The note to the annual practice of Supreme Court (U.K.), O. 20 r.5 states, at page 454:

"It is the guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings (see Jenkins, C.J. in G.L. Baker Ltd. v. Medway Building & Supplies [1958] 1 W.L.R. Page 1231 )".

6 The Court has an unquestioned discretion to allow a party to file an amended pleading in the absence of leave being granted.

7 In Overton C. Hutchnison vs. Ellis, Victor Shepherd (Executor of the Estate of Jula Burgher, deceased) 1991 28 J.L.R at page 194, Morgan, J.A. said:

"Section 191 of the Code and the inherent jurisdiction of the Court on which the appellant relies, in my view does not fetter a Judge in granting liberty to a party to file an amended pleading even where no application for leave to amend is before the Court. The principle in the power to amend is primarily to see that the controversy between the parties comes to an end and it would be wholly unfair to drive away a party from the judgment seat if there is an arguable case or if an amendment would enable the party to maintain the action ".

8 Mr. Robinson, for the defendants in arguing for the dismissal of the Plaintiffs action in respect of Second and Third Defendant submitted:

• (i) that the Plaintiff's case concerned the guarantees and mortgages that had executed in favour of N.C.B in order to secure loans granted to the Plaintiff and to Electronic Amusement Company Ltd (the Company) in which the Plaintiff held 30% of the shares along with the Second and Third Defendants.

• (ii) that there was no basis or foundation alleged in the Statement of Claim to grant the relief sought...