The court emphasized that amendments to the Notice of Appeal are permissible to ensure procedural propriety and justice, especially when no prejudice to the opposing party is demonstrated.

Jamhirah Ali J:

Introduction

[1] Enclosure 42 is the Appellant/Plaintiff's application to amend the Notice of Appeal dated 30 May 2023. The application specifically aimed to clarify the scope of the original appeal and was opposed by the Third Respondent/Defendant.

[2] For ease of reference, the parties shall be referred to as they were in the Court below.

[3] The proposed amendments were set out in Exhibit MS-3 of encl 43. Through the proposed amendment, the Plaintiff sought to expressly state that the appeal on liability encompassed an appeal against the learned Sessions Court Judge's (SCJ) decision in allowing the Third Defendant's counterclaim. Additionally, the Plaintiff sought to include an appeal on the issue of quantum, which, according to the Plaintiff, had been inadvertently omitted from the original Notice of Appeal.

The Plaintiff's Grounds Supporting The Application

[4] The Plaintiff advanced several grounds in support of the application. First, it was submitted that the issue concerning the adequacy of the Notice of Appeal was raised for the first time during the hearing of the appeal on 26 August 2024. Second, the Plaintiff explained that the omission of the appeal on quantum was due to an error in preparing the original Notice of Appeal. Third, following the appointment of Mr Krishna Dallumah as lead counsel, it was his view that an amendment was necessary to ensure that the Notice of Appeal was both procedurally proper and legally competent.

[5] It was further submitted that the Plaintiff had always intended to pursue an appeal on the issue of quantum. According to the Plaintiff, this intention was evident from the contents of both the Memorandum of Appeal and the Amended Memorandum of Appeal, which were exhibited at MS-2 of encl 43.

[6] In addition, the Plaintiff had already advanced arguments on the issue of quantum in the written submission filed as encl 27. The Plaintiff also contended that no prejudice would be caused to the Third Defendant, as the Third Defendant had likewise filed an appeal on the issue of quantum.

The Third Defendant's Grounds Of Objection

[7] In opposing the application, the Third Defendant raised several objections, on legal and equitable grounds. It was first contended that this Court lacked the jurisdiction to grant the relief sought by the Plaintiff.

[8] The Third Defendant further objected on the grounds of delay. It was pointed out that there had been a lapse of 17 months since the filing of the original Notice of Appeal, and that no reasonable explanation had been provided for this prolonged delay. According to the Third Defendant, the timing of the application suggested it was an afterthought, raised only when the adequacy of the Notice of Appeal was questioned during the hearing.

[9] Allegations of bad faith were also raised. The Third Defendant contended that the application was filed mala fide, and that the omission in the original Notice of Appeal was not merely inadvertent, but reflective of a negligent and lackadaisical attitude by the Plaintiff's solicitors.

[10] In totality, the Third Defendant submitted that the application constituted an abuse of the Court's process. It was argued that allowing such an application at this stage would not only disrupt the orderly conduct of the proceedings but would also result in unnecessary delays and a waste of judicial resources.

Findings Of The Court

[11] Having carefully considered the cause papers and the parties' submissions, the relevant rules, and the authorities cited, this Court is of the view that the application to amend the Notice of Appeal is properly brought under O 55 r 9 of the Rules of Court 2012, which permits the Court to allow amendments to the Memorandum of Appeal, notice of cross-appeal, or other parts of the record of appeal on such terms as it thinks fit. Although the Rules of Court 2012 do not contain a specific provision dealing exclusively with the amendment of a Notice of Appeal, this gap is addressed through th