( COURT OF APPEAL)·

HASSAN MUSA vs. PHOENIX INSURANCE CO.

(AC-Revision-68-58)

 Raleigh vs. Goschen character.

Decsion of Abu Ghzala J. affirmed.

Principles

·  Practice and Procedure-Claim-Arabirators’ award-Amendent

 Where a Plaintiff bases his claim for a liquidated sum of money on an arbitrators’ award, he will not be allowed (after the issues have been framed) to amend his claim so as to change it into one for an unliquidated sum based on the contractual relationship, for the amendment would change the action into one of substantially different character.

Revision:

1st October 1958. Babikir Awadalla J. : - In my view this application should be summarily dismissed. It is an application against the decision of His Honour Abu Ghzala J. date 5th April 1958 refusing an application   for amendment of claim. The claim was made on behalf of a certain Dr. H. Musa for £S. 1.250. being compensation for accidental damage caused to his car which was at the time insured by the Defendants. The case was started by Advocate Kheir and he based his claim on an arbitrator’s award. After framing of the issues, Advocate Kheir withdrew and Advocate Albert took over. He immediately applied to amend the claim by withdrawing the allegation as to arbitration. Abu Ghzala J. dismissed the applicationas out of time and improper.

I entirely agree with him. Advocate Albert simply wants to “lick up” the whole basis of the claim and start afresh after issues had already been start afresh. In Raleigh vs. Goschen (1808) 1 Ch. 73 it was held that where an amendment would change the action into one of substantially diffferent character, the only remedy is a fresh action. There is a great difference between a liquidated claim base on an arbitrator’s award (and subject to special rules under the Civil Justice Oridnance and anunliquidated claim based on the contractual relationship simplicter.

1st October 1958. M.A Abu Rannat C.J :- I agree

(Application dismissed)