1. This Cause has had a chequered history.
2. The Claimant sued the Respondent in 2013 alleging unfair termination of employment and breach of contract. The Claimant prayed to be awarded salary for October 2008, severance pay and salary in lieu of notice.
3. On 11 December 2023, the Court directed that the Cause be heard afresh and set the hearing for 1 February 2024.
4. The Claimant then filed a Motion dated 14 September 2023 seeking orders:
(a) …
(b) THAT the Honourable Court be pleased to grant leave to the Claimant to amend his Memorandum of Claim.
(c) THAT the draft amended Memorandum of Claim attached to the application be deemed as duly filed and served upon payment of requisite court fees.
(d) THAT the costs of the application be in the cause.
5. The primary grounds in support of the application were that there was an error apparent on the face of the Memorandum of Claim in that a cause of action for unfair termination was not pleaded; that it was necessary to amend the Memorandum of Claim to bring out the real issue in dispute and that the failure to plead an action for unfair termination was a mistake of the advocate which ought not to be visited upon the Claimant.
6. In the draft amended Memorandum of Claim, the Claimant introduced a new relief:
(a) A declaration that the Claimant’s termination was unfair, wrongful and illegal.
7. The Court directed the Claimant to file and serve the application together with submissions. The Court also directed that the Respondent files and serves a response to the Motion, together with submissions.
8. The Claimant filed his submissions on 19 December 2023.
9. The Respondent’s submissions were not on record by the agreed date.
10. The Court has considered the Motion, affidavits and submissions on record.
11. This Cause has been in the court system for about 10 years. The Claimant pleaded a cause of action for unfair termination of employment at paragraphs 5 and 8 thus:
5. Pursuant to the said agreement, the Claimant served the Respondent until 7th October 2008 when his services were terminated by summary dismissal and the Respondent failed/neglected/and or ignored to pay the Claimant’s salary arrears for the month of October 2008 and/or any terminal benefits whatsoever.
8. The Claimant further avers that the Respondent terminated his contract in blatant disregard to the rules of natural justice.
12. It is clear from the initial pleading that the assertion by the Claimant that there was a mistake on the part of the advocate of failing to advance an action for unfair termination of employment is not correct.
13. What the Claimant failed to plead was one of the primary remedies where unfair termination of employment is found: compensation.
14. In the amended draft Memorandum of Claim, the Claimant had not sought to introduce this head of relief.
15. A Court has discretion to grant leave to amend a pleading. The discretion is normally exercised liberally especially where the hearing has not commenced.
16. The Claimant has also had about 10 years to move Court but he was only prompted by the decision of the Court to set a hearing date with a caution that an adjournment would not be entertained.
17. Further, in the circumstances of this Cause, the instant Motion seeking leave to amend will not alter the substance of the pleadings nor advance the cause of justice as that which is sought to be allowed does not change the substance of the pleadings and more so the remedies.
Conclusion and Orders
18. For the above reasons, the Court declines to exercise its discretion in favour of the Claimant. The Motion is dismissed.
19. The hearing to proceed as earlier scheduled.
20. Costs in the cause.
2. The Claimant sued the Respondent in 2013 alleging unfair termination of employment and breach of contract. The Claimant prayed to be awarded salary for October 2008, severance pay and salary in lieu of notice.
3. On 11 December 2023, the Court directed that the Cause be heard afresh and set the hearing for 1 February 2024.
4. The Claimant then filed a Motion dated 14 September 2023 seeking orders:
(a) …
(b) THAT the Honourable Court be pleased to grant leave to the Claimant to amend his Memorandum of Claim.
(c) THAT the draft amended Memorandum of Claim attached to the application be deemed as duly filed and served upon payment of requisite court fees.
(d) THAT the costs of the application be in the cause.
5. The primary grounds in support of the application were that there was an error apparent on the face of the Memorandum of Claim in that a cause of action for unfair termination was not pleaded; that it was necessary to amend the Memorandum of Claim to bring out the real issue in dispute and that the failure to plead an action for unfair termination was a mistake of the advocate which ought not to be visited upon the Claimant.
6. In the draft amended Memorandum of Claim, the Claimant introduced a new relief:
(a) A declaration that the Claimant’s termination was unfair, wrongful and illegal.
7. The Court directed the Claimant to file and serve the application together with submissions. The Court also directed that the Respondent files and serves a response to the Motion, together with submissions.
8. The Claimant filed his submissions on 19 December 2023.
9. The Respondent’s submissions were not on record by the agreed date.
10. The Court has considered the Motion, affidavits and submissions on record.
11. This Cause has been in the court system for about 10 years. The Claimant pleaded a cause of action for unfair termination of employment at paragraphs 5 and 8 thus:
5. Pursuant to the said agreement, the Claimant served the Respondent until 7th October 2008 when his services were terminated by summary dismissal and the Respondent failed/neglected/and or ignored to pay the Claimant’s salary arrears for the month of October 2008 and/or any terminal benefits whatsoever.
8. The Claimant further avers that the Respondent terminated his contract in blatant disregard to the rules of natural justice.
12. It is clear from the initial pleading that the assertion by the Claimant that there was a mistake on the part of the advocate of failing to advance an action for unfair termination of employment is not correct.
13. What the Claimant failed to plead was one of the primary remedies where unfair termination of employment is found: compensation.
14. In the amended draft Memorandum of Claim, the Claimant had not sought to introduce this head of relief.
15. A Court has discretion to grant leave to amend a pleading. The discretion is normally exercised liberally especially where the hearing has not commenced.
16. The Claimant has also had about 10 years to move Court but he was only prompted by the decision of the Court to set a hearing date with a caution that an adjournment would not be entertained.
17. Further, in the circumstances of this Cause, the instant Motion seeking leave to amend will not alter the substance of the pleadings nor advance the cause of justice as that which is sought to be allowed does not change the substance of the pleadings and more so the remedies.
Conclusion and Orders
18. For the above reasons, the Court declines to exercise its discretion in favour of the Claimant. The Motion is dismissed.
19. The hearing to proceed as earlier scheduled.
20. Costs in the cause.