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Practice and procedure -
Striking out pleadings
- Summarily disposing of actions
– Fraud - Preliminary hearing of
an action - Conditional
appearance - No reasonable cause
of action - Abuse of the
processes of the court –
Offending pleading - Whether or
not the application disclosed
no
reasonable cause of action -
Whether or not the application
was frivolous and vexatious
HEADNOTES
The plaintiff issued the writ
of summons herein to set aside a
prior judgment of the High Court
on grounds of fraud,
misrepresentation and breach of
the right of hearing. After
service of the processes
initiating the action on the
defendant, he entered appearance
conditionally. Moments after
filing the said appearance, the
defendant filed a statement of
defence and an application to
strike out the statement of
claim and dismiss the action
The grounds on which the
defendant’s said
application was based were said
to be “for disclosing no
reasonable cause of action,
frivolous
and vexatious; and for being
an abuse
of the processes of the court.”
After hearing the parties on the
objection, the learned trial
judge dismissed the application.
An appeal to the Court of Appeal
was allowed resulting in the
plaintiff appealing to us.
HELD
We
are of the opinion that had the
learned justices of the Court of
Appeal adverted their minds to
the attributes which the rules
place on a party who applies to
have pleadings struck out and
the action dismissed on the
ground that it discloses no
reasonable cause of action, they
would in all probability have
reached a decision contrary to
that which is the subject matter
of the appeal herein. Having
preferred the decision of the
learned trial judge to that of
the learned justices of the
Court of Appeal, the corollary
is that decision of the learned
justices to the contrary is in
error. Accordingly, we allow the
appeal of the plaintiff from the
decision of the Court Appeal and
restore the decision of the
learned trial judge dismissing
the application to have the
action herein dismissed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules 2004, CI 47
CASES REFERRED TO IN JUDGMENT
Ghana Muslim Representative
Council v Salifu [1975] 2 GLR,
246
Jonah v Kulendi & Kulendi
[2013-2014] 1 SCGLR 272
Wenlock v Maloney [1965] 2 All
ER 871
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England,
Volume 37 of the Fourth Edition
“Striking out pleadings”
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC
COUNSEL
BEN TAIWO ADEKANLA FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
KWAKU OSEI ASARE FOR THE
DEFENDANT/APPELLANT/ RESPONDENT
WITH HIM ABIGAIL ANTWI
____________________________________________________________________________________
JUDGMENT
____________________________________________________________________________________
GBADEGBE JSC
read the following judgment of
the Court:
The question for our
determination in the exercise of
our ultimate appellate
jurisdiction is whether the
decision of the learned justices
of the intermediate appellate
court which reversed the
decision of the trial court in
the matter herein which turns
upon the
practice and procedure
relating to the summary disposal
of actions under the Rules of
Court was a correct exercise of
their discretion. This is a
point of procedural importance
related to the authority of
courts to
summarily dispose of actions
before them without going
through a full-scale trial. In
our opinion, having regard to
the increasing number of appeals
emanating from decisions
rendered by trial judges and the
intermediate appellate court
which unfortunately reveal a
misunderstanding of the scope of
the rules and the practice
relating to it, we would like to
reiterate the exceptional nature
of the power conferred on courts
to summarily dispose of actions
founded on objections taken to
pleading. Having given anxious
consideration to the issues
raised in the matter herein, we
are of the opinion that the
appeal should be allowed.
Examining the record of appeal
in the matter herein, we think
that it was without precedent
and as we desire not to
encourage it, we straightaway
express our disapproval of what
was an unusual attempt by the
learned justices of the Court of
Appeal to engage in a
preliminary hearing of an action
based on affidavits. Turning
to the parties before us, we
would like for reasons of
convenience in this delivery to
refer to them simply as
plaintiff and defendant.
The action herein was initiated
before the High Court when the
plaintiff issued the writ of
summons herein to set aside a
prior judgment of the High Court
on grounds of fraud,
misrepresentation and breach of
the right of hearing. After
service of the processes
initiating the action on the
defendant, he entered appearance
conditionally. Moments after
filing the said appearance, the
defendant filed a statement of
defence and an application to
strike out the statement of
claim and dismiss the action.
Having
filed a defence to the action
and taken an objection to the
offending pleading by the filing
of the application on which
these proceedings are founded,
the
conditional appearance lost
its efficacy and was dissolved
into an absolute appearance such
that the considerable
submissions urged on us related
hereto is of no moment to the
determination of the matter
herein.
The grounds on which the
defendant’s said
application was based were said
to be “for disclosing
no
reasonable cause of action,
frivolous
and vexatious; and for being
an abuse
of the processes of the court.”
After hearing the parties on the
objection, the learned trial
judge in a ruling contained at
pages 260-265 of the record of
appeal dismissed the
application. An appeal to the
Court of Appeal was allowed
resulting in the plaintiff
appealing to us.
The grounds of appeal filed in
the matter are set out at pages
451 to 453 of the record of
appeal and referred to in the
respective written briefs of the
parties. As the decision of the
learned trial judge was
overturned by the leaned
justices of the Court of Appeal,
our determination of the
question set out above
necessarily means that in our
view the learned trial judge
approached his determination in
accordance with the settled
practice of the Court whiles the
Court of Appeal applied the
wrong principles. Having
answered the question posed for
our determination in the opening
paragraph of this delivery, we
now proceed to provide our
reasons therefor.
In the first place, under the
Rules of Court, a party who
applies to dismiss an action on
the ground that the pleading
discloses no reasonable cause of
action is deemed to admit the
truth of the averments contained
in the statement of claim. See:
Ghana
Muslim Representative Council v
Salifu [1975] 2 GLR, 246.
Although the said decision was
based on order 25r 4 of the old
rules contained in LN 140A, we
are of the opinion that the new
rules expressed in Order 11 rule
18 (1) (a) and that contained in
the repealed legislation are
expressed in substantially the
same words and as such as a rule
of construction, the same
meaning must be given to them as
indeed, has been pronouncements
of our courts on the point. See:
Jonah v
Kulendi & Kulendi [2013-2014] 1
SCGLR 272. So strict is the
rule construed that Order 11
rule 18 (2) expressly precludes
affidavit evidence from being
resorted to in applications made
under sub-rule 1(a).
In our considered opinion, as
sub-rule 1(a) of Order 11 rule
18 precludes controverting the
factual averments contained in
the
offending pleading on which
an objection is based such as
was the case before the trial
court in the action herein, it
is difficult to accept that the
defendant by his application,
the subject matter of the
proceedings herein was enabled
to approbate and reprobate the
truth of the facts contained in
the plaintiff’s statement of
claim. It is for this reason
that we have before now in this
delivery said that it was an
unusual practice for the
applicant to require the court
in one vein to consider his
invitation based on the truth of
the averments contained in the
statement of claim and in
another vein to assert their
untruth. A party who seeks an
action to be dismissed for
disclosing no reasonable cause
of action cannot be engaged in a
traverse and an admission. We
think that such a course of
procedure is clearly unwarranted
as was determined in the case of
Wenlock v
Maloney [1965] 2 All ER 871,
in which it was held that where
the application basically is
made under Order 18 sub-rule
1(a) but grounds are added under
the other sub-rules of Order 18
rule 1, evidence should not be
admitted, the purpose of the
rule being to prevent a trial on
affidavits in order to determine
whether there is a cause of
action. We think that the
effect of the approbation and
reprobation of the truth of the
averments contained in the
statement of claim by the
defendant was to sow seeds of
destruction of his own case that
left the learned trial judge
with no option than to dismiss
the application.
Further, the considerable
length of the application and
exhibits attached thereto
which appear from pages 18 to
256 of the record of appeal
should have put the learned
justices of the Court of Appeal
on the inquiry as its mere
length and the contentious
facts that were deposed to
related to the presumptive
admission by the defendant of
the truth of the averments
contained in the statement of
claim rendered it one that was
not fit to be dealt with under
the summary jurisdiction of the
Court. Also, considering the
fact that the statement of
defence filed to the action
herein was a resolute denial of
the averments contained in the
statement of claim, it is clear
that the application was not
made in good faith as the
essential pre-requisite to an
application being made under
Order 11 rule 18 sub-rule 1 (a)
of CI 47 namely an admission of
the facts contained in the
offending pleading was absent.
It is important to observe that
as applications made under
sub-rule 1 (a) of Order 18 of
the High
Court Rules, CI 47 are
deemed to admit the truth of the
facts set out in the statement
of claim, making the
application also on the grounds
provided in sub-rule 1(b) and
(c) of Order 18 which when
properly made seek to prove the
contrary of the facts contained
in the statement of claim may
be likened to a building being
founded upon a structurally
incompetent foundation that was
bound to crumble. The
application was, to say the
least, unmeritorious and so
procedurally flawed that it
ought to have been dismissed in
limine.
As the defendant’s application
also raised issues concerning
the allegation of, for example
fraud contained in the
plaintiff’s statement of claim,
the proper procedure as was
determined by the learned trial
judge was for the matter to go
to full scale trial. At page 264
of his ruling, the learned trial
judge said:
“In sum I hold that it is the
duty of this court to go into
the merits of the allegation of
fraud via-a-vis the issue
canvassed. in this application
after evidence has been taken
and not to dismiss the
action…….”
The learned trial judge was
right when he refused to yield
to the defendant’s application.
In so doing, he must have taken
into account the caution that
the summary power conferred on
courts both under the Rules and
the inherent jurisdiction of the
Court was never intended to be
exercised in a manner that would
have the effect of driving
parties away from the judgment
seat. Writing on the topic “STRIKING
OUT PLEADINGS”, the learned
authors of
Halsbury’s Laws of England,
Volume 37 of the Fourth Edition
state at page 318, paragraph
430 thus:
“However, the powers are
permissive, not mandatory, and
they confer a jurisdiction which
the court will exercise in the
light of all the circumstances
concerning the offending
pleading. The discretion is
exercised by applying two
fundamental, although
complimentary principles. The
first principle is that the
parties will not lightly “be
driven from the seat of
judgment”, and for this reason
the court will exercise its
discretionary power with the
greatest care and
circumspection, and only in the
clearest cases. The second
principle is that a stay or even
dismissal of proceedings may
“often be required by the very
essence of justice to be done”
so as to prevent parties being
harassed and put to expense by
frivolous, vexatious or hopeless
litigation.”
A careful consideration of the
plaint in the action herein
compels us to the view that it
disclosed a cause of action that
was fit to be investigated. The
mere fact that the claim as
filed before the High Court may
be described as weak or unlikely
to succeed does not authorise it
to be dismissed as the learned
justices of the Court of Appeal
sought to do. Regarding the
allegation of vexation and
frivolity and abuse of the
process, we agree with the
learned trial judge that the
matters on which they were based
were such that having regard to
all the circumstances, a trial
was necessary. In particular,
the questions raised on the
question of estoppel by the
previous proceedings and the
related identity of the
plaintiff are matters that would
have to be interrogated at the
trial of the action.
We are of
the opinion that had the learned
justices of the Court of Appeal
adverted their minds to the
attributes which the rules place
on a party who applies to have
pleadings struck out and the
action dismissed on the ground
that it discloses no reasonable
cause of action, they would in
all probability have reached a
decision contrary to that which
is the subject matter of the
appeal herein.
Having preferred the decision
of the learned trial judge to
that of the learned justices of
the Court of Appeal, the
corollary is that decision of
the learned justices to the
contrary is in error.
Accordingly, we allow the appeal
of the plaintiff from the
decision of the Court Appeal and
restore the decision of the
learned trial judge dismissing
the application to have the
action herein dismissed.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. J.M DOTSE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE
OF THE SUPREME COURT)
A.M.A
DORDZIE (MRS)
(JUSTICE OF THE SUPREME COURT)
PROF. N.A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
BEN TAIWO ADEKANLA FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
KWAKU OSEI ASARE FOR THE
DEFENDANT/APPELLANT/ RESPONDENT
WITH HIM ABIGAIL ANTWI
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