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MARGARET INSAIDOO. J (MRS)
RULING ON AN APPLICATION FOR
LEAVE TO FILE LATE REPLY
This is a motion on notice by the
Plaintiff/Applicant asking leave
of the court to file a late reply.
In response, the
Defendant/Respondent objected to
the above prayer and further
raised a preliminary point of
objection based on law on the
following grounds:
That, the above motion in question
is an abuse of the court process;
because the pleadings in the
matter before the court had been
closed and also by order 58
( 4);
'1t is when a reply has been filed
or time for filing the reply has
elapsed that administrator of the
commercial court within three days
assigns the case to one of the
commercial court Judges to conduct
the pretrial settlement
conference.
II
Therefore,
if
counsel had failed to take
advantage of filing a reply and
had allowed himself and his client
to go through the pre-trial
settlement conference, then it is
too late in the day to bring an
application to file a late reply
and thus
it
will also sin against the rules of
the court.
Counsel further contended that it
is at the pretrial stage that
issues for trials are set down
based on the pleadings filed. If
so, then what happens to the
issues that had already been set
down for trial? In the view of
counsel, it will be a case of
going forwards and backwards and
that would lead to delay. To
buttress his point counsel cited
order 1 Rule 2 of C1.
47.
It is also the contention of
counsel that the objective for
which this court was set up would
be defeated if the plaintiff is
allowed to file his reply. Finally
counsel for the defendant drew the
court's attention to the fact that
plaintiff had not stated the rule
he was relying on. It was the
opinion of counsel that, maybe the
Plaintiff's counsel intended to
seek the inherent jurisdiction of
the court.
In response to defence counsel's
submission, counsel for the
Plaintiff/Applicant admitted as a
fact that their motion did not
refer to any rule. He referred the
court to order 65 Rule 16 where
the court is clothed with
jurisdiction to grant leave to
filing processes out of time.
Counsel further referred to the
order 80 rule 4· and order 81
where the law allowed the court to
grant a party leave to file any
relevant process out of time.
Pg2
Again, it was the case of counsel
for Defence that trial had not yet
commenced; thus the time was
opportune to put everything in
order before the trial begun.
Counsel for the Plaintiff
contended that respondent counsel
arguments was based on
technicalities which the law
frowned upon as its implementation
thwarts the cause of justice.
Finally, according to plaintiff's
counsel human as we are, we are
bound to be fallible and it is as
a result of this failing that the
court had made relevant provisions
in the rules for parties to be
given an opportunity to correct
mistakes. Thus, the applicant's
argument of multiplicity of
proceedings is neither here nor
there.
Thus counsel for the Plaintiff
said that based upon his argument,
his prayer ought to be granted.
I have considered all the
authorities cited by both counsel.
Although it is being brought
rather late in the day, I would
grant the application for the
following reasons.
a)
To avoid multiplicity of suits
b)
The fact that the trial is yet to
commence.
The provisions in CI 47, Order 16
rule 5, Order 80 and 81 gives the
court the authority to grant leave
to file the processes out of time.
Also, it will serve the cause of
justice by ensuring that all
matters in contention are resolved
once and for all.
In the circumstances therefore the
applications is granted
accordingly. Costs of two million
cedis to the respondent.
CASES CITED
1)
Bobo vs. Anthony [1931] 1 WACA 169
2)
Adae vs. Ntim [1963] GLR 349
3)
In re Coles vs. Ravensheer [1907]
llCB
4)
GPHA vs. E.T.S KaborejIsoufou
[1992-93] GBR
5)
Okofo Estates Ltd vs. Modern.
Costs to be paid before the next
step.
(SGD)JUSTICE MARGARET INSAIDOO
COUNSEL: PLAINTIFF PRESENT
COUNSEL FOR THE PLAINTIFF - ABSENT
JAMES AGALGA FOR THE DEFENDANTS -
PRESENT
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