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RULING
TWUMASI, J.A:
In this appeal I intend
to refer to the respondent as the plaintiff and the
appellant as the defendant as they represented
themselves at the trial High Court, Tema. The
indorsement on the writ of summons issued on behalf of
the plaintiff was couched in the following terms:—
(1) General and
special damages for breach of duty of care resulting in
nervous shock and stroke.
(2) Interest on amount
due to the plaintiff after calculating special damages
at the current bank rate from November 1991 to date of
payment.
When it is read out of
context, that is to say, in dissociation with the
statement of claim, the infelicity of the form in which
the plaint was couched would inescapably lead any
student of the plaint to conclude that it was in real
sense an action in negligence and that what the
plaintiff ought to prove to succeed has been indorsed on
the writ rather than in the statement of claim. But, lo
and behold, the indorsement is deceptive because the
material facts pleaded in the statement of claim show
clearly that what appeared on the indorsement as an
action in negligence was in fact an action for trespass
to the person, that is to say, an action for damages for
unlawful arrest and detention. The pleadings are as
follows:—
“(1) The plaintiff is
a fish-monger and lives at Tema.
(2) The defendants are
bankers registered under the relevant laws of Ghana and
have their head office in Accra.
(3) Sometime in or
about August 1991, the defendants wilfully and
intentionally brought two soldiers armed with AK 47
raffles to the plaintiff’s work place at Tema Fishing
harbour and wrongfully caused the plaintiff’s arrest on
direction of defendants at gun point and the plaintiff
was detained by the said armed soldiers.
(4) The plaintiff
avers that the defendants’ said act terrified her and
she was injured by the shock she received.
(5) By the matters
aforesaid, the defendants broke their duty of care they
owed to the plaintiff who suffered loss and damage.
The plaintiff then
pleaded particulars of her damage and loss. In their
statement of defence, the defendants denied the
averments made by the plaintiff. They pleaded in
paragraph 3 of their statement of defence that sometime
in July, 1990, the PNDC directed them to submit to the
PNDC Laison Office a list of all persons who were
indebted to the defendants’ bank. They averred that
they compiled the list which included the plaintiff and
submitted same to the Laison Officer. They stoutly
denied the plaintiff’s accusation that they caused or
directed the two armed soldiers to enter the workplace
of the plaintiff, let alone causing any harm or threat
of harm or shock or injury to her. In a reply filed on
behalf of the plaintiff, the averment that the plaintiff
owed the defendants any debt was denied by paragraph 4
of the said reply. The issues that arose from the
pleadings were then set down for trial in a summons for
directions. The plaintiff embodied in a paragraph 4 of
the summons for directions the following:—
“(4) The defendants
within 14 days or such period as this Honourable Court
shall allow serve on the plaintiff the following
documents mentioned in the statement of defence and file
an affidavit verifying them”.
Then the documents
required were specified and at the hearing of the
summons for directions Counsel for the plaintiff applied
to the court for an order directed at the defendants to
comply with the plaintiff’s request for documents and
the learned trial judge made the order accordingly but
gave the defendants 21 days within which to comply. On
the 5th June 1998 the defendants filed a list of
customers indebted to the defendants’ bank and other
documents and explained the reasons for their inability
to obtain others. The order of the court had directed
the production of a document which mandated them to send
soldiers to the plaintiff’s work place, an allegation
which had been denied by the defendants. The learned
trial judge purporting to act under the provisions of
Order 31 of the High Court (Civil Procedure Rules, 1954
(LN 140 A) entered judgment against the defendants after
striking out the pleadings of the defendants that the
defendants had been guilty of non-compliance with rule 7
of Order 31. She awarded the plaintiff damages of 451,
626, 666.65 as special damages for expenses made by the
plaintiff on medication of the bodily injury and nervous
shock, ¢100 million general damages and ¢12 million
costs. This was done after the learned judge had put
the plaintiff into the witness stand to give evidence of
her claim as indorsed on the writ. No opportunity was
given to the defendants to make their case. Clearly this
is a typical instance of what one may call a travesty of
justice. The learned trial judge acted on wrong
procedure and this occasioned a substantial miscarriage
of justice. A person cannot be compelled to produce a
document whose possession he denies. In my view Orders
31 & 32 of the rules of procedure are designed to narrow
issues between the parties before actual trial. They are
not designed to shut the mouth of litigants from the
seat of judgment. The learned trial judge misconstrued
the rules and committed grave error.
Furthermore a close
reading of Order 31 rule 9 requires the trial judge to
give the party ordered to produce a document or other
evidence a second chance to comply and it is only when
he fails to comply that the court has power to commit
the party for attachment and where appropriate strike
out his pleadings. This procedure was completely
ignored by the learned trial judge thus occasioning a
substantial miscarriage of justice.
The trial was most
unsatisfactory and the judgment is hereby declared null
and void. The appeal is allowed. But in view of the
serious questions raised on the pleadings it would
equally be unjust for the action to be suppressed. For
this reason I would remit the case back to the court
below with a directive that it be tried on the pleadings
and the issues raised.
P. K. TWUMASI
JUSTICE OF APPEAL
OMARI-SASU, J.A:
I agree.
K. OMARI-SUSU
JUSTICE OF APPEAL
ANSAH, J.A.:
I also agree.
J. ANSAH
JUSTICE OF APPEAL
COUNSEL: |
