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JUDGMENT
ASIAMAH, JA:
This is an
interlocutory appeal brought by the Plaintiff/Appellant
against the ruling of the trial High Court to the effect
that this is not a proper case where the
Plaintiff/Appellant Civil Motion can secure summary
judgment under Sections 1 and 2 of Order 14 of the High
Court (Civil Procedure) Rules, 1954 (LN 140A) as amended
by LI 1129.
To obtain judgment
under this Order the applicant is required as of jural
necessity and prerequisite to state the following facts
in his summons:—
(1) The reliefs sought
by him;
(2) An affidavit
verifying the facts on which his claim or part of it is
based; and that
(3) In his relief the
default has no defence to his claim or part thereof.
The appellant had no
difficulty in stating the relief under (1) & (3) above.
He is seeking the recovery of US $10,000 being as he
stated in both the indorsement to his writ and summons
for summary judgment "long outstanding overseas per diem
allowance due from Defendant to plaintiff during his
employment with the Defendant", and that the defendant
has no defence to the action.
It is not enough to
state that a party has no defence to an action. The
applicant must go a little further to provide more facts
why in his belief he thinks there is no defence to the
action. It is precisely for this purpose that the law
requires an applicant to state in his supporting
affidavit "facts on which the relevant claim or part of
a claim is based", see Order 14 Rule 2(1). I believe the
eventual purpose of Order 14 Rule 2(1) is, inter alia,
to let the defendant and the court know when the right
of action accrued and whether or not the law on
limitation of action in the matters has not been
breached. By failing to state when the appellant ceased
to be in the respondent's employ, your Lordships are
being, as it were, pushed into a speculative position to
conjecture. The dispensation of justice in a court of
law does not concern itself with speculation. An issue
emerges here which can only be resolved by evidence at a
trial.
I hasten to mention
that the appellant had in December, 1997 instituted this
same action against the Respondent herein claiming the
same sum of money in suit No. C.753/97. Summons for
directions was taken by the trial High Court on 29"'
January, 1998. And subsequent to this the plaintiff on
12th October, 1999 filed a "notice of withdrawal" and
stated in the said notice of withdrawal thus:—
"... the plaintiff
herein hereby wholly withdraws his claim in the above
mentioned case".
Two of the issues out
of a total of 19 issues set down for hearing in the suit
numbered, C.753/97 aforementioned were these:—
"(a) Whether or not the
plaintiff became entitled to payment of overseas per
diem allowance" and
(r.) whether or not
plaintiff's claim is statute-barred."
Once a Summons for
directions had been taken the stage is set for trial. At
this state and thereafter a plaintiff can withdraw his
case by a consensual agreement in a written form between
him and the defendant jointly signed by the parties in
the suit.
No one party can
terminate the trial by unilaterally filing a notice of
withdrawal. The supportive authority is contained in
Order 26(2) of the High Court (Civil Procedure) Rules,
1954 (LN 140A). It reads:
"2. When a cause has
been entered for trial, it may be withdrawn by either
plaintiff or defendant, upon producing to the proper
officer consent in writing, signed by the parties".
The appellant's
purported withdrawal of suit No. C.757/97 who was the
plaintiff in that suit claiming the same relief as he is
doing in the present action was a material infraction of
Order 26(2).
There was, in
consequence of the appellant's infraction of the rules
of procedural law, no withdrawal at all and that
anterial suit aforementioned was deemed to be pending at
the time the appellant issued the writ in the current
action. What then is the legal status of the present
action? It is an example of a situation where a
purported legal process taken by a litigant amounts to
an abuse of the process of the Court.
The appellant's appeal
is dismissed for the reasons stated herein.
S. K. ASIAMAH
JUSTICE OF APPEAL
OWUSU-ANSAH, JA:
I agree.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
ANINAKWAH, JA:
I also agree.
R. T. ANINAKWAH
JUSTICE OF APPEAL
COUNSEL
APPELLANT IN PERSON |
