|
Practice and
Procedure - Agreement - Contract
– Breach of undertaking
to
construct
-
Action
statute
barred.
- Res judicata
- Order
33, r5,
of
the
High
Court
(Civil
Procedure)
Rules,
CI
47 – Whether or not the
action
was
statute
barred or
it
was
within
time
-
HEADNOTES
The plaintiff
claiming
that
the
defendant
had
breached
its
contractual
undertaking
to
construct
a
cold
store
for
him
took
out
the
writ
of summons
herein claiming
a
refund
of
the
sum
of US
$250,000.00
which
it
considered
as due
out
of
an
amount
of
US$
400,000.00
which
he
had
paid
to
the
defendant
towards
the
execution
of
the
contract.
In
her
defence
to
the
action,
the
defendant
averred
among
others that the
action
was
statute
barred.
By
its decision,
the
Court
of Appeal
upheld
the
trial
High
Court’s
order
of dismissal
of an application
to
dismiss
the action
herein
on
a
point
of law.
HELD
In our
view,
had
the
trial
judge
exercised
the
powers
available
to
him in accordance
with
the
Rules,
he
would in
all probability
have
refused
the application
for
the reasons
herein
before
mentioned
It
is
observed
that
our
courts
must
be alert
to
the
creeping
practice
of allowing
preliminary
points
to
be taken
for
trial
without
regard
to
their capacity to bring
a
substantial
end
to the
matter.
Such indiscretions
add
to the
caseload
of appellate
courts
and
waste
precious
time
which
would
otherwise
have
been
expended
on
other
cases
and
have
the
tendency
of increasing
the
expenses
incurred
in
litigation.
For the
above
reasons
the
appeal
herein fails.
The
decision
of
the
Court
of
Appeal
is
accordingly
upheld although
for
different
reasons.
STATUTES REFERRED TO IN JUDGMENT
High Court
(Civil
Procedure)
Rules,
CI
47
CASES REFERRED TO IN JUDGMENT
Ofei
Kweku
Mante
(Substituted
by
Reverend
Alex
Aryeequaye)
v
Mike
Similao
and
Others,
Suit
Number
J4/10/2017.
SC
Apenteng
and
Others
v
Bank
of
West
Africa
and
Others. [1969]1
GLR
196,
Windsor
Refrigerator
Co
Ltd
v
Branch
Nominees
Ltd
[1961]
1
All ER 277
Miller
v
Attorney
General
[1975]
2
GLR
31
Akufo-Addo
v
Catheline
[1992]
1
GLR
377;
(2)
Tindana
v
Chief
of
Defence
Staff
[2011]
2 SCGLR
732.
BOOKS REFERRED TO IN JUDGMENT
Atkin’s
Court
Forms
Volume
23
at
page
155,
2nd
edition
(1978
issue)
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC: -
COUNSEL
AMARTEI AMARTEIFIO
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
EFIBA AMIHERE FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
GBADEGBE, JSC:
-
This is an
appeal from
the
decision
of
the
Court
of
Appeal.
By
its
decision,
the
Court
of Appeal
upheld
the
trial
High
Court’s
order
of dismissal
of an application
to
dismiss
the action
herein
on
a
point
of law.
The circumstances
in
which
the
appeal
arises
may
be
stated
shortly as
follows.
For
convenience,
in
these proceedings,
the
parties shall
bear the
same
designation
that
they
bore
in
the
trial
court
and
accordingly
the
respondent
herein shall
be described
simply
as
the
plaintiff
and
the appellant
herein
as the defendant.
The
plaintiff
claiming
that
the
defendant
had
breached
its
contractual
undertaking
to
construct
a
cold
store
for
him
took
out
the
writ
of summons
herein claiming
a
refund
of
the
sum
of US
$250,000.00
which
it
considered
as due
out
of
an
amount
of
US$
400,000.00
which
he
had
paid
to
the
defendant
towards
the
execution
of
the
contract.
In
her
defence
to
the
action,
the
defendant
averred
among
others that the
action
was
statute
barred.
As
the
appeal
herein
turns
on
a
process
founded
on
the
said
plea, it is useful
to
refer
to
it in
extenso
in
paragraph
11
of
the
statement
of
defence
filed
by
the
defendant
to
the
action.
By
the said
pleading,
it
was
averred
thus:
“The
Defendant
says
that
the
Plaintiff’s
claim
is
statute
barred.”
Subsequently,
the plaintiff
filed a
reply in
which
he
denied
the
said
plea;
the said
process
was
filed
in the registry
of
the
trial
court
on
June
12,
2015.
Certain
other
steps
were
pursued
in the
matter
which would
be
referred to
in
the
course
of
this
delivery
in
so
far
as
they
have
a
bearing
on
the
issues
to
be resolved
in
the instant appeal.
Since
the
proceedings
herein
is
concerned
with
the
defendant’s
aforesaid
application,
we
turn our
attention
at
once
to
the
said
process
that
was
filed
on
November
17,
2015.
The
said
application
was
heard
by
the
trial
court
and
dismissed;
the
defendant
claiming
to
have
been
aggrieved with
the
said ruling
appealed
to the
Court
of Appeal. The
defendant’s
appeal
suffered
a
dismissal and
we
are
now
faced in
these
proceedings
with a
further
appeal
to
us.
As the
parties
to
the
proceedings
herein
having
filed
their
respective
statements
of case
and the
matter
adjourned
for
judgment,
this delivery
is
directed
towards
the
resolution
of
the
questions
arising
for
decision
in
the
matter.
Having
read
the
record
of
proceedings
and
considered
the
written
briefs
submitted
to
us by
the
parties,
the
critical
question
that
in
our
view
comes
up
for
consideration
is whether
the
application
on
which
these
proceedings
are
based comes
within
the
scope
of
Order
33, r5,
of the
High
Court
(Civil
Procedure)
Rules,
CI
47
under
which
the
defendant
purportedly
filed
his
application.
Before
proceeding
further,
it
is
observed
that although this
question
was
not
raised
by either party,
we
think
that
it
is
of
importance
to our
trial
processes and deserves
some
consideration
as when
properly
utilized
it
serves
as
a useful case
management
technique
in
our
efforts
to
expedite
justice
delivery.
A
positive
resolution
of
the
question
posed
will
enable
us
to
proceed
further
to
consider
the appeal herein substantively
in terms
of
the
grounds
of appeal. A negative
resolution
of
the said
question,
however,
will
preclude
us from
inquiring
into
the
grounds
of
appeal
as
its
effect
is
that
the application
was
improperly
constituted.
As
indicated,
the determination
commences
with
the
nature
and
or scope
of
Order
33
applications.
In
the
heading
of
the
body
of
the
motion
paper
filed
on
November
17,
2015
before
the
trial
High
Court,
the defendant
demanded
from
the
court
“MOTION
ON
NOTICE FOR AN ORDER
TO
DISMISS
THE ACTION: ORDER
33
RULE
5)”.
For a
better
understanding
of
the
powers
conferred
on the
trial
court
under
the
said
rule,
reference
is
made
to
the
relevant
rules
of Order
33
and
for
this
purpose,
rules
3
to
5
of
the
said
order
may
be alluded
to.
“3. The
Court
may
order
any question
or issue arising
in any
cause
or
matter
whether
of
fact
or law,
or partly
of fact
and
partly
law,
and
raised
by
the pleadings
to
be
tried
before,
at
or after the
trial
of
the cause or
matter
and
may
give
directions
as
to the
manner
in
which
the question
or issue
shall
be
stated.
4.(1)
In
every
action,
an
order
made
on
an
application
for
directions
shall,
subject
to
any
law,
determine
the
place
and
mode
of
trial,
and
may be
varied
by
a
subsequent
order
of
the
Court
made
at
or before
the
trial.
(2)
In
an
action
different
questions
or
issues
may
be
ordered
to
be
tried at
different
places
or
by
different
modes
of
trial
and
one
or
more
questions
or
issues
may
be
ordered
to
be
tried
before
the
others.
(3) The
references
in this
Order
to
an application
for
directions
include references
to
any
application
to which,
under any
of
these
Rules,
Order
32
rules
4
to
9
are
to
apply
with
or
without
modifications.
5. Where
it
appears
to the
Court
that
the
decision
of
any
question
or issue
arising
in any
cause
or
matter
and
tried separately
from
the
main
cause
or
matter
substantially
disposes
of
the
cause
or
matter
or renders
trial
of
the
main
cause
or
matter
unnecessary,
it
may
dismiss
the
cause
or
matter
or
make
such
preliminary
question
order
or give such judgment
as
may
be
just.”
In
order
to
fully appreciate
the
point
raised
by
us,
we make
reference
to
a
reply
filed
by
the
plaintiff
on
June
17,
2015
to
the defendant’s
defence.
Having
filed
the
said
process,
by
the
requirements
of Order
32 rule
2, an application
for
direction
was
to
be
filed
within
a
month
from the close
of pleadings as
set
out
in
Order
11
rule
19.
The
effect
of
the filing of
the
reply
is
that
there
was
a
joinder
of
issues
on
the
facts
pleaded by the parties
to
the action
including
the
plea
of
statute
of
limitation.
This
being the
case,
the defendant’s
obligation
when the
plaintiff
failed
to
take
out
the application
for
directions
was
either
to
apply
to
dismiss
the
action
or
to
apply
for
directions:
See:
Order
32
rules
2
and
3
of CI
47.
As
the
plea
of statute
of
limitation
was
denied
by
the plaintiff
in
paragraph
6
of
his
reply,
there
was
no
right
in the
defendant
to
have
taken
out
an
application
for
the
trial
of a
preliminary
point
of
law;
his
obligation
was
to
either
apply for
directions
or
wait
for
the plaintiff
to
do
so and
then
seek
an
order
at
the
hearing
of the directions
for
the
consideration
of
the
court
under
order 33
rule
3
for
the
separate
trial
of the
issue
of limitation
as
that
point
in
time
there
were
other
issues raised
on
the
pleadings
for
trial. The
case,
it
seems
had
by
effluxion
of
time
having
regard
to
the
state
of
the
pleadings
moved
beyond
an
application
being
flied simply
under
Order
11
rule
8
for
determination
under
Order 33 rule
5. In
the
circumstances,
the
issue
of limitation
could
only
have
been
determined
by
a full-scale
trial
or
an
order
for
separate
trial
under Order
33
rules
3
and
5.
At the
stage
of
the
proceedings
that
the
defendant
filed
the
application
relating
to the statute
of limitation,
the
court
was
required
to
determine
which
of
the
rival
factual
versions
put
up
by
the
parties
on
the
statute
of limitation
was
true,
was
it
that
the
action
was
barred
or
it
was
within
time?
The
determination
of
this
question
takes
the
matter
outside
the
determination
of
a
point
of
law
and rendered
it
one for
the
trial
of a
preliminary
point
of
law.
Whiles
the
former
use
of
the
term
refers
to arguments
on
objections
to
pleadings
such
as
that it
discloses
no
reasonable
cause
of
action
in which
the facts
are
not in
dispute,
the
latter
use
of
the
term
refers
to
a
point
of
law
which
though
raised
on
the pleadings
requires
evidence
to
sustain
it such
as res
judicata
and or as in this
case
the
question
of limitation.
It is
the latter
category
of point
of
law
namely,
the
trial
of
a
preliminary
point
of
law
that Order
33
regulates.
Again, unlike
the
determination
of points
of law
which
can
only
be
exercised
in
plain
and
obvious
cases,
that
involving
the
trial
of
a preliminary
point
of
law
is
decided
by
the
court
through
a trial in a manner
directed
first
by
the
court.
Writing
on the differences
between
these
two terms,
the
learned
authors in
Atkin’s
Court
Forms
Volume
23
at
page
155,
2nd
edition
(1978
issue)
state
as
follows:
“A
preliminary
point
of law
is
a particular
form
of a
preliminary
question
or issue
in
which
the
only
question
for
the decision
of
the
court
is a
point
of law.
The trial of a
preliminary point of law must be
distinguished from the
determination of a point of law
otherwise than by trial, for
example, a determination that
the pleading does not disclose a
reasonable cause of action or
ground of defence……………...”
And
in such
a
case, the applicant
does
not
apply
to
the
court
by
a
motion
setting
out
what in
his thinking
the
result
of
the
trial
of such
a point
is likely
to
be
but
as provided
in
Order
33
rule
3
must
seek
an
order
from
the
court
for
the
trial
of
the
point
of law.
When such
an application
is
made
to
the
court,
it is
the judge
who
determines
if it
is a
point
that
has
the
likelihood
of substantially
disposing
of
the
action and if
so
may
make
an
order
setting
down
the
point
of
law
for
a
preliminary
trial.
The
order
granting
the
application
identifies
the
point
of law
and directs
the
mode
of
trial
for
the
purpose
of
the
preliminary
trial.
The
applicant
is not
entitled
as
was
unfortunately
done
in
this
case to
indicate
what
the
result
of
the
preliminary
trial
would
be;
it
is
the function
of
the
judge
after
trying
the
point
of law
to
decide if the
action
may
be
dismissed
or
judgment
entered
accordingly.
Although
the authorised
rule
was
earlier
on
referred
to,
reference
is again made
to
it for
emphasis.
By
Order
33
rule
5
it
is
provided
as follows:
“Where
it
appears
to the
Court
that
the
decision
on
any
question
or issue arising
in any
cause
or
matter
and
tried separately
from
the
main
cause
or
matter
substantially
disposes
of
the
cause
or
matter
or renders
the
trial
of
the
main
cause
or
matter
unnecessary,
it
may
dismiss
the
cause
or
matter
or
make such
other
or give
such
judgment
accordingly.”
The
application
of
the
defendant
quite
clearly
was
not
within
rules
3
and
5
of
the
Order
in
many
respects. First,
it
was
made
in a form
which
had
unfortunately
determined
the
mode
of
the
trial
of
the
point
of law
contrary
to
rules
3
and
4
of
the
order.
By
rule
3,
the
Court
is required
to
carefully
formulate
the point
of
law
or fact
in
issue and also
the
form
that
the
trial
of
the said
question
will
take.
See:
(1)
Ofei
Kweku
Mante
(Substituted
by
Reverend
Alex
Aryeequaye)
v
Mike
Similao
and
Others, an
unreported judgment
of
the
SC
dated
May
11,
2017
in
Suit
Number
J4/10/2017.
Secondly,
it
is
the judge who after
the
hearing
depending
on
how
it
is
determined
reaches
the
decision
on
whether
or
not
the action
should
be
dismissed
or
judgment
entered
accordingly.
As
the
application
failed
to
satisfy
any
of
the
essential
pre-requisites
for
the
order
of
the
trial
of
the
preliminary
question
relating
to
the
statute of
limitation,
the
application
was
essentially
an
ordinary
motion
in
the
cause
authorised
by
Order
19
rule1
and
thus
irremediably
an
incompetent
process.
Even
considering
it
as an
application
under
Order
11 rule
8,
it
suffered
from
substantial
and
procedural
defects
as
the
defendant
sought
to
prove
the question
of limitation
by
reference
to
affidavit
evidence
contrary
to
the
settled
practice
of
the
court
in
cases where objections
are taken
to
pleadings
under the
Rules
of
Court.
We
wish
to
observe
that
it
is
important
for
trial
courts
to
uphold
the
provisions
contained
in
the Rules. This can
only
be
done
when
the
rules
are
looked
at
sequentially,
as
for
example
when
in
the
matter
before
us a
reply
was
filed
to
a
statement
of
defence
in which
the
crucial
facts on
which
the
plea
of limitation
is
based in denied then
as a
matter
of law,
the
facts
constituting
the
said
plea
cannot
be
determined
without
a
trial
subject
to
orders
that
the
court
may
make
under
Order
33
rules
3
and
5.
As stated
earlier in the
preceding
paragraph,
objections
on
pleadings
taken
under
Rules
of
Court
cannot
relate
to
disputed
facts.
See:
(1)
Apenteng
and
Others
v
Bank
of
West
Africa
and
Others.
[1969]1
GLR
196,
(2)
Windsor
Refrigerator
Co
Ltd
v
Branch
Nominees
Ltd [1961]
1
All ER
277.
Accordingly,
the
application
to
dismiss
the action
filed
by
the
defendant
was
improperly
constituted
and
rendered
the
proceedings
founded
thereupon
a
nullity.
Had the
learned trial judge
adverted
his
mind
to
the fact
that the application
before
him
was
filed long
after
the
close
of
pleadings
and
indeed after
the
time
allowed
under the Rules
for
directions
to
be
taken, he
would
have
realized
that
it
could
only
properly
have
been
sought
either
at
the hearing
of application
for
directions
under Order
32r,5
or
subsequently
by
way
of an application
for
further directions
in
the
matter
under rule 9
of
the
Order.
In
our
view,
had
the
trial
judge
exercised
the
powers
available
to
him in accordance
with
the
Rules,
he
would in
all probability
have
refused
the application
for
the reasons
herein
before
mentioned.
Having
reached this
view
of
the
matter,
we
are precluded
from
attending
to
the
grounds
of
appeal
filed
by the
defendant
before
us.
It
is unfortunate
to
observe
that
the
trial High
Court
acceded
to
an application
which
even
a
casual
reading
would
have
revealed
was
not
within
the
scope
of
the
enabling
rule.
Then there is
the
question
concerning
the
sufficiency
of
the
pleading
by
which
the
point
of
law regarding
the
statute
of
limitation
was
raised.
In
raising a
point
of
law
relating
to
the
statute
of limitation,
the
defendant
was
required
to
have
done
so
distinctly
by
referring
to
the
statute
and
the
particular
provisions
on
which
he
relied
and
the
facts
which
entitled
him
to
so
plead;
it
is
not
sufficient
to
say
simply
as appears in
defendant’s
paragraph
11
of
the
statement
of
defence
that:
“The
defendant
says
that
the
plaintiff’s
action
is
statute
barred.”
Even
in
cases
where
the
statement
of
claim
or
other
defaulting
pleading
on
the
face
of it
appears that
the action is
out
of
time,
the
objecting
party
is
under
an
obligation
to
distinctly
and
specifically refer
to the applicable
statutory
provisions
and
also state
the
facts
on which
the
point
of
law is
planked.
A careful
reading
of
Order
11, rule
18,
of CI
47
which
is
reproduced below
renders
the
position
tolerably
clearer.
“A
party
shall
in
any
pleading
subsequent
to
a
statement
of
claim
plead
specifically
any
matter,
for
example,
performance,
release,
any
limitation
provision,
fraud
or any
fact showing
illegality
(a)
which
the
party
alleges
makes
any
claim
or defence of
the
opposite
party
not
maintainable;
or
(b)
which,
if
not
sufficiently
pleaded,
might
take
the
opposite
party
by
surprise;
or
(c)
Which raises
issues
of
fact
not
arising
out
of
the preceding
pleading.”
As the
question
of limitation
is
not
apparent
from
the statement
of
claim
and
the defendant
failed
in
making
the
plea
contained
in
his
paragraph
11
of
the
statement
of
defence
to
specifically
state the statutory
provision
and
the
facts
from
which
the
defence
of
limitation
was
derived
from,
the
purported
trial
was on
an
incompetent
plea. See: Miller
v
Attorney
General
[1975]
2
GLR
31.
In
the
Miller
case,
Abban, J
delivered
himself
on
the
point
at
page
36-37
in
the
following
words.
“A
point
of
law
must
be
raised
on
the facts
pleaded.
Otherwise
how
can
the
court,
at
that
stage
of
the
proceedings
and
in the absence
of
those
facts
from
the
pleadings,
determine
whether
or
not
the said
preliminary
point
of
law
as
raised
is
well
founded.
Order 25
r,
2
gives
a party
the
right
to
raise a
point
of law by
his pleadings.
But,
in
my
view,
the
material
facts upon
which
the
point
of
law is
to
be
grounded
must
be
clearly
pleaded.”
There
is
no
doubt
therefore
that
the pleading
on
which
the
point
of
law
was
raised
was incompetent
and
deprived
the
proceedings
based
thereon
of any
validity.
The
question
which
we
then have
to
address
is
that
arising
under
rule
6(8)
of
CI
16
namely
affording
the
parties
the
opportunity
to
argue
the
point
raised
by
us.
There
is authority
in the
court in
situations
where
the
point
raised
by
the
court
is clearly
unanswerable
not
to
detain
its
precious
time
to
afford
the
parties an
opportunity
which
will
serve
no
useful
purpose.
See:
(1)
Akufo-Addo
v
Catheline
[1992]
1
GLR
377;
(2)
Tindana
v
Chief
of
Defence
Staff
[2011]
2 SCGLR
732.
In
any
case,
a party
who
takes
out
a
process
of
court
under
a particular rule
is
obliged
to
satisfy
the
court
that
the
application
is
within
the
scope
of the
enabling
provision.
There
is
no
doubt
in
our
mind
that
the
course
of proceeding
had
in this
court
will
better
serve
the need
for
quality
and
expeditious
justice delivery
as
by
our
decision
the
action
has
to
be remitted
to the
trial
court.
Further,
it
is
hoped
that
this
decision
will provide
future
guidance
to
trial
judges in
our
common
endeavour
to
expedite
the
trial
of
cases.
It
is
observed
that
our
courts
must
be alert
to
the
creeping
practice
of allowing
preliminary
points
to
be taken
for
trial
without
regard
to
their capacity to bring
a
substantial
end
to the
matter.
Such indiscretions
add
to the
caseload
of appellate
courts
and
waste
precious
time
which
would
otherwise
have
been
expended
on
other
cases
and
have
the
tendency
of increasing
the
expenses
incurred
in
litigation.
For the
above
reasons
the
appeal
herein fails.
The
decision
of
the
Court
of
Appeal
is
accordingly
upheld although
for
different
reasons.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER, JSC:-
I agree with the
conclusion and reasoning of my
brother Gbadegbe, JSC.
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AMARTEI AMARTEIFIO
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
EFIBA AMIHERE FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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