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Land -
Declaration
of title - Agreement - Sale
and purchase
-
Transfer of land documents –
Recovery of possession
- Practice and Procedure – Leave
to amend Statement of Claim –
Whether or not the judgment is
against weight of evidence -
Whether or not the court of
appeal erred in law by affirming
the ruling of the high court
granting leave to defendant to
amend his pleading -
Rule 6(4)
- Supreme Court Rules 1996 CI 16
- Order 1 Rule 1 (2)
- Order 11 rule 18 (1) (a)
and Order 23 rule 6(1) - High
Court (Civil Procedure) Rules,
2004 -
HEADNOTES
The Plaintiff is contesting the
leave granted by the High Court
to the Defendant to amend his
defence to the Plaintiff’s
action. In his Statement of
Claim, the Plaintiff had
averredthat it was a term of the
sale and
purchase agreement he
entered into with defendant that
he was to pay GH₵40,000 to the
defendant whilst the remaining
balance of GH₵30,000 ‘shall be
paid after the
transfer’
of the necessary land documents.
In his original defence to
the Plaintiff’s claims, the
Defendant had denied all
averments in the Statement of
Claim and pleaded in his
Statement of Defence that
the said plot of land was to be
sold to the plaintiff for Gh₵70,000
and the plaintiff paid GH₵40,000
leaving a balance of 30,000 to
be paid after the transfer of
the document thereof’ The
Plaintiff applied for judgment
on admissions. Before the
Plaintiff’s application for
judgment could be heard, the
Defendant filed an Amended
Defence and opposed the
application for judgment on
admissions. This amended Defence
was struck out on account of
failure to seek leave prior to
filing same before the hearing
of his application for judgment
on admissions on the principal
ground that the application was
incompetent on account of
seeking to defeat his prior
application for judgment on
admissions The court heard the
Defendant’s application for
leave to amend his Defence
first, granted same, and the
Plaintiff appealed to the Court
of Appeal to set aside the order
granting Defendant leave to
amend his defence. The appeal to
the Court of Appeal was
dismissed, leading to the
present appeal .
HELD
We therefore do not think that
it is an act of mala fides
calculated to over reach an
application for judgment on
admissions for the defendant to
apply to amend his defence
within the terms he applied for.
And especially so when the
Amended Defence only reflects an
expansion of the tenor of
matters raised in the original
Statement of Defence, with
various embellishments. As to
whether or not the defendant’s
version of events constitutes a
tenable defence, this is a
matter that the court has
exercised discretion to allow
the parties to ventilate and
this is in line with the
directions of Order 1 Rule 1
(2) of CI 47 which enjoins
the rules of court to be
interpreted and applied so as to
ensure effective resolution of
all matters in controversy
between the parties. We agree
with the court of appeal that
the learned trial judge cannot
be faulted in the exercise of
his discretion when he allowed
the amendment. The appeal fails.
It is thus quite clear that
because the Appellant had
endorsed his writ with the
relief of declaration of title
to land, the subject matter of
the suit, he could not take
judgment on admissions, so the
application by the Appellant was
wrong in law in the first place.
The entire proceedings
concerning the application for
judgment on admissions was
incompetent and for that matter
the appeal ought to fail. I will
therefore dismiss the appeal for
the reasons above.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules 1996 CI 16
High Court (Civil Procedure)
Rules, 2004 CI 47
CASES REFERRED TO IN JUDGMENT
Tildesley v Harper 1878 10 Chan
Div 393
Copper v Smith 1884 26 Chan. Div
700,
Clarapede & Co v. Commercial
Unions Association 1883 32 WR
262
Pomaa & Ors v Fosuhene 1987/88 1
GLR 244
Fabrina Oil v Shell 2011 1 SCGLR
429
Armah v Addoquaye 1972 1 GLR
109
Hammond v. Odoi [1982-83[ 2 GLR
1215
Adehyeman Industrial Complex v.
Ofosu Mensah [2010- 2012]2 GLR 3
Klah v. Phoenix Insurance Co.
Ltd. [2012] 2 SCGLR II39
Republic v. High Court Accra;
Exparte Osafo [2011] 2 SCGLR 966
Metzger v Department of Health
& Social Security [1977] 3 All
ER 444
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
TORKORNOO,
(MRS.) JSC:-
COUNSEL
G.
AGYABENG AKRASI FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
BENONY AMEKUDZI FOR THE
DEFENDANT/RESPONDENT/RESPONDENT
TORKORNOO, (MRS.) JSC:-
The
Plaintiff/Appellant/Appellant
(Plaintiff) is contesting the
leave granted by the High Court
to the
Defendant/Respondent/Respondent
(Defendant) to amend his defence
to the Plaintiff’s action. In
his Statement of Claim, the
Plaintiff had averred in his
paragraph 4 that
4. Plaintiff avers that it
was a term of the sale and
purchase agreement he entered
into with defendant that he was
to pay GH₵40,000 to the
defendant whilst the remaining
balance of GH₵30,000 ‘shall be
paid after the transfer’ of the
necessary land documents’
In his original defence to the
Plaintiff’s claims, the
Defendant had denied all
averments in the Statement of
Claim and pleaded in Paragraph 4
of his Statement of Defence that
4. In further denial, the
defendant will contend
that the
said plot of land was to be sold
to the plaintiff for Gh₵70,000
and the plaintiff paid GH₵40,000
leaving a balance of 30,000 to
be paid after the transfer of
the document thereof’
The Plaintiff applied for
judgment on admissions
pursuant to
Order
23 rule 6(1) and Order 11 rule
18 (1) (a) of the
High
Court (Civil Procedure) Rules,
2004 CI 47 on the basis
of this Paragraph 4.
Before
the Plaintiff’s application for
judgment could be heard, the
Defendant filed an Amended
Defence and opposed the
application for judgment on
admissions. This amended Defence
was struck out on account of
failure to seek leave prior to
filing same.
Thereafter, the Defendant
applied to the High Court for
leave to amend his Defence. The
Plaintiff opposed the hearing of
this application for leave to
amend the Defence
before
the hearing of his application
for judgment on admissions on
the principal ground that the
application was incompetent on
account of seeking to defeat his
prior application for judgment
on admissions..
The court heard the Defendant’s
application for leave to amend
his Defence first, granted same,
and the Plaintiff appealed to
the Court of Appeal to set aside
the order granting Defendant
leave to amend his defence. The
appeal to the Court of Appeal
was dismissed, leading to the
present appeal on the following
grounds:
1.
The judgment is against weight
of evidence
2.
The court of appeal erred in law
by affirming the ruling of the
high court granting leave to
defendant to amend his pleading,
even though the court agreed
with plaintiff about the
defendant’s motion on notice to
amend was ‘well-founded’,
thereby rendering moot,
plaintiff’s first in time
application for judgment on
admission
Rule 6(4)
of the Supreme Court Rules
1996 CI 16 reads:
‘The grounds of appeal shall
set out concisely and under
distinct heads the grounds upon
which the appellant intends to
rely at the hearing of the
appeal, without any argument
or narrative and shall be
numbered seriatim: and where a
ground of appeal is one of law
the appellant shall indicate the
stage of the proceedings at
which it was first raised’
(emphasis mine)
A cursery look at the second
ground of appeal shows that it
offends against Rule 6(4) of the
Supreme Court Rules 1996 CI 16
by being both narrative and
argumentative. We will therefore
strike it out under Rule 6 (5).
Was the ruling of the court of
appeal against the weight of
evidence? We do not think so.
Although the court of appeal
expended considerable evaluation
in its’ twenty page ruling, we
find the central kernels of
their ruling to be that:
a.
The trial judge exercised his
discretion properly when he
heard the defendant’s motion to
amend his statement of defence
first, though the plaintiff’s
application for judgment on
admission was filed first in
time. This is because basically,
the purpose of an amendment of
pleadings is to enable the court
to determine the real
question(s) in controversy
between the parties and as much
as possible, to avoid
multiplicity of suits. Citing
the case of
Tildesley v Harper 1878 10 Chan
Div 393 at 396,
the judgment set out that as a
general practice, an amendment
will be allowed unless
i.
it will entail injustice to the
respondent
ii.
the applicant is acting mala
fides,
iii.
by his blunder, the applicant
has done some injury to the
respondent which cannot be
compensated by costs or
otherwise
The Judgment also cited the
cases of
Copper v Smith 1884 26 Chan.
Div 700, Clarapede & Co v.
Commercial Unions Association
1883 32 WR 262 as
articulating the correct
principle that guides
consideration of amendment. This
is the principle that the object
of the courts is to decide the
rights of the parties, so if an
error is not fraudulent or
intended to overreach the court,
and will not occasion injustice
to the other side, then the
court ought to allow amendment
to correct it so that the real
matters in controversy between
the parties can be decided by
the courts.
b.
The Plaintiff’s whole protest to
the grant of amendment was that
his motion for judgment was
first in time to the application
for leave to amend and so should
have been heard first. This
rendered the application for
amendment an application brought
in bad faith and incompetent.
The Court of appeal disagreed
with this position and pointed
out that the application for
leave to amend, though filed
later in time, was fixed for the
same date that the plaintiff’s
application for judgment so both
applications were part of the
business of the day for the
court. One did not take
precedence over the other, and
there was no basis to fault the
exercise of discretion by the
trial judge to hear the
application for amendment first.
The trial judge violated no rule
of practice or procedure. The
ground of appeal that because
the court decided not to hear
the plaintiff’s motion filed
earlier in time resulted in a
patent miscarriage of justice is
not tenable as it is
misconceived.
The court of appeal supported
their decision with the dictum
of the Supreme Court per
Francois JSC in
Pomaa
& Ors v Fosuhene 1987/88 1 GLR
244 at 260 which
determined that ‘where there
are two applications one for
judgment and one for an
amendment, the amendment must be
dealt with first. If the
application for judgment is
taken first and it succeeds, the
application for amendment would
be rendered useless, and that is
the reason why an amendment
should have prior consideration’.
Citing Pomaa & Ors v Fosuhene
again, the court drew attention
to the fact that the admission
Plaintiff sought to rely on was
not clear and unequivocal. After
the first paragraph 4, the
defendant’s pleadings in
paragraph 5, 8, 9 and 10
negatived an intention to admit
plaintiff’s paragraph 4. These
paragraphs watered down the
admission and rendered it
ambiguous.
Though the Plaintiff continues
to decry this reasoning of the
Court of Appeal in his Statement
of Case, we agree with it, and
find that neither the high court
nor the court of appeal
decisions are against the weight
of evidence. We also note the
citation of
Fabrina Oil v Shell 2011 1 SCGLR
429 and Armah v
Addoquaye 1972 1 GLR 109
by Appellant counsel as
authority that disallows a party
from changing the nature of
their case through amendment. We
do not see this to be the
situation in contention before
us.
The said paragraphs 5, 8, and 10
of the original defence read:
5. The defendant says the
plaintiff did not pay the said
balance, nor did he apply and
obtain building permit before
embarking on the development of
the land
8. The defendant says since
August 2014 that the plaintiff
paid the initial deposit, he has
failed and refused to pay the
balance of 30,000 Ghc even as at
January 2016.
10.
The defendant will contend
therefore that the plaintiff’s
conduct and behavior did not
demonstrate that he was ready to
purchase the said land as
alleged
Thus immediately after admitting
that the consideration for the
transaction was GH₵70,000, and
part payment of GH₵40,000 was
made, with the balance due on
transfer of title, the defendant
raised a protest about an
alleged intervening misstep from
Plaintiff prior to completion of
payment. From the paragraph 5
therefore, there was not an
unequivocal admission of
completion of the sale
transaction that arises from the
Plaintiff’s claim for
declaration and specific
performance of the sale of the
land.
We therefore do not think that
it is an act of mala fides
calculated to over reach an
application for judgment on
admissions for the defendant to
apply to amend his defence
within the terms he applied for.
And especially so when the
Amended Defence only reflects an
expansion of the tenor of
matters raised in the original
Statement of Defence, with
various embellishments. As to
whether or not the defendant’s
version of events constitutes a
tenable defence, this is a
matter that the court has
exercised discretion to allow
the parties to ventilate and
this is in line with the
directions of
Order
1 Rule 1 (2) of CI 47
which enjoins the rules of court
to be interpreted and applied so
as to ensure effective
resolution of all matters in
controversy between the parties.
We agree with the court of
appeal that the learned trial
judge cannot be faulted in the
exercise of his discretion when
he allowed the amendment. The
appeal fails.
G. TORKORNOO (MRS.)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(CHIEF JUSTICE)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:
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I have had the privilege of
reading beforehand the
well-reasoned opinion of my
sister Torkornoo, JSC and I
entirely agree that this appeal
which is interlocutory in nature
be dismissed. I however want to
express some thoughts on the
procedure adopted by learned
counsel of the Appellant that
has culminated in this appeal.
In this concurrent opinion, I
intend to address the issue
whether by the nature of the
pleadings the Appellant was
entitled in law to even apply
for Judgment on Admissions under
Order 23 of the High Court
(Civil Procedure) Rules, 2004,
CI 47, as he did.
The Appellant who commenced this
action as plaintiff endorsed his
writ of summons with the
following reliefs:
‘’1. A
declaration that all that
piece or parcel of land situate
lying and being at Dome Pillar 2
Transformer Junction near Al
Huda Hotel measuring 100 feet by
100 feet and sharing boundaries
with property Nos 1 and 3 on the
Lom Nava Herbal road and the
property of another was sold to
Plaintiff by Defendant on 12th
August, 2014, per contract
document signed by the parties.
2. An order for specific
performance against the
Defendant, his assigns and
agents whatsoever.
3. Perpetual injunction
4.
Recovery
of possession
5. Cost.”
Now, from the above reliefs
endorsed on the writ of summons,
it is very clear that the
Appellant’s cause of action was
mainly one of declaration of
title to land, recovery of
possession and specific
performance of a contract of
sale of land. Appellant’s action
was not one for a liquidated
claim or for the recovery of
money.
At paragraphs 4 and 5 of the
Statement of Claim, the
Appellant pleaded the contract
as follows:-
‘’4. Plaintiff avers that
it was a term of the sale and
purchase agreement he entered
into with defendant that he was
to pay GHC 40,000.00 whilst the
remaining GHC 30,000.00 ‘’ shall
be paid after the transfer’’ of
the necessary land documents.
5. Plaintiff says he
duly paid the GHC 40,000.00 to
Defendant and this was
acknowledged in writing on 12th
August 2014 aforesaid.’’
In response to the above
pleadings the Defendant stated
at paragraph 4 of the original
Statement of Defence as
follows:-
‘’4. In further denial,
the Defendant will contend that
the said plot of land was to be
sold to the plaintiff for GHC
70,000.00 and the plaintiff paid
GHC 40,000.00 leaving a balance
of GHC 30,000.00 to be paid
after the transfer of the
document thereof.’’
Against this response, counsel
for the Appellant contended that
the Defendant had admitted that
Appellant was entitled to GHC
40,000.00 from the Defendant
hence his application for
judgment on admissions for the
GHC 40,000.00. It is clear from
the above pleadings that there
was no contention about the GHC
40,000.00 to warrant an
admission as claimed by Counsel
for Appellant. Both parties were
pleading to the terms in the
contract for the sale of the
land. Appellant was therefore
not making an admission to a
fact or issue in controversy.
From the pleadings above,
Appellant knew at the time he
issued the writ of summons that
he had paid the amount of GHC
40,000.00 to the Defendant as
part- payment of the cost of the
land, which amount the Defendant
had receipted. However, the
Appellant did not deem it
necessary to sue for the GHC
40,000.00, he paid to the
Defendant. Instead, the
Appellant sued for declaration
of title, recovery of possession
and specific performance.
Indeed, by applying to enter
judgment on admissions, the
Appellant was substituting a new
cause of action in place of
those settled by the pleadings,
a procedure frown upon by the
rules of court. To put it
simply, appellant had no relief
of recovery of money before the
court and as such he could not
apply to enter judgment to
recovery money.
A cardinal principle in
procedural law is that parties
in an action are bound by their
pleadings and such parties may
only depart from their pleadings
through amendments allowed by
the law.
This principle has been given
statutory backing in Order 11 r
9 & 10 of the High Court (Civil
Procedure) Rules, 2004, CI 47
which provides as follows:-
‘’ 11 r. (9) Subject to
rules 7 (1), (10) & (15), a
party may in any pleading plead
any matter which has arisen at
any time, whether before or
after the issue of the writ;
(10) A party shall
not in any pleading make any
allegation of fact or raise any
new ground or claim,
inconsistent with previous
pleading made by the party.’’
The effect of this rule is that
since pleadings form the factual
basis upon which each party’s
case is built, parties in an
action are bound by their
pleadings, as such in the course
of the proceedings parties are
not allowed to allege new facts
or make new claims outside or
inconsistent with the original
pleading. This is to avoid
surprises in civil litigation,
hence the opportunity to amend
pleadings to correct genuine
errors in pleadings under Order
16 of CI 47. See:
Hammond v. Odoi [1982-83[ 2 GLR
1215
Adehyeman Industrial Complex v.
Ofosu Mensah [2010- 2012]2 GLR 3
Klah v. Phoenix Insurance Co.
Ltd. [2012] 2 SCGLR II39
The Appellant could not have
taken judgment on admissions
while his claim for declaration
of title, recovery of possession
and specific performance were
still pending. The point is how
could the Appellant recover the
part payment of GHC 40,000.00
and still had his relief of
specific performance pending?
The Appellant on the pleadings
could not have applied for
judgment on admissions without
first amending the reliefs so
endorsed on his writ of summons.
The simple reason is that
Appellant had no claim for
recovery of money endorsed on
his writ of summons.
Beside the fact that the
procedural law would not allow
Appellant, the right to enter
judgment on admissions, having
endorsed the writ of summons
with the relief of declaration
of title, it is trite that a
plaintiff who endorses such a
claim cannot avoid a trial. By
the relief of declaration of
title, the Appellant was
required by law to lead evidence
in a trial to proof title; and
for that reason the application
for judgment on admissions by
the Appellant was incompetent.
In
Republic v. High Court Accra;
Exparte Osafo [2011] 2 SCGLR 966.
This Court held that by the
settled practice of the courts,
for declaratory orders to be
good, such orders must be made
only after hearing all the
parties to the action or at
least offering them an
opportunity to be heard.
Therefore since the Appellant
had endorsed his writ with
declaration of title, the court
had to take evidence from the
parties before an order could be
made. That being the case the
Appellant could not have taken
the judgment on admissions,
since by the practice of the
courts, evidence ought to be
taken before any declaratory
order would be made.
In the Exparte Osafo, this Court
relied on the case of
Metzger v
Department of Health & Social
Security [1977] 3 All ER 444
at 451 where Megarry VC
delivered
as follows:
‘’The court does not make
declarations just because the
parties to litigation have
chosen to admit something. The
court declares what it has found
to be the law after proper
argument, not merely after
admission by the parties. There
are no declarations without
argument; that is quite plain.’’
It is thus quite clear that
because the Appellant had
endorsed his writ with the
relief of declaration of title
to land, the subject matter of
the suit, he could not take
judgment on admissions, so the
application by the Appellant was
wrong in law in the first place.
The entire proceedings
concerning the application for
judgment on admissions was
incompetent and for that matter
the appeal ought to fail. I will
therefore dismiss the appeal for
the reasons above.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME
COURT
COUNSEL
G. AGYABENG AKRASI FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
BENONY AMEKUDZI FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
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