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Practice and Procedure--When pleadings may be ordered--:-Recording of reasons for order-Order 25, rule 1 and rule 2.

Jurisdiction-Deed of sale of land attacked as a forgery-Claim to ownership of land besides.

The above-cited rules read as follows:-

"1. Suits shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the Court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to do SO, the Court may order the plaintiff to file a written statement of his claim (called the petition), and may likewise order the defendant to file a written answer or statement of his defence. The filing of a petition shall not necessarily involve, unless the Court so directs, that an answer shall also be filed. The order may be made at any stage of a suit, either before or at the hearing.

"2. In making any such order, the Court shall have regard to the condition of the parties, and shall not require any party to file a written statement who, from want of education, is incapable of preparing or understanding the same. If in any case the Court considers it necessary, in the interests of justice, that anv statement of such party should be reduced into writing previous to the hearing, the Court may direct that the same be taken down in writing by the Registrar or other fit officer of the Court, and after verifying the statement so prepared by oral examination of the party where necessary, may direct, if it thinks fit, that such statement be filed as a pleading."

In the Court below the plaintiff sued for a declaration of title and the cancellation of a sale by the deceased to the defendant as being fraudulent. The plaintiff appeared by Counsel and asked for an order of pleadings, saying the action was complicated but not explaining why; the defendant appeared in person. Pleadings were ordered, but no reason was recorded why they were. Upon the defendant failing to file his defence as ordered, plaintiff moved for judgment; defendant appeared but gave no reason for his failure, nor did he ask for more time; judgment was given, and the defendant appealed on the grounds:-

(a) that it was a claim to ownership of land, which the Supreme Court could not hear, and

(b) that the order for pleadings was a nullity in that Order 25, rules 1 and 2, were not complied with. It appeared that the defendant did not understand English, but of this he did not inform the trial Court.

Held: (1) The Writ and the Statement of Claim showed that the real matter

in issue was whether the deed of sale was a genuine document or a forgery; and the fact that the question of Ownership followed upon the determination of that matter did not necessarily make the issue one of ownership.

(2) Pleadings are onlj to be ordered in the circumstances laid down in rule 1 of Order 25 and the reasons for such an order must be recorded. That rule was not complied with and the order for pleadings was therefore a nullity.

Case cited:-

Adu Kofi v. Chief Kwesi'Brentuo, 10 W.A.C.A. 92. Appeal by defendant: No.68/50.

N. A. Ollennufor Appellant.

W. Bruce-Lyle for Respondent.

The following judgments were delivered:

Manyo-Plange, J. In this case, the plaintiff claimed by his Writ of Summons as successor to Kwaku Duah, deceased, for a declaration of title as such successor to House No. 58 Zanga Extension, Kumasi, the property of Kwaku Duah, deceased, and for cancellation of an Indenture of Sale dated 16th October, 1933, purported to have been executed by the late Kwaku Duah as vendor, and Kwaku Boakyi as purchaser; the said sale being fraudulent.

When the case came up for hearing the plaintiff was represented by Counsel, but the defendant appeared in person. Counsel for the plaintiff asked for pleadings stating that the action was a complicated one. In what respect it was complicated he did not state. The learned trial Judge ordered pleadings to be filed, statement of claim within 15 days and statement of defence to be filed within 15 days from service of statement of claim. There are no reasons recorded for the order for pleadings.

Statement of claim was filed by the plaintiff and this was duly served upon the defendant on the 12th May, 1950. No defence having been filed within the time ordered, on the 13th July, 1950, the Court was moved ex parte for judgment to be entered for the plaintiff in default. The learned trial Judge ordered Notice to be served upon the defendant and this was accordingly done. Notice of Motion was served upon the defendant on the 4th of August, 1950. The Motion came up for hearing three weeks later, that is on the 25th August, 1950. The defendant appeared and he admitted service upon him of the documents, but gave no reasons for his failure to file a statement of defence in time or to apply for an extension of time within which to do so and judgment was entered for the plaintiff. It is against this judgment that the defendant has appealed to this Court.

The first ground of appeal was on the question of jurisdiction, namely, as the claim was .for ownership of land, the Supreme Court had no jurisdiction to deal with the matter. On the authority of Adu Kofi v. Chief Kwesi Brentuo, (1), to determine the question of jurisdiction, it is the Writ and the pleadings that one is to look at, to find out what is the real matter in issue. In this case, I am of the opinion, looking at the Writ and the pleadings, that the real matter in issue was, whether the Deed of Indenture, purported to be an Indenture for sale, was a genuine document or a forgery. The fact that the question of ownership follows upon the determination as to the genuineness or otherwise of the document, did not necessarily make the issue one of ownership. In my view it was the genuineness of the document that was the real issue in the case and the Supreme Court was competent to try it; therefore the appeal on this ground, must fail.

The next point which was taken was ground 3 (a) of the grounds of appeal.

Counsel for the appellant has contended and in my view, rightly so, that the order for. pleadings was a nullity in that the provisions of Order 25, rules 1 and 2 were not complied with by the learned trial· Judge.

By rule 1 of 0rder 25, suits shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the Court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to ~ so, the Court may order the plaintiff to file a written statement of his claim (called the petition), and may likewise order the defendant to file a written answer or statement of defence. It is clear that the provision is mandatory and the requirement for the recording of reasons in my view, is also mandatory.

Rule 2 of the same order, provides that (if it has been decided to order pleadings) where any party is illiterate and is incapable of understanding the pleadings, then, the Court shall not require pleadings to be filed and, if it does do so, then the procedure laid down therein shall be followed.

It is true that in this case there is nothing on the record which indicates that the defendant-appellant is illiterate, but by the affidavit filed by the appellant, and the reply by the plaintiff, it is clear, that before the trial Judge it was apparent that the appellant did not understand English; because the order was interpreted to him.

The appellant could easily have remedied the position by informing the Court that he did not understand English and the provisions of rule 2 would then have been complied with, but he did not do so. He ,,;ent off, and, when the ex parte Motion was filed for judgment to be entered, the Court ordered notice to be given and the appellant was served. The appellant being a money lender, it is inconceivable that he would have received a document from the Court in a suit in which he was defendant, without taking any steps to ascertain the contents of the document. Finally he appeared before the Court in person and, when he was asked why he had done nothing, he admitted the documents had been duly served upon him, but gave no satisfactory explanation to the Court as to why he had failed to file a statement of defence or why he had failed to apply for an extension of the time within which to do so. But for the mandatory provisions of Order 25, I would say that the appellant should not now be heard to complain, since in my view, he is not entitled to any sympathy whatever. He is however, entitled to his legal right.

The law provides that pleadings are only to be ordered in the circumstances laid down in rule 1 of Order 25 and the reasons for so doing to be recorded.

It is clear that the learned trial Judge had contravened or failed to comply with the provisions of that rule; therefore the order for pleadings in my view was a nullity and the appellant is entitled to succeed in this appeal. The plaintiff is also, to a certain extent, to be blamed, for he contributed to the contravention of the Order I have just referred to by his Counsel stating to the Court that the action was a complicated one which required pleadings. The action in fact was a very simple one for the cancellation of a deed on the ground of fraud.

In my opinion the appeal should be allowed and the Order I would make is that the case should be remitted to the Court below to be re-tried and the costs in this Court and the Court below to abide the event.

Foster-Sutton, P. I agree that this appeal should be allowed for the reasons stated. The case should be remitted back to the Court below to be re-tried. In my opinion pleadings were not necessary. Costs in the Court below and costs of this appeal to follow event in the Court below. The appellant's costs on this appeal, if he succeeds in the Court below, are fixed at £26 8s. 0d., and the respondent's costs on this appeal, if· he succeeds in the Court below, are fixed at £12 18s. 0d.