Appeal Court.
15 May, 1936.
Appeal from Order of Divisional
Court.
Striking out and amending
Pleadings-Order
26, Rule 1, of General
Procedure Rules-Elimination of
statements tending to prejudice
embarrass or delay fair trial.
Held: Matter struck out
irrelevant, and appeal
dismissed.
A. W. Kojo Thompson
(with him W. E. G. Sekyi)
for Appellant
A.
J. Ainley for Crown.
The following judgment was
delivered :PETRIDES, c.J., GOLD
COAST.
From the statement of claim it
will be seen that the plaintiff
state that the Legislative
Council of the Colony passed
Ordinance No.3 of 1935, which
they allege, in paragraph eight,
" is an ordinance passed
ultra vires of the powers of
the said Legislative Council an
repugnant to the laws of England
and is therefore of no effect"
an ask for a declaration that
that ordinance is' one which the
Legislative Council could not
lawfully pass and that all acts
done or authorise to be done
thereunder were and are illegal.
They also claim a injunction to
restrain defendants or their
officers and servants from
acting under the authority of
that ordinance.
On an application made on behalf
of the defendants, Strother-Stewart,
J., ordered that :
(a)
part of paragraph 3 and the
whole of paragraphs 4, 5 and 6
of the statement of claim should
be struck out as being
evidence by which the
allegations set out in the
statement of claim are to be
proved contrary to section 3 of
Order 25 of the General
Procedure Rules
(b)
part of paragraph 7 should be
struck out as being irrelevant,
embarrassing and prejudicial;
(c)
plaintiffs should amend their
statement of claim so far as
paragaph 8 thereof is concerned
by specifying in what respect
the ordinance complained of is
ultra vires
and repugnant to the laws of
England.
From this order the plaintiffs
have appealed to this Court. On
the question of striking out or
amending pleadings it is stated
in a note to Order 19, Rule 27,
in the
English Annual Practice
that the Court of Appeal will
seldom interfere with the
decision of the Judge at
chambers on such an application,
unless some question of
principle is involved; or" where
serious injustice would result
from not interfering"
(Golding v. Wharton
0-
Co,
(1876), 1 g.B.D. 374, and other
cases cited).
Inasmuch as the basis of the
cause of action in this case is
that the passing of Ordinance
No.3 of 1935 was
ultra vires
the powers of the Legislative
Council of this colony and
repugnant to the law of England
and therefore of no effect, it
is obvious that the learned
Judge was quite right in making
the order he did as to paragraph
8 of the statement of claim,
which was in effect an order
that the plaintiff should give
particulars as to why the
ordinance was repugnant to the
law of England and why he
alleges that the passing thereof
was
ultra vires
the Legislative Council.
The real issue raised by the
statement of claim is whether
the passing of Ordinance No.3 of
1935 was within the power of the
Legislative Council of this
colony. It is quite clear from
the decisions referred to in
Proposition 189 of the
Doctrine of Ultra Vires,
by J. A. Street, that, in
deciding that question, the
Court can only consider the
validity of the action of the
Legislative Council and not
whether the ordinance is
necessary for the peace, order,
and good government of the
colony.
In another note to Order 19,
Rule 27, of the
Annual Practice
it is stated: "It is no part of
defendant's duty to perfonn the
plaintiff's pleading; but if
wholly immaterial matter be set
out in such a way that the
applicant must plead it, and so
raise irrelevant issues which
may involve expense, trouble and
delay, then the irrelevant
matter will be struck out, as it
will prejudice the fair trial of
the actbn. (See
Rassam v. Budge
(1893), g.B. 571;
Liardet v. Hammond Electric
Light Co.,
31 W.R. 710; and
Madge v. Penge U.D.C.,
85 L.J. Ch. 814 (C.A.), 32
Times Rep,
354, 417; but see
London, Mayor, etc., of v.
Horner
(1914), 111 L.T. 512 (C.A.)). So
a mass of evidence pleaded
unnecessarily may be struck out
(Davy v. Garret, 7 D.C.
473)
By Order 26, Rule 1, of the
General Procedure Rules, wide
powers are given to the Court to
amend pleadings for the purpose
of eliminating all statements
which may tend to prejudice,
embarrass, or delay the fair
trial of a suit and for the
purpose of determining in the
existing suit the real questions
in controversy between the
parties.
As we regard all the matter
struck out as irrelevant to the
real question in controversy
between the parties we are not
prepared to set aside or vary
the Judge's order.
The appeal is dismissed with
costs assessed at £15 15s.
.
