Judgment — Counterclaim —
Adjudication — Omission to
pronounce upon counterclaim
renders judgment inconclusive,
not void — Appellate court
entitled to pronounce on
counterclaim on evidence on
record.
The plaintiff instituted an
action in the circuit court
against the defendant for
damages for assault. The
defendant denied the claim and
counterclaimed for damages for
insult and assault. The trial
judge gave judgment in favour of
the plaintiff but said nothing
about the counterclaim. The
defendant appealed against the
judgment on the ground that the
omission of the trial court to
pronounce on the counterclaim
rendered the entire trial
inconclusive.
Held:
the claim and counterclaim were
two separate claims and the
judge was under a duty to
pronounce on them. A judgment
for the plaintiff might imply a
rejection of the counterclaim
but it is also possible for both
the claim and counterclaim to
succeed or the counterclaim
succeeds while the claim fails.
The failure therefore to
pronounce on either claim would
render the judgment regarding
that claim inconclusive. The
omission in this case did not
render the entire trial null and
void nor did it render the
pronouncement on the other claim
inconclusive. The appellate
court had a duty to examine the
record and pronounce on the
counterclaim. The appeal would
be dismissed, as the evidence in
support of the counterclaim was
unsatisfactory.
APPEAL from the circuit court to
the Court of Appeal.
Kwesi Dapaa
(for Adusei) for the
appellant.
Opoku-Boateng
for the respondent.
AMPIAH JA.
On 4 March 1988 the plaintiff
took action in the Circuit
Court, Kumasi, against the
defendant for ¢1,000,000 damages
for unlawful assault. The
defendant denied the plaintiff’s
claim and counterclaimed for
¢2,000,000 damages for insult
and assault. On 31 January 1990,
the learned trial judge gave
judgment in favour of the
plaintiff on his claim. He
however, did not say anything
about the defendant’s
counterclaim. The defendant has
appealed against the judgment on
the ground that the judgment was
against the weight of evidence.
On 27 March 1992 however, the
defendant filed two additional
grounds of appeal. These, by
leave of the court, were
admitted for argument. One of
the grounds of appeal is that
the trial judge failed to give
judgment on the counterclaim
thus rendering the whole trial
inconclusive.
The record shows without doubt
that the trial judge never
pronounced on the counterclaim
of the defendant. The legal
position is that the
counterclaim and the claim are
two separate claims and the
judge is under a duty to
pronounce on both. Like the
plaintiff, the defendant is
required to establish his
counterclaim on the
preponderance of evidence. It is
true that sometimes, judgment
for the plaintiff on his claim
makes the non-acceptance of the
defendant’s claim obvious but it
is also true that both parties
may win on their respective
claims or that the plaintiff may
lose while the defendant wins.
The failure therefore to
pronounce on any of the claims
(ie the counterclaim and the
claim) makes the judgment
inconclusive in so far as that
particular claim is concerned.
In this regard, the learned
trial judge failed to perform
his duty.
Such failure however, does not
make the whole trial null and
void and for that matter does
not render the pronouncement on
the other claim inconclusive.
This court has a duty to look at
the evidence on record and do
what the trial court ought to
have done. In other words to
pronounce on the other claim on
which the trial court failed to
give judgment, upon the evidence
on record.
The evidence in support of the
defendant’s counterclaim I find
to be most unsatisfactory. The
evidence of the defendant’s two
witnesses did not support him.
The insult and assault the
defendant uttered were at the
queenmother’s house where the
plaintiff lives. DW2 was
emphatic that she did not see
the plaintiff during the
incident. DW1 spoke of what
happened when the plaintiff sent
the meat to the defendant’s
house and insulted him. The
defendant spoke of the incident
at the queenmother’s house where
the plaintiff and others
allegedly assaulted him. I am
satisfied that with such
evidence the defendant was bound
to fail on his counterclaim. I
would accordingly dismiss the
defendant’s counterclaim.
The plaintiff was arraigned
before the District Court Grade
I, Kumasi, but was discharged on
the offence of acts tending to
cause a breach of the peace.
On the claim of the plaintiff,
the trial judge accepted the
evidence of the plaintiff and
his witnesses. All the witnesses
supported the assault of the
plaintiff by the defendant. The
plaintiff became unconscious and
was sent to the hospital where
he was admitted for 4 days. The
medical report, which was
tendered in evidence by the
plaintiff, showed the extent of
injury caused to the plaintiff.
The plaintiff gave further
evidence of how he had to
procure drugs for his treatment;
he was still buying drugs at the
time of hearing.
The plaintiff did not tender any
receipt and was not very sure of
how much he had actually
expended. His claim was however
for general and not special
damages. The damages were
therefore at large and it was
for the trial judge to assess
them. Looking at the medical
report and the injuries suffered
and the age and position of the
plaintiff, I think the damages
awarded were reasonable.
I would dismiss the appeal.
KPEGAH JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner |
