Appeal Court. 18th  September, 1937.

Pleadings-Demurrer-Case can only be struck out on admitted facts- Appeal from Effect of joinder of issue-Rules of Supreme Court of England only  applicable when local law is silent.  

 Pleadings had been ordered, and after plaintiffs had filed a reply to the statement of defence, and joined issue with same, defendant applied to have suit dismissed on the ground that plain­tiffs' pleadings disclosed no legal cause of action. Suit was dismissed accordingly without evidence being called.

 Held: on appeal, that joinder of issue had effect of putting material facts in issue, and that case must proceed.

It was also held that procedure by way of demurrer under Order 19 of Schedule 3 of the Courts Ordinance was available to a defen­dant, even in cases where pleadings had been ordered, provided the step was taken before statement of defence was filed. Order 32, Rule 2 of Schedule 3 of the Courts Ordinance provided an alternative where defendant was too late to demur under Order 19 of Schedule 3 of the Courts Ordinance. Unnecessary therefore to resort to the rules of the Supreme Court of England, and that trial Judge was wrong in doing so.

P. A. Renner (with him J. H. Coussey and W. E. G. Sekyi) for Plaintiffs-Appellants.

A. J. Ainley for Defendant-Respondent.

The following joint judgment was delivered :­STROTHER-STEWART, DOORL Y AND BRUCE, JJ.

This is an appeal from a judgment of Yates, J., dated 16th November, 1936, whereby on a motion by the defendant he dismissed the suit of the plaintiffs with costs and before trial on the grounds that the plaintiffs' pleadings did not disclose any legal right or interest in the subject-matter of the suit which had been infringed.

There has been considerable argument before us as to whether the procedure adopted came within the scope of Order 19 of the 3rd Schedule to the rules made under the Courts Ordinance or under Order 25 of the R.S.C. of England and as to whether the R.S.C. of England can be applied in any circumstances in the Courts of the Colony.

We do not, however, find it necessary to decide on these matters save in so far as we hold that, seeing that the plaintiffs, having obtained permission, have filed a reply to the statement of defence and have therein used the expression" join issue" (neither pleading nor expression coming within the ambit of Order 25 of our rules) it does not lie in their mouths to contend that the RS.C. of England, of which they have made use, may not apply in the Courts of the Colony.

In our opinion this appeal can be decided by considering the facts which the learned trial Judge held in his judgment to be admitted on the pleadings and on which he based his conclusion that the plain­tiffs' pleadings disclosed no legal right of the plaintiffs which had been infringed.

These facts are two, viz. :-

(1) That no objection to the proposed undertaking of the licensees was made within two months as is required by law,

and (2) That at that time the plaintiff company was not incorporated.

As to the first, in the plaintiffs' amended statement of claim in paragraphs 5 and 7, it is averred that the plaintiffs lodged objection on or about 16th February, 1934 (within two months of the publication of the Gazette Notice of the licensees' application, viz. 23rd Decem­ber, 1933).

In paragraph 2 of the plaintiffs' reply to the statement of de­fence, it was averred that objection to the grant of the licence was made by persons not being the plaintiffs, but by order of the Court dated 23rd December, 1935, on application by the defendant, this paragraph was struck out. In plaintiffs' reply he had joined issue with the defendant on his statement of defence. This expression does not occur in the Rules under the Courts Ordinance, but it is a well-known expression in the RS.C. of England. We consider there­fore that its interpretation and effect are to be ascertained by a con­sideration of these rules. Now by Order 19, Rule (18) of the RS.C. of England, it is provided that" the plaintiff, by his reply, may join issue upon the defence and such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any fact which the party may be willing to admit and shall then operate as a denial of the facts not so admitted. "

Following the provisions of this rule, we find that the plaintiff~ had averred that they gave notice of objection, this was denied by the defendant in his defence and was not excepted by the plaintiffs ill their reply whereby they joined issue upon the defence.

From these considerations it appears that the question whether the plaintiffs had or had not made objection to the grant of the licence to the licensees was not admitted in the pleadings.

(2) For the same reasons we find that the date of the incorpor­ation of the plaintiff company was not admitted in the pleadings.

Now under whatever law the proceedings before the learned trial Judge had, there can be no doubt that such a judgment can only be given on admitted facts.

For these reasons we hold that the judgment of the learned Judge was wrong, and we allow this appeal with costs here (assessed at £50 8s. 6d.) and in the Court below on the issue here decided. The case must be remitted to the Divisional Court with an instruction that the case proceed.

Judgment having been read, Mr. Ainley objects that he under­stood that the Court would only decide whether the Judge had juris­diction by way of demurrer in the circumstances of the case, and that the Court had not decided that point. It had gone on to decide an entirely different point.

The Court agreed to decide the question of jurisdiction, and then delivered the following judgment :-

We agree that there has been some misunderstanding as to the reason why the Court adjourned and, in deference to Mr. Ainley's submission, we propose to deliver judgment on the question whether the learned trial Judge adopted the proper procedure in deciding this matter by way of demurrer at the stage of the proceedings at which he did.

In the preliminary ruling given by the Judge on 6th October, 1936, he states: "This is a motion brought by the defendant under Order 19, Rule 1, Schedule 3." In his final judgment the learned Judge said: "This is a motion brought by the defendants under Order 25, Rules 2 and 5 of the Annual Practice." This amendment by the learned Judge follows the shifting of ground by learned Counsel for the defendant in the course of the argument.

We are unable to agree with the learned Judge that Order 19 of the Rules under the Courts Ordinance is inapplicable to cases in which pleadings are ordered. We see no reason why a defendant, who has been ordered to file a defence within a certain time of receipt of the statement of claim, should not immediately move the Court under Order 19 to have the suit dismissed. If he failed in his applica­tion, the Court would then order the defendant to. answer plaintiffs' allegations of fact, i.e. it would repeat its original order on the defendant.

But Order 19 only applies before a statement of defence has been filed, otherwise it is meaningless. Now we do not say that the Rules of the Supreme Court of England never apply or may never be applied in the courts in this country ; but they should apply only when our law is silent. By our Order 19 provision is made and further by Order 32, Rule 2, the Court is empowered at the trial to direct a single issue of fact or law to be tried before any other issues. That being so, it seems to us that a defendant, having failed to demur under Order 19 or being out of time to make such application, may at the trial raise the question whether the plaintiff's statement of claim discloses any cause of action or interest in the plaintiffs to sustain the action.