HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

LAMPTEY, JA:

On 12th August 1993, Solicitors acting for Val Cap Marketing took out a writ of summons in the High Court, Accra against the Owners of M/V Vinta and claimed against the owners the reliefs endorsed on the writ of summons. The address Val Cap provided for service of process on the Owners was stated as "Port of Tema Ghana". At the time of filing the writ of summons the solicitors for Val Cap filed a motion ex-parte supported by affidavit by which Val Cap sought an order for a warrant for the arrest of the vessel M/V Vinta. By their action Val Cap claimed as follows:—

"The sum of US. $70,543.82 being principal and interest as at 10th August 1993 being the cost of 300.02 metric tonnes of intermediate fuel oil sold and delivered to the defendants"

The writ of summons and the statement of claim were served on one Captain Praveen Malham on 13th September 1993 at Tema Harbour.  Solicitors acting for the Owners filed a statement of defence by which the Owners challenged and disputed the capacity of Val Cap to sue them.  In the statement of defence the owners pleaded that they had not entered into any contract with Val Cap:

"for the sale and delivery of fuel oil and further that there was no such contract between the parties and that the action was statute-barred."

In the circumstances the solicitors of the Owners filed a motion on notice pursuant to Q. 25 rr 2, 3 & 4 and also invoked the inherent jurisdiction of the court to dismiss the action of Val Cap. The application was supported by an affidavit to which was annexed a "book" running into 284 pages and labelled "affidavit of Robert S. Delange ".  As was to be expected, Val Cap filed an affidavit in opposition against the dismissal of its action. The trial court heard the application on its merits.   It dismissed the application of the Owners and entered judgment for Val Cap for the amount endorsed on the writ of summons. The Owners were aggrieved by the judgment and appealed to this court.

I must confess that this appeal caused me great deal of anxiety hence we called upon counsel for Val Cap to argue as a preliminary issue of law the procedure followed by the trial court, in particular, whether or not the trial judge was right in law when he entered judgment for Val Cap at that stage of the proceedings. In his written statement of case on the above issue, counsel for Val Cap questioned the authority of this court to place such a burden and obligation on him since he was counsel for the respondent, Val Cap. In answer to the query of counsel for Val Cap, my short answer is that an appeal is a re-hearing of the case on appeal on the merits. I further refer to and rely on Rule 32 (1) & (2) of C.I. 19.  This rule provides:—

(1) "2 The powers of the Court may be exercised not withstanding that the appellant may have asked that part only of a decision be reversed . . . And may also be exercised in favour of all or any of the respondents or parties although they have not appealed from or complained of the decision"

In my opinion, the Rule gives to the appellate court power, suo moto, to invite counsel's opinion on the appropriate law and rules of court, if and when the circumstances of the particular case demanded that the appellate court intervened in the proceedings.   Thus in the case of In Re Cole (Dec) Codjoe v. Cole (1977) 2 GLR 305 at 308, Archer JA. (as he then was) in the course of his judgment applied that rule as the following passage

demonstrated and illustrated:—

" When the hearing of the appeal commenced, we cut short the argument relied upon by the appellants' learned counsel and we invited learned counsel for the respondent to address us on the correctness of the judgment of the court below in view of the over- whelming evidence in favour of the validity of the will." My short answer to the query of counsel for Val Cap is that this court has the power it exercised. We invited counsel for Val Cap to satisfy us that the application to dismiss the action of Val Cap was justifiable and supportable in law, that is to say according to the rules of court an application may be competently dealt with:— (1) pursuant to O. 25 rr 2, 3 & 4, and (2) in the exercise of the inherent jurisdiction of the High Court.  If the application was dismissed as incompetent, was the plaintiff, Val Cap entitled to judgment without more.

On the first issue raised by the court, counsel for Val Cap submitted that if the application was to be considered pursuant to O. 25 rr 2, 3 & 4 then it was wrong to attach or annex affidavit evidence to the motion paper.  He conceded further that the trial court was not permitted to consider and examine affidavit evidence in determining the application.   I entirely agree with the statement of the law by counsel for Val Cap. What this means is that the trial judge must consider and determine the application without relying on or referring to and using the affidavits annexed to the application if he exercised the powers pursuant to O. 25 rr 2, 3 & 4. The trial judge did not purport to exercise the powers granted him under O 25 rr 2,3, and 4. The trial judge considered and determined the application in exercise of the inherent jurisdiction of the court, counsel for Val Cap contended that the trial judge was right in the circumstances of this case to do so to enable him to dispose of the case and give final judgment without more. He cited the case of Bank of West Africa v Holbrock (1966) G.L.R. 164 and the English case of Remmington v. Scoles (1995-9) All E R 117.   See also Appenteng & ors v. Bank of West Africa Ltd. & ors. (1961) G.L.R. 196.

I must now consider the matters before the trial court in the light of what the rules of court and the law permitted and prescribed. First O. 25 rr 2 & 3. These provide:—

"2. Any party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial . . . on application by either party.   The same may be set down for hearing.

3. If in the opinion of the judge the decision on such a point of law substantially disposes of the whole action  . . . . . . . . . . . . . . . . the judge may thereupon dismiss the action . . . . . . . . . . . . . . . ”

It is plain and clear that an application based on O. 25 rr 2 & 3 must be founded only on the pleadings before the court. Further that a point of law must be raised on the pleadings for consideration and determination by the court. It must be pointed out that affidavit or other evidence is out-lawed by the rule.   I must draw attention to the pleadings before the court at the date of filing of the motion to dismiss the instant action. At that date, the pleadings before the court were:—

(1) "the writ of summons, (2) the statement of claim and (3) the statement of defence. Val Cap had not filed (1) a reply and (2) summons for directions."

What was the point of law that the Owners raised? One of the issues of law raised was stated at head (2) as follows:

"2. That defendants have not entered into any contract with plaintiffs” In the statement of defence at paragraph 9 the Owners raised this issue of law, namely, whether or not there was a contract between the parties before the court. In his affidavit in opposition to the application one Gabriel Amedume Atuglinyi did not advert to the serious issue of law raised by the owners. His affidavit consisted of 3 paragraphs: These were:—

“(1)  . . . . . . . . . . . . . . . . . . . . . . . . that I have personal knowledge of facts in this matter       . . . . .. . . . . . . . . . . . . . . . . . . . . . I have been authorized to depose to this affidavit.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Counsel for the plaintiffs will seek leave . . . . . . . . . . to refer to the pleadings and to produce the relevant applicable law.

(3) Wherefore I swear to this affidavit". The simple issue raised for determination by the trial court as disclosed by the application of the Owners was whether or not there was in existence at the date of filing the writ of summons a contract between Val Cap (1) and the Owners (2) for the supply and delivery of oil amounting to US $70.453.02 entered into on 28th April 1989" The Owners denied there was such a contract.   I must draw attention to the record which showed that at the date of the hearing of the motion to dismiss the action of Val Cap, that Company, by it Solicitors had filed a Reply to the statement of defence.  A careful and critical examination of paragraphs 2, 3, & 4 shows that a contract was not entered into between Val Cap and the Owners on 28th April 1989. This averment was contrary to what was pleaded in the statement of claim. Since Val Cap had sued on a non-existing contract and had not sought leave to amend its statement of claim to reflect the contract dated 28th April 1989 disclosed in the Reply of Val Cap to the statement of defense, the trial judge's plain and simple duty was to uphold the objection in limine and dismiss the action of Val Cap by which it sought reliefs under a non-existing contract.   He failed to do this.   He gravely erred in law in dismissing the application of the Owners by his Ruling.

There can be no doubt that by paragraphs 2, 3 & 4 of the Reply to the statement of defence, Val Cap substantially changed the case and claim it put forward in its writ of summons and statement of claim before the court. By the Reply to the statement of defense Val Cap put forward a new case against the Owners a case founded on "an assignment of a debt to them".  I reproduce the pleadings at paragraphs 2, 3, & 4 of the Reply:—

“2 . . . . . . . . . . . . . . . . the plaintiffs say that by a Deed of Assignment dated the 3rd day of June 1991 Val Cap assigned the debt which is the subject matter of this suit to Best Oil Sales and Services Inc.

3. The plaintiffs under the applicable law an assignee may sue on the chose in action in the name of his assignor. . . . . . . . . . . . . . . .

4. That the named plaintiffs being the assignor is only a nominal party . . . . . . . . . . .”   In my view these are matters which the trial judge was not permitted to look at since the same did not form part of the statement of claim.  If the trial judge looked at and examined them together with the pleadings to which I have made reference he was clearly and plainly wrong in law in dismissing the application by the Owners.  He was  wrong in law because by reason of the matters averred in the Reply to the statement of defense, Val Cap had put forward a new case different from the claim disclosed by their statement of claim and the relief endorsed on the writ of summons.   Indeed the Reply to the statement of defence raised a number of triable issues, which called for a hearing of the case on the merits.   The summary dismissal of the application by the Owners was unwarranted and not supportable in law.   Some of the matters raised on the pleadings may be stated here:—

(1)  who are parties to the assignment

(2) is the debt the subject matter of the claim statute barred; and

(3) which contract is the subject matter of this suit? I have drawn attention to some only of the matters raised on the pleadings to show and demonstrate that the trial judge misdirected himself on the issue of law raised on the motion by the Owners seeking an order to dismiss the action.

Was the trial judge right in exercising his powers under the inherent jurisdiction to dismiss the application by the Owners? The trial judge was entitled to look at and examine affidavit evidence to enable him determine the application when exercising the inherent jurisdiction of the court.  I must point out that in performing this function and discharging this duty the trial judge was enjoined to restrict himself to evidence which prove and establish the pleadings before him; in other words, the affidavit evidence must

amplify and provide further and better particulars of what each party had pleaded.   The reason for this rule is that a party is bound by their pleadings.  This means that affidavit evidence, which is inconsistent, extraneous and unconnected with the pleadings must be rejected and ignored by the trial judge. This is illustrated by the cases cited to us by counsel for Val Cap, namely, the English case of Burrows v. Rhodes (1895-9) All E R 117. At page 120 Grantham J. stated as follows:—

" In this case we are asked to determine whether on the statement of claim as presented to us . . . . . . . . . . . . . . . . . . . . any cause of action has been shown for which an action is maintainable according to English law. For the purposes of our judgment, this being a demurrer by the defendants all the facts alleged in the claim must be taken to be true and admitted by the defendants".  The principle was applied by  Ollennu J. (as he then was) in the case of Appenteng & ors v. Bank of West Africa Ltd. & ors (1961) GLR 196 at 199.   As already pointed out elsewhere in this judgment, the claim of Val Cap was founded on a contract dated 28th April 1989 between Val Cap (1) and the Owners (2), The Owners denied that there was such a contract between the parties.   The law enjoined Val Cap to provide affidavit evidence of the contract it had pleaded to enable the trial court to exercise its inherent jurisdiction.  Val Cap did not produce particulars of the contract it pleaded.  Val Cap did not in its affidavit explain its inability to produce the "contract document" to the trial court. Val Cap did not offer any evidence to satisfy the trial court that on 28th April 1989 it entered into a contract with the Owners.  In these circumstances, the application to dismiss the action of Val Cap ought to have succeeded. With respect to the trial judge, he misdirected himself on the real issue in  controversy raised in the application before him. The Owners had moved the court under head (2) as follows:—

(2) "That the defendants have not entered into any contract with the plaintiffs." There was no evidence from Val Cap in answer to this statement of fact. The judge delivered himself as follows:—

" It is not in dispute that the vessel M/V Vinta which was not resident in Texas after being supplied with fuel left the jurisdiction of the state of Texas and never returned.”   What was the evidence before the trial court, which led to this finding of fact, namely, that it was at the request of the Owners that fuel was supplied to their vessel?  What was the evidence that Val Cap had supplied fuel to the Owners?  How did the trial judge inform himself that the vessel left Texas?  I have drawn attention to some only of the above matters in order to demonstrate and establish that the claim of Val Cap which was founded on the contract it pleaded in the statement of claim, even if maintainable called for a hearing on the merits and not summarily disposed of in exercise of the inherent jurisdiction of the court.  The trial judge purported to rely on untested pieces of affidavit evidence and came to the conclusion he did.  In the circumstances of this case, the trial judge erred in law in purporting to and exercising the inherent jurisdiction of the court.

To continue with the mistakes of the trial judge, I reproduce the passage following:—

“Even though there is no dispute that the plaintiffs supplied fuel to the vessel M/V Vinta the defendants have contended that they have not entered into a contractual relationship with the plaintiffs.  What defendants imply is that in supplying fuel to the vessel the plaintiffs dealt with the charterers and not themselves. That brings us to the consideration of the issue of maritime lien.”

I am amazed that the trial judge raised the issue of maritime lien, suo moto, in considering a very simple application before him. On the face of the pleadings, the issue of maritime lien had not been raised by the parties because none was pleaded. What was raised was the issue whether or not there was a contract between the parties? The trial judge erred in the view he took of the application before him.

I now deal with head (3) on the motion paper namely:—

“3. That the charter or certificate or authority of the plaintiffs having been forfeited by the Government of the State of Texas the plaintiffs lack capacity to sue as the plaintiffs are not entitled to operate”.

I have carefully read the pleadings and I have not been able to find any averment that the plaintiffs purported to sue pursuant to a charter or certificate or authority.  The trial judge should have struck out head (3) as not warranted by the pleadings before the court. The simple reason in support of this conclusion is that Val Cap did not purport to sue in a capacity other that disclosed on the pleadings.  At paragraph 1 of the statement of claim appears the following:—

“1. At all material time the plaintiffs are marine bunkers doing business in the United State of America" This averment is capable of proof by evidence. The Owners denied paragraph 1 of the statement of claim by their paragraph 1 of the statement of defence. The denial was explained in paragraphs 2, 4 & 8 of the statement of defence.  The Owners in law thus put Val Cap to strict proof of the truth of the pleading by evidence.   The court can only determine and rule on the issue raised after it had considered and examining affidavit evidence from Val Cap in proof of the pleading at paragraph 1 of the statement of claim.  The Ruling of the trial judge was noticeably silent on this issue. In my opinion, the failure of the trial judge to make a finding on that issue under head (3) on the notice of motion is fatal to the decision he reached on the application.   The trial judge was in law enjoined to rule whether or not the Owners had made a case under head (3) by affidavit evidence. The decision dismissing the application cannot be supported in law for thus further reason.

Perhaps another example to show and prove that the trial judge erred in law in exercising the inherent jurisdiction of the court will be found from the passage following:—

“In the instant case the defendants have not demonstrated to the court that the  presumption that arose when the plaintiffs supplied fuel to the vessel M/V Vinta has been successfully rebutted for the simple reason that the defendants have not been able to establish to the satisfaction of the court that the plaintiffs looked solely to the personal credit of the charterers . . . . ” With respect to the trial judge, if the above matters were raised on the face of the pleadings, which is not the case in this appeal, it was clear that the application before the court was not eminently suitable to be fought on affidavit evidence.  The court can only feel satisfied, if the court permitted the matters raised to be proved and established in a hearing and a trial on the merits.  The exercise of its inherent jurisdiction was unwarranted and cannot be supported in law.  The trial judge was enjoined to examine and consider the affidavit evidence, which sought to prove and establish the contract pleaded by Val Cap in the statement of claim.   Affidavit evidence must prove the contract pleaded strictly.   The trial judge did not rule on this issue.  His failure to do so was fatal.

The appeal raised another disquieting and unwarranted admission of inadmissible evidence.  I refer specifically to the document running into 285 pages and annexed and labelled “affidavit of Robert S. Delange.”  This document does not comply with the rule on affidavit evidence.  It will be otiose in this judgment to state the relevant rules on affidavit evidence.  It is more profitable and helpful if reproduce a few only of the contents of the offending document:—

“I have had the opportunity to review the opinion of the High Court of Justice in Accra of 11th July 1994 relating to the assertion of a maritime lien against the M/V Vinta on or about the 11th August 1993”.  The declarant continued on his affidavit to use expressions such as:— “it is my understanding” “I have been asked by the owners”? “it is evidence from a reading . . . . . . . . . . . . . . . . . . . . . .of the High Court Accra.” in the said affidavit file by the Owners.   The trial judge gravely erred in law in accepting the offending “affidavit”  The trial judge . . . . . . . . . . . . . . .  . . . . . . of Delange as an affidavit properly so called.  The trial judge fell into serious error when he referred to and relied on the “affidavit” of Delange as admissible affidavit evidence. That the trial judge did rely on the offending and inadmissible evidence is illustrated by a number of passages following from his Ruling.  A few sample quotations may suffice to illustrate the complaint I have made as follows:—

“The affidavit of Delange attached to defendant’s supplementary affidavit . . . . . . . . refers to Shoe baum Admiralty and Maritime Law Chapter 8 which records . . . . . . . . .. at pages 252 and 253.”

When it is pointed out that the simple issue for determination by the trial judge was whether or not there was in existence a contract between Val Cap (1) and the Owner (2) dated 28th April 1989, the unwarranted admission of the affidavit of Delange is made plain and clear.  To further illustrate my observation that the trial judge misdirected himself in admitting and using the affidavit of Delange.  I reproduce the passage following from the Ruling appealed against.  The trial judge wrote this:—

“Another attachment to the affidavit of Delange is 793 Federal Report 2nd Series whose page 602 records the following on maritime lien . . . . . . . . . .” and conclude thus:—

“to meet the burden, evidence must be provided that would permit the inference that the supplier purposefully intended to forego the lien.”

It may be asked at this stage why the trial judge did not realise that the issues raised were triable issues and further, that affidavit evidence was eminently unsuitable in assisting him to exercise the inherent jurisdiction of the court.  If find further support for my opinion that the trial judge erred in law when he exercised his inherent jurisdiction from the passage following in the Ruling as follows:—

“The defendants have contended that the contract was between the plaintiffs and the charterers.   For their contention they relied on Exh. B. . . . . . . ”

The first observation I must make is that the matters stated by the trial judge are not supported by the statement of defence, that is, the pleadings on which the Court was moved.  The other observation is that if what the trial judge stated represented the true state of the pleadings, the rules of court enjoined the parties to prove their respective claims in a trial on the merits.  The issue raised namely, who are or should be the proper parties in the action is not one, which the trial court could and should determine in the exercise of its inherent jurisdiction.

Again the trial judge, in the course of his Ruling, wrote as follows:—

“Another issue for determination relates to the capacity of the plaintiffs to sue.”  This issue is not one, which the court can competently resolve by the exercise of its inherent jurisdiction.  The trial judge misdirected himself on the real issue in controversy between the parties; the real issue was whether or not there was in existence the contract pleaded by Val Cap in its statement of claim.  The answer to this very simple issue was provided in the Reply filed by Val Cap in answer to the statement of defence.  Val Cap unequivocally admitted that there had never been in existence the contract it had pleaded in the statement of claim.  The trial judge was enjoined in the circumstances to grant and uphold the Owners application and dismiss the action of Val Cap which action was founded and based on a non-existing contract. The trial judge failed to discharge this simple duty.   He was clearly and plainly in error by his Ruling.

Counsel for the Owners argued ground (4) on the notice of additional grounds of appeal in his statement of case. That ground reads:—

"4 the learned trial judge erred in proceeding on an incurably defective writ of summons which rendered the entire proceedings a nullity". 

In arguing this ground of appeal he reproduced paragraph 7 of an affidavit sworn to by one Norbert Kwasivi Kudjawu thus:—

" 7. That I am informed and verily believe that the defendant's vessel M/V Vinta will dock at the Port of Tema on or about the 16th August 1993 within the jurisdiction of this Court." He contended that on 12th August 1993 when the writ was filed and sealed the vessel was outside the jurisdiction. He contended that the affidavit evidence showed that the Owners carried on business outside the jurisdiction. He submitted in the circumstances that O.2 r4 enjoined Val Cap to seek and obtain leave to serve the writ of summons on the Owners and or the vessel known to reside outside the jurisdiction on 12th August 1993 when the summons was sealed.  He cited the High Court case of Lokko v. Lokko (1989—1990) 1 GLR 96.   In reply, counsel for Val Cap submitted that the procedure followed was permissible under O2 r6 and therefore O2 r4 did not apply in the instant case. He submitted that where an action is commenced against a vessel the vessel is served where it is found. On this he relied on O9 p14. From the evidence on record there is no doubt that the writ of summons was filed and sealed on 12th August 1993. On the writ the address for service on the Owners was stated as "Port of Tema Ghana."  This means and can only mean that on the 12th August 1993 the defendant "Owners of M/V Vinta" would be found at "the Port of Tema Ghana" for service on them of the writ. In admiralty action, the mode of service is provided at O9 r14 as follows:—

" 14. In Admiralty action the service of a writ of summons or warrant against ship freight or cargo on board is to be effected by nailing or affixing the original writ or warrant for a short time on the main mast, or on the single mast of the vessel and on taking off the process leaving a true copy of it nailed or fixed in its place".

The rule does not admit of any difficulty in interpretation and application.  To effect service on the vessel or the owners the vessel must be physically present in the jurisdiction to enable the serving officer to affix the original writ for a short time on the mast and subsequently remove this and replace it with a true and certified copy. Proof of due service pursuant to O9 r14 is provided by O2 r6. Pursuant to O2, r16 the serving bailiff must complete Form 6 in Appendix A Part I. At page 2 of the record of appeal appears the endorsement in proof of service by Bailiff S.A. Tettey. The endorsement did not conform with the mandatory provision stated in the rules to which I have made reference. S.A. Tettey served the writ on one captain Praveen Malham on 6th September 1993 at Tema. He proved service on 13th September 1993. The bailiff was enjoined to prove service within 3 days. See O9 r17 and r23.  In this case S.A. Tettey proved service after 3 days.  S.A. Tettey did not affix the writ on the mast of M/V Vinta. The more serious complaint was the physical and actual location and position of M/V Vinta on 12th August 1993.  The affidavit sworn to by Solicitor for Val Cap, Mr. Norbert Kudjawu clearly and unequivocally showed that the vessel M/V Vinta was not present and had not docked at "Tema Port Ghana" on 12th August 1993.   Since the "Owner" were resident outside the jurisdiction and furthermore since the vessel M/N Vinta was not within the jurisdiction on 12th August 1993, O2 r4 enjoined Val Cap to seek and obtain leave of the Court to enable service on the Owners. That rule provides

"4. No writ of summons for service or of which notice is to be given out of the jurisdiction shall be issued without the leave of the Court or a Judge".  

In the instant appeal the affidavit evidence was that on the 12th August 1993 neither the Owners of the vessel nor the vessel M/N Vinta were resident at Tema nor would be found at Tema. The address stated for service was grossly misleading and not factually correct. Solicitor for Val Cap admitted that the vessel M/V Vinta was on the high seas and out of the jurisdiction on the date the writ was sealed.  The writ was therefore incompetent. The proceedings were a nullity.  I allow the appeal.  I set aside the Ruling of the High Court Accra.  I do not think any useful purpose would be served if I deal with the entry of judgment in favour of the Val Cap except to state that the trial judge gravely erred in law in exercising his inherent jurisdiction in the instant case.  I set aside the judgement entered in favour of Val Cap.

G. L. LAMPTEY

JUSTICE OF APPEAL

WOOD. JA.

I do agree that the appeal must succeed in part. The decision giving judgment to plaintiff ought to be set aside and case remitted to trial for a hearing on the merits for, I think the trial judge erred in not dismissing the claim.  Although no reply and summons for direction had been filed at the date of the application which resulted in this appeal, that is on the 26th of October 1998; it is plain from the pleadings that serious triable issues, both of fact and law had been raised.  It is also equally pertinent to note that those legal issues could not have been resolved without first determining those factual issues connected thereto.  Happily, three of the issues that arose from the pleadings have actually been clearly identified in the said motion.   These are

1.   "Whether or not the contract upon which the plaintiffs are suing is statute barred.

2.    Whether or not the defendants have entered into any contract with the plaintiff.

3. Whether or not the plaintiffs have capacity to sue."

Indeed, a quick reference to the pleadings does put our minds in no doubt that at the date of the application, these and other issues raise, do necessarily demand that barring any valid reasons, this case ought to proceed to trial in the normal way.  In any case at the hearing of the application to 13th January 1994.

So for example, the plaintiff replied to the defence that "they have not entered into any contract with the plaintiffs" and pleaded so follows.

2. In answer to par 2. of the statement of defense, the plaintiffs say that by a deed of assignment dated 3rd June 1991 Val Cap Marketing lnc assigned the debt, which is the subject matter of this suit to best out sales and services lnc.

3. The plaintiff under the applicable law an assignee may sue on the close in action in the name of his assignor and the assignee may present the suit in any court including the appellate Tribunals and the writ need not show that the action is for the assignees consent need not be obtained.

4.  That the named plaintiff being the assignor in only a nominal party in whose name this action is instituted by the assignee; the party for whose benefit this action is instituted.

None of these matters raised herein have been said to be objectionable and there is plea that any of them ought to be struck out.  Properly they form a very essential part of the plaintiffs pleadings. What it does show when examined alongside the defense is that there are serious matters in contentions, which can only be resolved by way of evidence.

One such other important issue concerns the question of interest. Why do I say so? The plaintiffs pleaded by the paragraphs 6 and 7 as follows:

“The said sum has attracted interest at the rate of 1½% per month from the 29th April 1989 to the 10th August, totaling $37,203.90 so that as at the 10th August 1993 the defendants owe the plaintiffs the sum of % $70,453.82.

The plaintiffs say that the said sums shall continue to attract interest at the rate of 1½% per month within the date of final payment."

Now, apart from the defendants general traverse they flatly denied the facts averred by the paragraph 9 as follows:

" The defendants deny paragraphs 5, 6, and 7."

This means that whether interest is payable, the rate, together with the period within which the interest is to run are all disputed and evidence needed to be led in proof of same.

It does therefore come as a surprise that defendants proceeded with a motion to dismiss plaintiffs claim under order 25 rules, 2, 3 and 4 and the inherent jurisdiction of the court on grounds stated as follows:

1.  That the contract upon which the plaintiff are suing is statute barred.

2. That the defendants have not entered into contract with the plaintiffs.

3. That the charter or certificate of authority of the plaintiffs having been forfeited by the government of the state of Taxes the plaintiff lack capacity to sue as the plaintiffs are not entitled to operate".

The relevant rules upon which the application was brought reads:

25. "Any party shall be entitled to raise by his pleading any point of law and any points so raised shall be disposed of by the judge who tries the cause at or after the trial provided that by consent of the parties or by order of the Court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

3.   If in the opinion of the Court or Judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counter claim or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as may be just.

4. The court or a judge may order any pleading to be shown out on the ground that it discloses no reasonable cause of action or answer and in any such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious the court or judge may order the action to be slaked or dismissed or judgment to be entered accordingly as may be just"

The surprise springs from the fact that although plainly there are (1) disputed facts and (2) substantial and or obscure questions of law fit to be tried have been raised on either side of the divide, the defendants applied under the rules, 2,3 and 4 to have the plaintiff action dismissed in its entirety. All the authorities, both binding and highly persuasive, local and English, are agreed that firstly applications brought under rules 2 and 3 that is with respect points of law raised on the pleadings, ought not to be entertained where there are disputed facts.

Secondly in applications brought under either rules 2, 3, and 4 and as regards rule 4 on the ground that the pleadings do not disclose a reasonable cause of action no affidavit evidence may be admitted and examined.

On these two important statements of the law I would refer to the Annual Practice 1966 Edition.  In examining the scope of the rule that is order 25 r 3, the learned author states under the heading.  "Dismissal of action. Scope of rules Objection in point of law (O 25 r 3) subheaded."

"Application for Hearing before trial"

“The master as a rule will only make the order when he sees that the Objection raises a serious question of law, which if decided in favour of the party objecting, would dispose with any further trial, or at any rate with the trial of some substantial issue in the action. The order should not be made in respect of matters which by reason of the obscurity either of the facts or the law ought to be decided at the trial, only in respect of matters on which no further light would be thrown at the trial (per Roche J Isaacs and Son, Ltd. vs. Cook 1925 2 KB P 40) applied in Tarvena vs. Glamergan County Council 1941 57 TLR 243.

The order for argument before trial should not be made where there are facts in dispute and if made may be set aside at the hearing (Western SS Co vs. Amoral Sutherland and Co. 1914 3KB 55 Part vs. London Assurance Co. S.T.LR, 88, SCOH vs. Mercantile Accident Co Ibid 431).

Again, as already stated, the authorities are clear that in applications brought under rules, 2, 3, and 4 (were based on the ground that it discloses no reasonable cause of action), no evidence and consequently no affidavit whatsoever is admissible in proof or disproof of either the legal objection, point of law so raised or the allegation that the pleading discloses no reasonable cause of action or answer.  With respect to the latter in particular, that is application brought under rule 4 on the ground of want of reasonable cause of action, the following are the binding local authorities on the point:

1.  Ghana Muslims Representative Council vs. Salifu 1975 2 GLR CA at 261 per Azu Crabbe at 261.

2. Tackie vs. Baroudi 1977 1 GLR 36 at p. 43

3.   Harlley vs. Ejura Farms Ltd. 1977 2 GLR 1 79 at page 194 CA full Bench.

It thus follows that a court ought not to entertain an objection in point of law under order 25 rules 2, 3 and 4 (based on ground that no reasonable cause of action is disclosed), where there are disputed facts. Usually, an application to set down points of law raised on the pleadings is made at summons for directions.  And even so, where an order has previously been made to hear and dispose of any such legal point, at the hearing, the court has power to set the said order aside particularly when it becomes plainly obvious that there are disputed facts and further more importantly, where that the legal point cannot be disposed of without first settling these factual issues in dispute. I think that under such circumstances the court ought to relieve itself of the impossible burden of determining or disposing of a case on a point of law under rules 2 and 3 and so set the order aside.

It is to the learned trial judge’s credit that he rightly identified the matters in contention between the parties, both legal and factual, that ought to be tried under the application brought under the rules 2, 3 and 4 as well as the inherent jurisdiction of the court. The unfortunate thing however is that, he plainly went against the rules by:—

1.   not only determining disputed questions of fact but

2. using extrinsic evidence that is affidavit evidence and annexures to determine those facts.

Thus for example, on the question of statute bar the entire decision rested on the question of the applicable Texan laws, which is foreign law. The well-settled rule of law is that foreign law must be proved as a fact that by way of evidence adduced at a trial and not certainly by the means of affidavit (s).

Again, we take the fundamental issue of whether or not there existed a contractual relationship between the parties. The court unfortunately fell into error by using inadmissible evidence to resolve this substantial question of mixed law and fact.  As regard the resolution of the latter, the court repeatedly referred to the affidavits and annexures of De Lange dated 27th January 1994 and one H.N. Kuofie filed on 26th October, 1993 and made very serious and damaging findings of fact thereon. I think I should reproduce the pertinent portions of the ruling. The judge stated:—

"The defendants have contended that the contract was between the plaintiffs and the charterer.  For their contention, they rely on exhibit B which is attached to the affidavit of H.N. Kuofie filed on 26th October 1993.  On the exhibit there is a stamp inscription and the word charterer account at the column for the signature of the recipient of fuel supply. It is obvious from the defendants and the plaintiffs did not have a hand in the stamp on the document since they could not have had possession of the stamp charterer account and M/V Vinta came from the defendants and the plaintiffs did not a had in the stamp o the document since they could not have had possession of the stamp.  In the instant case the defendants have not demonstrated to the court that the presumption that arose when the plaintiffs supplied fuel to the vessel M/V Vinta has been successfully rebutted for the simple reason that the defendants have not been able to establish to the satisfaction of the court that the plaintiffs looked solely to the personal credit of the charterer.  It means therefore that the plaintiffs in the circumstances have done nothing to waive the maritime lien that arose as a matter of statutory law upon the furnishing of banker fuel to the vessel in the United States."

How can a party be condemned for having failed to rebut a presumption of the kind described by the learned trial judge, without the party being allowed to lead evidence on the substantial question of what he looked for in the charterers?

Similarly, on the equally important question of whether or not the plaintiffs have the capacity to institute the present proceedings, the court relied on the affidavit or Attuglingi in proof of Texan law.  And when in the course of answering this large question of capacity, the learned trial judge found it necessary to determine the related issue of whether or not failure:

"To notify the debtor of an assignment rendered the assignment ineffective”,  he turned to affidavits to resolve the issue. So he stated,

"The last submission of learned counsel for the defendants application is that failure to notify the debtor of the assignment rendered the assignment ineffective.   In answer to the position taken by the defendant counsel, the plaintiff filed an affidavit in opposition on 25th January, 1994 which has attached to it an affidavit of Hollis (so we have an affidavit within an affidavit) which explains the legal position in the state of Texas as follows".   However in the affidavit of De Lange attached to the defendants supplement affidavit filed on 27th January, 1994, he draws a distinction between transfer of ownership of debt and assignment of maritime lien and assents that under maritime law in order to assent, not merely debt, but a maritime lien, one must notify the vessel of the assignment.  Thus in the affidavit De Lange separates the right due to the assignee of a debt for which he would be entitled to maritime lien from the maritime lien itself."

It is plain that the procedure adopted by learned trial judge was not permitted under the rules.  Under the circumstances in which he found himself, caught in a web, where at the hearing he had to determine an issue of fact, of what he ought to have done was to relieve himself of the intolerable burden of determining these issues since no evidence had been led on them. It is in my view a grievous error on his part to have allowed himself to have been trapped into relying on affidavits filed by both sides to resolve these intricate questions of fact.  I would at the risk of sounding repetitive say that even though he had already made the order to have the case disposed of by legal argument he ought not to have proceeded a step further when he found himself in this quandary for the court has power to vacate the order erroneously made.

But perhaps, there were more disturbing aspect of the decision complained of in the fact that the trial court went beyond the prayer of the applicant and gave judgment summarily for the plaintiff. What I mean is this.  The Defendant went to the court with a simple request, for an order dismissing plaintiff’s claim on the grounds I have already stated.

True in the motion, as is usually the case in all motions, he prayed for further or other orders, as the court may deem fit.  In my view, this prayer properly understood should be limited to such orders as are ancillary to or flows from the principal order sought.  So that in the case that learned trial judge was met with, if he did not think the contract was statute barred, or that there existed a contract between the parties or that the plaintiff does have capacity, all he was under the circumstances of the case empowered to do was to decline the prayer and direct the case to proceed in the normal way.  This means the plaintiff was thereafter free to lead evidence in proof of all disputed facts.  Unfortunately, the trial judge proceeded to make not only definitive findings on matters in contention but went ahead to give judgment in full together with interest at the rate and for the periods claimed, matters which have been denied categorically by the defence.  I do not think the plaintiff at this rehearing can defend this position taken by the learned justice. It cannot be defended on the grounds the parties agreed that the order be made. Indeed where a party or parties pray for any order or orders, relief or reliefs not warranted by any of rule of law or procedure a courts plain duty is to refuse it or them.

There is also one other good reason why apart from the fact that extrinsic evidence was inadmissible, the application under order 25 rule 4 ought not to have been entertained. But I propose to deal with it when considering the application under the inherent jurisdiction or the court. Therefore while I agree that the judge was right in dismissing the application as brought under orders 2, 3, and 4 think he erred in entering judgment for the plaintiffs.  Certainly the judgement which was based solely on the wrong findings and which findings were deduced from plainly inadmissible evidence ought not to stand.

Admittedly the application to dismiss the claim was also brought under the inherent jurisdiction of the court. While it is true that in applications brought under this, the court is entitled to have resort to extrinsic evidence, not merely the pleadings and so affidavit evidence is clearly admissible; the question is whether the applicant would have succeeded. It naturally calls for a determination of the circumstances under which the rule would apply.  Again, the celebrated case of the Ghana Muslim Representative Council vs. Salifu (supra) provides a ready answer.  I would quote His Lordship, the Mr. Justice Azu Crabbe CJ’s thinking on the matter, when faced with a similar issue. The learned Chief Justice said "Although Mr. Reindorfs did not indicate in his argument the rule under which he was inviting the court to uphold the dismissal of the plaintiffs claim; there are two methods by which the court can deal with Mr. Reindorfs second submission, first under the inherent jurisdiction of the court, and secondly under order 25 rule 4 of the High Court Civil Procedure Rule, 1954. The practice in each case is well settled.  The practice matter the first is clearly expressed by Lord Herschell in Lawrence vs. Lord Norreys 1890 15 App. Cases 210 at page 219 its as follows:

" It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction, which ought to be very sparingly exercised and only in very exceptional cases.  I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable and one which it was difficult to believe court be prayed."

In my opinion, I do think that having regard to the substantial matters of fact and law raised in the application itself, that this was a case in which the learned trial justice exercised his discretion properly by refusing the application to dismiss the plaintiffs action and the finding ought not to be disturbed.  My only worry is that he failed thereupon to direct the matter to proceed to trial.  In other words I am not happy that he proceeded to give judgment in favour of the plaintiff.

Similarly, I do think he was right in refusing the application to dismiss the action under order 25 rule 4. The power under order 25 rule 4 is exercisable only where the case is beyond doubt.   But again the clear position of the law is that the pleading may be struck out only in a plain and obvious case where it is apparent (on the face of the pleadings) that even if the facts were proved, the plaintiff is not entitled to the relief he seeks: Hubbuch and Sons Ltd. vs. Wilkinson, Heywood and Clauk Ltd. 1899 1QB 86 at p. 91 CA. Barton, Thompson Co. Ltd. vs. Stappling Machines Co. 1966 1ch 499. The jurisdiction conferred by this rule it has been said is one to be exercised with extreme caution, Moore vs. Lawson 1915 31 TLR 418 at 419 per Azu Crabbe in the Ghana Muslim Representative Case (Supra).  How then can it seriously be said that the plaintiffs pleadings (only pleadings not affidavits) disclose reasonable cause of action?

Clearly, the application under order 25 rule 4 is misconceived. Again, the object of the rule is to weed out frivolous or vexatious action.  But then, the frivolity or vexatiousnes must be plainly apparent on the face of the pleadings.  Speaking for myself, I do not think the plaintiff’s pleadings can be classified as such.  I would also not say they are an abuse of the process either.  The question of whether they would succeed is an entirely different matter and is of no consideration in applications of this nature.  I would end by making this observation.   I am amazed at the "ingenuity" by which with the exception of rule 5, applicant counsel combined all the rules under order 25 and succeeded also in tagging on the inherent jurisdiction of the court. In this case, I am tempted to think that the inherent jurisdiction was added not out of abundance of caution, or ignorance but plainly on purpose.  I believe it was calculated to allow through the back door, extrinsic, that is affidavit evidence and so avoid the bother and possibly expense of a trial.  So for example, if he has to prove foreign law, the expert witness must, unavoidably come from Texas, for it is only under inherent jurisdiction that affidavit evidence may be resorted to.  If this were not counsels motive, when the rules of court, in express and unambiguous terms has given power to the court to strike out pleadings and dismiss a case where it discloses no reasonable cause of action, or is clearly frivolous or vexations, why resort additionally to the inherent jurisdiction rule to have a case dismissed on the grounds of abuse of process.

Certainly, where the pleadings disclose no reasonable cause of action, or where the pleading are frivolous or vexations they may also possibly and properly be described as being abusive of the process. But the point I wish to emphasise is this: where the pleadings disclose no reasonable cause of action etc., one does not need the help of the inherent jurisdiction to bolster up one's cause, unless as I have already intimated, the real intention is to "smuggle" in matters which ought properly to have been introduced by way of viva voce evidence.  I do not think the rules of court are intended to be employed for such purposes and so short circuit trials. When so utilized to obtain undeserving "summary" decisions they do nobody any good and rather prolong the trials.  I think our courts need to be very vigilant, and quick to resist such moves.

JUSTICE OF APPEAL

G. T. WOOD (MRS.)

BROBBEY, JA.: 

This is an appeal from the decision of Accra High Court.  The decision itself was given over a dispute on a payment of US $70,543.82 being the cost of oil supplied to a vessel described as “M/V Vinta”.

The oil was supplied in 1989 in the State of Texas.  Claiming that the indebtedness had been assigned to it, the plaintiff sued on 16th August 1993 in Ghana when the vessel docked at the Tema Harbour.  The defendants are the owners of the vessel.  They resisted the claim on three main grounds, namely, that

1. The plaintiff lacked capacity to sue because Best Oil Company, which supplied the oil, had its certificate to operate withdrawn in its home State of Texas.

2. The action was statute barred because the Law of Texas should have instituted it within three years but it was brought after that period.

3. The defendant had not entered into a contract with the Plaintiff Company.  It rather had a charter contract with another company, which in turn had bunkered the ship and was liable to Best Oil Service for the oil supplied.

Before the filing of summons for directions, the defendants filed a motion on notice under L.N. 140 A, Order 25, rr 2, 3, and 4 and under the inherent jurisdiction of the Court.  The essence of the motion was that the suit should be dismissed on arguments based on the three defences summarized above.

The affidavits and exhibits supported the motion. The plaintiff opposed it and also filed affidavit in opposition backed by exhibits.  In the opposing affidavit, the plaintiff contended that the claim was not statute barred and further that since the debt had been assigned to it, it had capacity to institute the action.

After the motion had been argued, it was dismissed by the trial High Court which proceeded to enter judgment for the plaintiff.  Against the judgement, the defendants, hereafter referred to as the appellants, have appealed to the Court.

The notice of appeal state the grounds of appeal as follows.

(a) The learned judge erred in holding that the plaintiff’s claim is not statute-barred.

(b) The learned judge erred in holding that the defendants are liable for maritime lien resulting from transaction between the chartered and the plaintiff.

(c) The learned trial judge erred in holding that the assignment of debt to the plaintiff by Best Oil Service Inc.  was effective in spite of the absence of any notice of the assignment to the defendants prior to the commencement of this suit.

(d) Further grounds may be filed upon receipt of the honourable court’s ruling”.

In spite of the last point in the notice of appeal, no additional ground was filed. In the appellant’s statement of case, however, they argued a fourth ground to the effect that:

“The learned trial judge erred in failing to consider and to apply the equitable doctrine of laches to the issue of whether or not the suit to arrest the vessel M/V Vinta in Ghana should be barred for unreasonable delay and prejuice.”

This fourth ground should be summarily dismissed for the simple reason that since it raises issue of estoppel, it should have been pleaded in the trial court.  It was not pleaded. As counsel for the plaintiff, to be hereafter called the respondent, rightly pointed out, that ground is based on fresh evidence where no application had been filed to adduce fresh evidence and none had been granted.   The ground was contrary to Rule 26 of CI. 19 of  1997 and failed accordingly.

The appellant’s motion was headed as follows:

“Motion on notice for an order dismissing plaintiff’s claim under order 25 rr. 2, 3, and 4 and the inherent jurisdiction of the Court.”

Order 25 reads as follows:

“Any party shall be entitled to raise by his pleadings any point of law, and any points so raised shall be disposed of by the judge who tried the cause at or after the trial, provided that by consent of the parties or by order of the Court or a judge on the application of either party, the same may set down for hearing and disposed of at any time before the trial.”

This rule is often read with rule 3, which is as follows:

“If, in the opinion of the Court or Judge, the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of dispute, set-off, counter-claim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order thereon as may be just.”

Order 25, r. 4 will be quoted below at the appropriate point in this judgment.

As will soon be observed from the case below in this opinion, the wording of Order 25, rr. 2, 3, and 4 of L.N. 140 A as quoted herein are the same as the old Order 25, r. 2, 3, and 4 of English which have been detailed out and discussed in Halsbury’s “Laws of English” 3rd ed. Vol. 30, page 392.

The “Encyclopaedia of Court Forms and Proceedings” in civil proceedings.” Vol. XIII page 187—189, the “Annual practice” 1965 ed., Vol. 1, pp. 445—452.  They have additionally been given considerable treatment a number of English and local cases.  Their meanings and applications as well as exceptions to the rules have been well defined in those textbooks and decided cases.  The rules have qualifications and limitations, which restrict their applications to motions.

Rule two is invoked where a defendant raises objection which requires serious argument.  The Annual Practice, popularly called the “White Book” at p. 446, explains further that the rule is adopted where the objection raises “serious question of law, which if decided in favour of the party objecting would dispense with any further trial or at any rate with the trial of some substantial issues in the action.

For the purpose of such arguments, the defendant objecting is taken to admit all the facts alleged in the plaintiff’s pleadings: See BURROWS V. PHODES (1899), QB. 821 and ANDERSON V. MIDLAND RLY [1920] 1 Ch. 374.  That was the view taken in Essuon II v. Yemo [1982—83] GLR 562 where it was held that

“For the purpose of an objection raised under Order 25, r. 2 and 3 of the High Court (Civil Procedure) Rules 1954 L.N. 140 A, the party objecting was to be taken to have admitted all the facts alleged in his opponent’s pleading but declared that those facts were not sufficient to raise the legal inference or afford the ground of relief for which the other party contended.”

Another prerequisite for the application of rule 2 is that the order should not be made where the facts are in dispute. See WESTERN S.C. CO. V. AMARAL SUTHERLAND & CO. LTD. [1914] 3 K.B. 55 and PARRY V. LONDON ASSURANCE CO. 8 TLR 88.

A third principle considered in applying rule 2 which is quite similar to the last prerequisite is that the order is made only:

“In respect of matters on which no further light could be thrown at the trial.  As it was held in ISAACS AND SONS LTD. V. COOK [1925] 2 K. B. 401 at page 404 such an order “should not be made in respect of matters which by reason of the obscurity either of the facts or the law ought to be decided at the trial.”

What are the facts in the instant motion to which these three principles can apply? They are these:  By the time the motion was filed in the trial court, the pleadings and the affidavits had stated the respective positions of the parties as follows:  The respondent sued in their capacity as assignees of debts.  The appellants did not admit that.  They rather contended that the respondent lacked capacity to sue.   According to the appellants, the reason for the respondent’s lack of capacity to sue was that its license to operate had been withdrawn in its parent country of the State of Texas.  The appellant took the issue further by arguing that in any case it had no contract with the respondent in respect of the supply of oil to the ship.  The respondent’s reply was that the assignment gave them the right to sue in place of the original supplier of the oil.   Right from the beginning of the suit, therefore, the defendant did not admit the basic position of the plaintiff.  That the facts were in dispute could further be noticed from the appellant’s contention that according to Texas law, the action was statute barred while the respondents relied on an exception to that law to maintain the position that the parties had been outside the State of Texas and therefore were not effected by the law of Texas on limitation of actions.

From the foregoing, it is apparent that

(i) The appellant did not admit the facts alleged by the respondent in its pleadings.

(ii) The facts of the case as relied upon by the respondent and appellant were in dispute.

(iii) The respective positions are likely to be changed if evidence were led on the present date of the assignment because if the assignment pre-dated the withdrawal of the license, it would not have affected the capacity of the respondent to sue as assignees.

If the assignment post-dated the withdrawal of the license the capacity of the respondent would be affected.   The positions of the parties will also be changed if evidence to be led affected the issue of limitation, which was a serious bone of contention between them.

The facts not admitted by the defendants or the disputed facts will only be resolved by adduction of evidence.  In about the only two cases (albeit High Court Cases) in which the issues have been directly delt with, it was held that Order 25, r. 2 should not be applied when the objection rests on evidence or disputed facts or where evidence will be required to resolve issue appearing in the pleadings.  These were OSEI V. DONKOR [1972] 2 GLR 45 and BEKOE V. SOREBOUR [1977] 1 GLR 118.

It follows from the foregoing that Order 25, r.2 was not applicable to the motion filed by the appellant notwithstanding the fact that it stated on the face of the motion in its heading that it was brought under Order 25, rr.2 and 3.  The trial judge therefore erred in considering the objection on the basis of the provisions in rule 2 and 3 of Order 25.

But that did end matters there.  The application was also brought under Order 25, rule 4 and under the inherent jurisdiction of the Court.  Rule 4 reads as follows:

“The court or a judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such cases or in case of the action or defence being shown by the pleadings to be frivolous and vexatious, the Court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Motions under this rule are considered under two distinct heads: The first is the motion to strike out pleadings on the ground that they disclose no reasonable cause of action.

The second is to invoke the inherent jurisdiction of the Court to strike out the action or defence on the ground that it is frivolous and vexatious.  The authorities and decided case over the years have clearly delineated the distinction between the two and the conditions under which each may be applied. In the count book it is stated at p. 448 that

"The principal distinction between the inherent jurisdiction and that under the rule seems to be that when the Court is acting under its inherent jurisdiction evidence by affidavit may be received to show that a pleading is an abuse of the process of the Court; whereas under this rule the nature of the action or defence or defect in the pleadings must appear by the pleadings or particulars and no affidavit is admissible”

Two English cases, which have explained the difference, will be considered: The explanation from Danckwerts LJ. In WENCDIK V. MOLONEY [1965] 2 ALL ER. 871, CA. was this:

"The practice under the former R. S. C. Ord. 25, r4 and under the inherent jurisdiction of the Court was well settled.  Under the rule, it had to appear on the face of the plaintiff's pleadings that the action could not succeed or was objectionable for some other reason. No evidence could be filed. In the case of the inherent power of the Court to prevent abuse of its procedure by frivolous or vexatious proceedings or proceedings which were shown to be an abuse of the procedure of the court, affidavits could be filed to show why the action was objectionable. The commonest case was where a plaintiff was seeking to bring action on a ground which had already been decided or was obviously wholly imaginary".

In REPUBLIC OF PERU V. PERUVIAN GUNNED CO. (1887) 36 Ch. D. 489, Chitty J stated the distinction thus:

"Under rule 4 no affidavit is admissible. That is plain from the terms of the rule itself. In regard to the second branch of the rule relating to the stay of frivolous and vexatious action . . . affidavits are admissible, not by virtue of the rule, but of the general jurisdiction of the Court."

The local cases that one may found in our law reports are more or less based on the above authorities and they make the distinction explicit.  Two High Court cases where the distinctions were made are Amissah-Abadoo v. Abadoo [1973] 1 GLR 40-1.  In GHANA MUSLIM REPRESENTATIVE COUNCIL V. SALIFU [1975] 2 GLR 246, the then Court of Appeal held that since evidence had to be led before issues arising in the case could be resolved, Order 25, r4 was inapplicable.  On another occasion, that Court in TACKIE V. BAROUDI [1977]1 GLR 26 at p. 43 held per Azu Crabbe CJ. that:

"Apart from interpretation am satisfied that affidavit evidence is inadmissible on an application under Order 25, r4 to strike out a statement of claim on the ground that it discloses no reasonable cause of action".

From all the foregoing, the exact position under Order 25, r4 may in summed up as follows:

Order 25, r4 connotes two methods of objecting to pleadings or actions:

a. The first is objection based on the fact that the plaintiff’s claim discloses no reasonable cause of section.  There are four will settled limitations which regulate this kind of objection: These are

1. That objection is raised on rule 4 itself, and nothing else.

2.  That objection should be determined excessively on the pleadings and affidavit, which should ex facie disclose that the plaintiff’s claim discloses no cause of action and so should be dismissed.

3.  No affidavit, exhibit or extrinsic evidence is admissible when objection is raised on this ground.

4. If affidavit or extrinsic evidence have to be relied upon in order to sustain an objection under this rule, then the rule is simply inapplicable.

b. The second method under rule 4 invokes the inherent jurisdiction of the Court to protect itself against abuse of its process and procedure.

The limitations on the application of these methods are as follows:

(i) Under the inherent jurisdiction, objection may be raised for pleadings to be struck out or action dismissed on the grounds that it is frivolous, vexatious or abuse of Court process.

(ii) Affidavits, exhibits and extrinsic evidence are admissible to show the claims or pleadings are frivolous and vexatious and therefore amount to abuse of court process.  Typical grounds for such application will, inter alia, be when the defendant contends that the issue in the action has been tried already or where the pleadings are grossly scandalous or when the defence discloses no valid answer to the claims.

The exact position in the instant case are as follows: The appellant and the respondent have had to file and rely heavily on affidavits and extrinsic evidence in the form of exhibits or opinions of legal experts in order to substantiate and oppose the motion.  That alone takes the motion out of the ambit of rule 4 of Order 25 itself.  This was the view taken by Lord Justice A. L. Smith in Attorney-General of the Duchy of Lancaster v. London and North Western Railway (1892) 3 Ch. 274 where he stated at p. 278:

"I only want to make one remark about XXV, r4.  It seems to me that when there is an application made to strike out a pleading and you have to go to extrinsic evidence to show that the pleading is bad, that rule does not apply.  It is only when upon the fact of it, it is shown that the pleading discloses no cause of action or defence or that it is frivolous and vexatious, that the rule applies. In this case it is manifest that you must go to extrinsic evidence to show that the pleading is bad, and directly it comes to that, the rule does not apply".

In OKOFOH ESTATES LTD V. MODERN SIGNS LTD. [1996–97] S GLR 224 the defendant filed a motion on notice "to dismiss the suit for non-disclosure of cause of action”.  The Supreme Court took the view that that ground brought the application under Order 25, r4 citing ATTORNEY GENERAL OF DUCHY OF LANCASTER V. LONDON AND NORTH WESTERN RLY (supra).   However, the trial judge took into account extrinsic evidence in hearing the application and for that reason it was held that "he fell beyond the bounds of his jurisdiction and his ruling would therefore be set aside" as per the headnote at p. 226.

In conclusion, since the trial judge had to rely on an exhibit and extrinsic evidence of the legal experts order 25, r4 did not apply to the instant motion.  The trial judge was therefore right when he dismissed the objection, although not on the bases of the inapplicability of Order 25.  He rather exercised his discretion wrongly when dismissed the objection and entered judgment on basis of fact and evidence which were seriously contested by both parties.

If Order 25, rule 4 itself did not apply, the invocation of the inherent jurisdiction of the Court in the instant case did not help the appellants either.  This is because in spite of the fact that inherent jurisdiction was referred to in the heading of the motion and further that affidavits and exhibits or extrinsic evidence were relied upon, the appellant canvassed no argument to show that the action was frivolous or vexatious or amounted to abuse of process or court procedure to warrant the invocation of the inherent jurisdiction of the Court to dismiss the respondent's action.

There is yet another reason why the instant case should not have been considered under Order 25, r4.  It was that the case itself raised quite serious questions of law—so serious that both sides had to rely on opinions expressed by legal experts from the United States.  The well-established rule is that Order 25, r4 cannot be applied when the objection raised serious questions of law.  This was the view taken by the Full Bench of the then Court of Appeal in HARLLEY V. EJURA FARMS (GHANA) LTD. [1977] 2 GLR 179 where it was held in the headnote that:

"That application to strike out the plaintiff's pleading should not have been entertained and recourse to order 25, r4 ought not to be made in the case involving serious and intricate questions of law DYSON V. ATTORNEY GENERAL itself concerned the application or Order 25, r4 to serious investigation of ancient law and questions of general importance.  It was held that Order 25, r4 ought not to apply to that type of cases".

Applying the foregoing to the instant case, the objection in the motion on notice should have been overruled and the case proceeded to trial, more particularly where the appellants did not admit the basic position of the respondents, the facts were hotly disputed, serious questions of the law of Texas needed to be investigated and the motion could not be disposed of without recourse to evidence.

One last point apparent on the face of the record was the fact that the trial judge proceeded to enter judgment for the plaintiff.  Order 25, rule 4 stipulates towards the end that:

'The judge may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just".

The rule clearly allows judgment to be entered "as may be just".  The pitfall, which should be consciously avoided by trial judges, is to proceed to enter judgment merely because the objection has failed.  Entry of judgment under this rule should not automatically follow the failure of such objection and this should be so even where the party objecting intimates to the court that judgment may be entered on the failure of his objection.

When judgment has to be entered for the plaintiff on the failure of the objection the court is duty bound from the wording of rule 4 just quoted to examine the merits of the plaintiff’s claim before the judgment may be entered.  It has to be pointed out that if the plaintiff’s desires summary judgment to be entered on his writ, the motion should properly be brought under Order 14.  It will be wrong to use the failure of the objection as ground or for making the plaintiff’s opposition as being equivalent to an application under Order 14.

Entry of judgment for the plaintiff is quite rare and not many of such cases will be found even in the law reports.

In SALMON V. KNIGHT 8 TLR 472 the court not only struck out the defence but also granted the plaintiff an injunction. In REPUBLIC OF PERU V. PERUNIAN GUAMO CO. (supra) the defendant was awarded costs after the action had been dismissed, even though the defendant did not in his motion apply for costs.   In ALFA ENT. LYN V. PAN AMERICAN TR. CO [1979] GLR s71. CA. Summary judgment was given for the plaintiff under Order 25, r2 but that case was based on admission in the pleadings and was therefore quite different from the instant case where the facts are disputed and issues contested.  Even if counsel for the appellant in his submissions before the trial court stated that judgment could be entered against him if his objection failed, that statement could easily be impugned as being contrary to the provision of Order 25, r4 and Order 14 and on the authority of RAMIA V. FOOD SPECIALITIES (GH) LTD. 1987—88 . . . GLR . . .  In that case counsel consented that this Court of Appeal could assume jurisdiction over an arbitration case and make certain orders.  On the bases of consents by counsel for both sides, Orders were made. Thereafter one of the consenting parties appealed to the Supreme Court on the ground that consent was contrary to the express provision of Arbitration Act 1961 (Act. . .) The appeal was allowed and the order set aside.  By the same argument the statement of the appellant's counsel in the instant case could not vest the trial court with jurisdiction to enter judgment under circumstances not sanctioned by the rules in LN 140A.  The trial judge, with respect, erred by entering judgment for the respondent when the appellant's objection failed.

The trial judge was right in dismissing the objection, although not for the report stated in his judgment.   Appeal against that order will therefore be dismissed.

I am however of the opinion that when the appellant's objection failed, the case should have proceeded to trial.

I would consequently allow the appeal, set aside the judgment and all the orders of the trial court relating to entry of judgment and order that the case should proceed to trial but before a different judge.

S. A. BROBBEY

JUSTICE OF APPEAL

COUNSEL

ESHIM FOR AMARKAI AMARTEIFIO FOR APPELLANTS

AMERTEIFIO STARLEY FOR RESPONDENT.

WILHELM AMESMAN v. ANGELINA AMESMAN [11/5/00] C.A. NO. 90/99.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA.

______________________________

CORAM: BENIN, JA(PRESIDING)

GBADEGBE, JA.

OWUSU-ANSAH, JA.

 CIVIL APPEAL NO.: 90/99.

11TH MAY 2000.

WILHELM AMESMAN                                         :             PLAINTIFF

VRS.

ANGELINA AMESMAN                                        :             DEFENDANT

_____________________________________________________________________________________

JUDGMENT

Read the judgment of the court at the invitation of Benin JA.

GBADEGBE, JA:

By his petition, the petitioner respondent (hereinafter referred to as the respondent) prayed for the following reliefs:

(1) that the marriage between him and the respondent/appellant be dissolved;

(2) that the house number as A.52 Abura Estate, Cape Coast be transferred to him

(3) that certain document described as valuables which were in the custody of the respondent be returned to him and

(4) an order for recovery of possession of the said house number A. 52.

Following the service of the process in the nature of a petition on the Respondent, she filed her answer thereto and in particular cross-petitioned for the

(a) payment of alimony to her by the respondent

(b) An order of custody of the only issue of the marriage,

(c) An order of maintenance of the said issue of the marriage

(d) A declaration that the house numbered A. 52, Abura Estate, Cape Coast belongs to her and

(e) An order of perpetual injunction restraining the respondent herein from interfering with her enjoyment of the property. Subsequent thereto, the respondent herein filed a reply to the answer of the Appellant herein and invited the trial Court in its inherent jurisdiction to set aside the adoption order in respect of the only child of the marriage namely Samuel Esi Acquah on the grounds of fraud.  The appellant herein from the admitted evidence was the natural mother of the adopted child.  The action hereinafter proceeded to a full scale trial at the end of which the learned trial judge of the High Court delivered his judgment in favour of the petitioner on all the reliefs claimed and dismissed the cross-petition of the appellant herein. The said delivery of the trial court was made on 10/12/97 and on the 15th of December 97, the appellant herein caused an appeal to be lodged against the same on the following grounds:

(1) That the trial judge erred in lodging that H/No. A.52, Abura Estate was the absolute property of the Petitioner/Respondent.

(2) That the trial judge erred in failing to hold that H/No. A.52, Abura Estate was purchased by the respondent/appellant from money remitted to her for her maintenance.

(3) That the petitioner respondent being a foreign national cannot be entitled to the transfer of the title ordered.

(4) That the judgment is against the weight of the evidence adduced at the trial.

Although by the notice of Appeal filed on 15/12/97, it was indicated that further grounds would be filed, none was filed, the result of which is that the statement filed by learned counsel for the appellant was limited to the said four grounds only.

I have examined the record of proceedings in this matter and had the benefit of the statement filed on behalf of the parties to these proceedings and I am of the view that the point which comes up for determination in his appeal is a short one which turns mainly on the effect of the admitted evidence, the said point being did learned trial judge come to the right conclusion on the facts which unfolded before him? It is settled law that the judgment of a trial court on matters of fact as opposed to those which are legal can only be interfered with when the trial court did not come to the right conclusion on the facts and or come to an unreasonable conclusion on the same: see (1) CUDJOE V. KWATCHEY [1935] 2 WACA 371. (2) NYAME V. TARZAN [1973] 1 GLR 8.

Indeed such is the settle attitude of appellant court that in the case of BASI & ORS. VRS. TABIRI @ ASARE [1987-88] 2 DIGEST PARA 36 @ 79 this court observed thus;

“It was never intended that the court of Appeal (or any appellant court for that matter) should move to a new era of regular questioning of decisions of fact as distinct from law which were supportable.  Consequently there could be no grounds or cavilling at the trial judge’s exercise of direction or duty in the selection of witness to believe or in stating his findings of fact.”

Speaking for myself, I am of the view after a patient and critical reading of the record of proceedings in this matter that the learned trial judge well and truly evaluated the pieces of admitted evidence and came to the right conclusion on the same. In fact, I venture the say that such was the quality of his evaluation that since I do not disagree with him on the same.  I would in my delivery read in extenso a portion of his judgment which by these proceedings it is sought by the appellant to be impeached: At page 140 of the record of appeal wherein he analyses some of the evidence, the learned trial judge says: “I now come to the question of the house at Cape Coast. There is no dispute that the petitioner provided funds for the acquisition of the house.  He provided 22,000.00 US dollars converted into 22,000,000.00 cedis, that on the evidence more than covered the purchase price of ¢18,770,000.00.  The respondent set out to say that the amount was given to her for the support and the maintenance of herself and her child.  I am satisfied that the respondent was evading the truth here.  There is overwhelming and uncontroverted evidence that the Petitioner arrive in Ghana on three occasions carrying fat sums of money for the maintenance of the family; he brought 11 million cedis, 9 million cedis, and 5 million cedis on the consecutive visits and left 3 million cedis, 2 million cedis and 3 million cedis respectively before his outward journeys and these residues were offered for the maintenance of the wife and child.

Besides, the respondent frankly admitted that she received remittance for maintenance from the petitioner whilst he was away, she was not ashamed to declare that the Petitioner took good care of her and the child. Above all, the respondent did extremely affirm in cross-examination that the sum of 22, 000.000.00 cedis given her was meant for the house in question. She also candidly agreed that the Petitioner sent other or further sums of money for certain installations in the house.  These sums included an amount of 1,500 US dollar (about 1,500,000.00 cedis) which with the active support of Samuel Yirenkyi, she fraudulently made the Petitioner remit her for an alleged outstanding of the purchase price of the house.

It is extremely significant to say that the respondent wrote without ceasing to the Petitioner to proclaim the house as his own. (see Exhibit C1 and C4 as well as Exhibit C and C3). In Exhibit C4 she wrote at the time the couple were estranged to say she was prepared to sell this house and send the proceeds to the Petitioner if he so wished. The rationale behind the proposal was that she did not want him to think for a moment that she had cheated or duped him.

Of course, the respondent has construed what she meant by your house in the dispatches to the Austrian husband. By that fond expression of hers, she said since she was the ultimate owner the property also belonged to the Petitioner by reason of their common bond of interest. I disagree. That explanation hardly weighs with me. In the circumstances shown above, the principle underlying the explanation has no merit. It is naïve simplistic and bogus. It is, in my view, simply an after thought. In the result of the foregoing and particularly on the respondent’s own showing, I take the view that the Petitioner is the undisputed owner of H/No. A.52, Abura Estate, Cape Coast and I accordingly so hold………….”

My Lords and brethren, I have detained your precious time in referring to the delivery of the learned trial judge in order to demonstrate that the attack contained in the notice of appeal herein is wholly unjustified.  I also think that since I am in agreement with the trial judge on the findings which are contained in the judgment, the subject matter of this appeal it is important to show to some extent reasons for my agreement and in such a circumstance I think I can do so no better than in his own words, the very words, the words in which he expressed his finding and by so doing express the hollowness and indeed the unjustifiable nature of the criticism levelled against the judgment. My Lords, that being the position and after examining the record of proceedings I have come to the conclusion that the learned trial judge considered the case before him carefully, and took into account all the issues which turned upon the same before coming to his decision in a manner which I must confess made a great impression on me. Speaking for myself I find no substance in the grounds of appeal numbered as 1, 2, and 4 which seek to impeach the findings of fact and I desire to spend no further time on the said grounds and I proceed to have the said grounds dismissed. I think that to come to any other conclusion on the transcript before us would amount to doing injustice to the case as unfolded from the evidence which pointed to one direction namely that the petitioner was entitled to reliefs which the learned trial judge granted in his favour.

There is yet another ground of appeal which I have to consider. The said ground numbered in the notice of appeal as 3 is expressed as follows:” that the petitioner respondent being a foreign national cannot be entitled to the transfer of the title ordered.” I must say without any hesitation that I have had great difficulty in comprehending what learned counsel for the appellant actually intended by this ground. I have after some consideration come to the view that the said ground like those previously considered in this delivery raises no point of substance, it is but a baseless attack on the order of the learned trial judge directing that the appellant in whose name the disputed property namely A/52 Abura Estate, Cape Coast is conveyed to the respondent, who on the admitted evidence was found to have provided the funds by which the house came to be purchased with the title to the said house I think that the criticism levelled at the order on the ground that since the respondent is only enabled at law, to take a leasehold of 50years the order made by the learned trial judge by inference is inviting the appellant to do that which is in conflict with the laws of the land. I do not think so. On the contrary I am of the view that it is a lawful order, an order which by operation of law having regard to the nationality of the respondent is limited to the period provided by law which is fifty years. To place any other view on the said order which is expressed in simple language is to place an unnatural and strained meaning on the same and I have no doubt that the point raised in the said ground is unmeritorious and I am led to the conclusion that the same be dismissed.

In the result, I affirm the judgment of the trial High Court, Cape Coast together with the consequential reliefs therein granted and proceed to have the respondent/appellant’s appeal dismissed in its entirety.

N. S. GBADEGBE

JUSTICE OF APPEAL

OWUSU-ANSAH, JA:

The judgment of my learned and respected brother coincides with my own views on the matter comprehensive as it is.  There is very little I can usefully add.

I would however like to support him further by a very brief addendum. I share the view that this appeal must be dismissed. Indeed the conduct of the Respondent/appellant connotes moral obliquity and leaves a lot to be desired.

It is a suitable but futile attempt to take a foreign national for a ride, and it must not be condoned by this Court in the Supreme interest of justice.  The Court would otherwise be failing in its duty to ensure that justice is done to all manner of men, regardless of their country of origin.

The appeal must be dismissed as being without merit.

P.K. OWUSU-ANSAH

JUSTICE OF APPEAL

COUNSEL

ANSAH OBIRO WITH EFIBA AMIHERE (MRS.) FOR PETITIONER:

BERTON ODRO FOR RESPONDENT/APPELLANT.