MAY 2017 CIVIL PROCEDURE

Q1 (i). Advice Kwame on the ruling by Apelife J in the High Court

Wenchi
Kwame intends to abandon his claim for damages but wishes to
contest the counterclaim. Prepare the necessary application to this
end.
ADVICE ON DISMISSAL OF PLAINTIFF’S ACTION
Proceedings at trial are governed by Order 36 of the High Court (Civil
Procedure) Rules (C.I.47) . Rule 1 of O36 provides that where an action
is called for trial and the defendant attends but plaintiff is absent, the judge
may dismiss the action and allow the defendant to prove the counterclaim if
any, or make such other order as is just. Order 36 rule 3 further provides
that the court may , if it considers it necessary in the interest of justice,
adjourn a trial for such time, to such place, and upon such terms as it
considers fit. This implies that one of the just orders that a judge may make
when a party is absent is to adjourn the case.
The import of order 36 as regards what a judge can do when parties to an
action absent themselves from trial is that the trial judge may exercise a
discretion to either strike out the action, dismiss the action, adjourn hearing
or make any other order which will be in the interest of justice.
Adjournments are at the discretion of the court and the mere refusal by a
judge to grant one cannot of itself constitute a denial of a right as stated in
the case of Ali Yusuf v the Republic. Further in the case of Republic v
High Court ; Ex parte Sian Goldfields Limited, it was held that the
discretion to adjourn a matter in court is vested in the court and if it is
properly exercised, an appellate court will be slow in interfering with such
discretion unless it is proved that the discretion was unfairly exercised.
From the facts stated in the ruling by Apelife J, the matter instituted by
Kwame, the plaintiff was initially adjourned at the first hearing of the trial
because of the absence of the plaintiff’s counsel. On the adjourned day, the
plaintiff was present and looking ill, though his counsel was absent. When
called upon to prove his claim, he stated that he did not know how to go
about it. The trial judge therefore exercised his discretion not to adjourn the
case but to dismiss the plaintiff’s claim in pursuance of Order 36 rule 3 and
grant judgement against the plaintiff on the counterclaim
If the plaintiff can prove that the exercise of the judge’s discretion was
unfairly exercised, he may have a successful chance of appealing the
dismissal of his action.
To that end, Order 4 rule 1 of the rules states that any natural person
may begin and carry on proceedings in person or by a lawyer. Thus, it was
held in the case of Omaboe v Kwame, that a party to an action who is
present in court, though his lawyer is absent, is in attendance and may be
called upon to carry on proceedings. Further, in Mensah v Mensah, it was
held that when a plaintiff refuses to testify because of the absence of his
lawyer, the court may take the view that the plaintiff has abandoned his case
and proceed under Order 36 to strike out or dismiss the action. From the
facts in the ruling, Kwame’s lawyer was absent on the adjourned date but
Kwame himself was present in court. On the basis of Omaboe v Kwame,
the judge was right to call on Kwame to prove his case. However, Kwame’s
case may be distinguished from Mensah v Mensah, in that; there was a clear
refusal by the plaintiff in Mensah v Mensah to prove his claim when called
upon. However, in Kwame’s case, he informed the judge, when called upon
to prove his case, that he did not know how to go about it, coupled with the
fact that he looked ill as admitted by the judge in his ruling.
Accordingly, Kwame cannot be deemed to have abandoned his claim as was
the case in Mensah v Mensah which was an express refusal to prove the
case.
In view of that, Kwame may have a chance at appealing against the
dismissal of his action if he so wishes.
ADVICE ON JUDGMENT ON COUNTERCLAIM AGAINST PLAINTIFF
The other leg of Order 36 relating to the absence of a party states that, a
defendant may be asked to prove his counterclaim if any in the absence of
the plaintiff. A counterclaim is a separate and independent action as settled
by law in the case of Fosuhene v Atta Wusu. Order 38 of CI 47 which
provides the means of adducing evidence by a party in a civil matter is
subject to the Evidence Decree, 1975, NRCD 323. Section 14 of the
Evidence Act provides that a party has the burden of persuasion as to the
existence or otherwise of each fact which is essential to the claim that party
is asserting. Consequently, a plaintiff to a counterclaim is obligated to prove
his claim by adducing evidence.
In Kwame’s case, the defendant filed a counterclaim seeking relief for the
return of an alleged company car. When called upon to prove the
counterclaim, the defendant did not lead in any evidence but only relied on
the absence of the plaintiff to request for the relief sought on the
counterclaim.
Moreover, the defendant further requested from the judge damages which
did not form part of the reliefs sought in the counterclaim. The judge
however went ahead to award damages and costs. The cases of Hanna Assi
v GIHOC Refrigeration and Harrison Edward Nartey v Barclays Bank,
are to the effect that the court cannot award damages which do not form
part of the reliefs sought by a party in their claim. In the latter case, it was
emphasized that general damages do not necessarily and automatically flow
from a breach of contract as to lead to an award by the court when it is not
sought as a remedy.
The rules in Order 36 (2) give an absent party the right to bring an
application to set aside or vary on just terms a judgment obtained against a
party who fails to attend at the trial.
Kwame may therefore bring an application to set aside the judgement on the
counterclaim awarded against him and also seek to vary the award of costs
against him as well.

Q 1(ii) Kwame intends to abandon his claim for damages but wishes to contest the
counterclaim. Prepare the necessary application to this end.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
WENCHI. AD 2015
SUIT NO…….

BETWEEN

Kwame Brokeman ********* Plaintiff/Defendant to the counterclaim/Applicant

No 112 Brong Street,
Berekum
AND

Bulldozers (Ghana) Ltd ********** Defendant/Counterclaimant/Respondent

12 Mim Road
Berekum

MOTION ON NOTICE
APPLICATION TO SET ASIDE THE JUDGEMENT ON THE COUNTERCLAIM BY
APELIFE J
ORDER 36 RULE 2 OF C.I. 47

TAKE NOTICE that this Honourable Court will be moved by counsel for the
defendant/applicant praying for an order to set aside the judgement of His Lordship Apelife J on
the respondent’s counterclaim based on the grounds set out in the accompanying affidavit

AND FOR such further or other orders as to this Honourable Court shall deem fit.
COURT TO BE MOVED on the ____ day of ________ 2015 at 9:00 in the forenoon or soon
thereafter as Counsel for the applicant may be heard.

DATED AT PεBRABIBϽ CHAMBERS, THIS 24TH DAY OF MAY, 2015

(SIGNATURE)
ALICE COCHRANE
Lawyer for the applicant
PεBRABIBϽ CHAMBERS
Osu – Accra
Solicitors Licence no:…………
THE REGISTRAR
HIGH COURT
WENCHI.
COPIES FOR SERVICE ON THE ABOVE NAMED RESPONDENT OR HIS LAWYER

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
WENCHI. AD 2015
SUIT NO…….
BETWEEN
Kwame Brokeman ********* Plaintiff/Defendant to the counterclaim/Applicant
No 112 Brong Street,
Berekum
AND
Bulldozers (Ghana) Ltd ********** Defendant/Counterclaimant/Respondent
12 Mim Road
Berekum

AFFIDAVIT IN SUPPORT

I, Kwame Brokeman of House No 112 Brong Street, Berekum hereby make oath and say, as follows:

1. I am the Plaintiff/Defendant to the counterclaim/Applicant herein and deponent hereto.

2. That I swear to this affidavit to facts within my personal knowledge and to those which I have been
advised by my Counsel and verily believe same to be true.

3. That at the hearing of this application my learned Counsel shall seek leave of this Honourable Court
to refer to all the processes filed in connection with this suit.

4. That, I cause a writ of summons to be issued against the defendants.

5. That the defendants in their statement of defense issued a counterclaim against me.
6. That upon careful consideration and the stressful effect of maintaining an action against the
defendants, I decided to abandon my claim for damages but to contest the counterclaim.

7. That on the day of the hearing of the counterclaim, I could not be present since I was on admission at
the hospital.

8. That on the said day of the hearing, my lawyer was also not present as he was "on his feet" in the
Court of Appeal, Kumasi.

9. That the records of proceedings herein attached and marked as ‘Exhibit A’ shows that the
counterclaim was granted not on its merit but on the fact that both my lawyer and I were not in court.

10. That I have been advised by counsel and verily believe same to be true that the
Counterclaimant/Respondent was awarded damages on the counterclaim although they did not claim
for same.

11. That I am informed by counsel and verily believe same to be true that damages are always in issue
and should thus be expressly claimed and proved which was not done in this case.

12. That I am informed by counsel and verily believe same to be true that the court on application may
set aside the judgment as it was not based on the merits of the case so that the claim can be properly
contested for the rights of the parties to be finally determined.

WHEREFORE I swear to this affidavit in support of the application to set aside the writ of
summons against me.

Sworn to at ............ this..................]

day of ...................... 20 ............] ................................
Deponent

Before Me

Commissioner For Oaths

 IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
WENCHI. AD 2015
SUIT NO…….

BETWEEN

Kwame Brokeman ********* Plaintiff/Defendant to the counterclaim/Applicant

No 112 Brong Street,
Berekum

AND

Bulldozers (Ghana) Ltd ********** Defendant/Counterclaimant/Respondent

12 Mim Road
Berekum

CERTIFICATE OF EXHIBITS

I ____________________________, Commissioner for oaths, do certify that I have examined and

identified the documents herein attached as Exhibits A to this affidavit sworn before me.

DATED THIS DAY OF 2015

Before Me

Commissioner For Oaths

 IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(CIVIL DIVISION)
TAMALE-AD.2020

SUIT NO:………..

BETWEEN

NANGTOMA
(trading under the name and style PLAINTIFF
Hajia Provisions Enterprise)
No. 441 Savelugu.

AND

AUTO SPECIAL GARAGE

DEFENDANT
(Neem Avenue, Tamale)

STATEMENT OF CLAIM

1. The Plaintiff is petty trader who runs a shop under the name and style
Hajia Provisions Enterprise at No. 441 Savelugu.

2. The defendant is a business entity trading under the name Auto

Special Garage at Neem Avenue, Tamale.
 3. The Plaintiff avers that on or about 1 st September 2012, he bought a
second-hand Kia Sorento car numbered GN3321- 10 from the
defendant.

4. The Plaintiff further avers that he was issued a receipt and the
ownership transfer note in his name and he accordingly registered the
car.

5. That the receipt contained the inscriptions: 'guaranteed for twelve

months'.

6. Plaintiff says that three weeks later, whilst he was on a journey with his
wife Hajia Amina on the Bolgatanga-Tamale Road, there was oil leak
from the sump and the cylinders were glazed and worn.

7. That, this resulted in the breakdown of the vehicle after the first 30 km
ride and the car stopped moving.

8. Plaintiff further says that it cost him GH2,000.00 to make the vehicle
serviceable.

9. During the repairs, which took six weeks, he hired another car
incurring a cost of GHS150.00 per day.

10. All attempts by Plaintiff to get Defendant to honour the

guarantee/warranty have been unsuccessful.

WHEREFOR Plaintiff claims against the defendant as follows:

1. A declaration that the defendant having refused to honour the

guarantee is in breach of the contract of sale.

2. An order for Defendant to pay GHS2,000.00 being cost of repairs

3. An order for Defendant to pay GHS6,300.00 being the transportation

cost incurred for the six (6) whilst the car was under repairs.

4. Damages for breach of contract.

5. Cost of action.

DATED AT UBERRI CHAMBERS, No.1 GADAFI STREET, OSU-ACCRA,

THIS 1ST DAY OF OCTOBER, 2012.
 ………………………………………
KOFI TIMBUKTU
LAWYER FOR PLAINTIFF
LICENSE NO……………….
THE REGISTRAR
HIGH COURT
TAMALE

AND COPY FOR SERVICE ON DEFENDANT HEREIN

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
(CIVIL DIVISION)
ACCRA-AD.2020

SUIT NO:…………

BETWEEN

MR. KOFI MANU PLAINTIFF/DEFENDANT TO COUNTERCLAIM

Hse. No.14 Madina-Estate
Accra

AND

MR. YAO ABODAKPI 1st DEFENDANT/PLAINTIFF TO COUNTERCLAIM

Plot 15, Blk C, Dansoman
Accra

Mr. EFO KOJOVI 2nd DEFENDANT/PLAINTIFF TO COUNTERCLAIM

(Plaintiff to direct service)

ALTERNATIVELY

MR. KOFI MANU PLAINTIFF

Hse. No.14 Madina-Estate
Accra

AND

MR. YAO ABODAKPI DEFENDANTS

Plot 15, Blk C, Dansoman
Accra

Mr. EFO KOJOVI

(Plaintiff to direct service)

AND BY WAY OF COUNTER CLAIM

MR. YAO ABODAKPI PLAINTIFFS

Plot 15, Blk C, Dansoman
Accra

Mr. EFO KOJOVI

(Plaintiff to direct service)

AND

MR. KOFI MANU DEFENDANT

Hse. No.14 Madina-Estate
Accra

STATEMENT OF DEFENCE AND COUNTERCLAIM

1. Save as herein expressly admitted, Defendants herein deny every

material averment contained in the Plaintiff’s statement of claim as if
same safe were set out in extensor and denied seriatim.

2. Defendants admits paragraph 1 of the Plaintiff’s statement claim

3. Defendants further deny the collision an also that his driver drove
negligently.
 4. Defendants say that the accident was caused by Plaintiff because he
attempted to drive at an unreasonably fast speed through the traffic
lights when they showed amber against him and the defendant's car
was already in the lights.

5. The defendants admit the conviction but claim that it is binding on the
driver only and deny all injuries and losses allegedly sustained by the
plaintiff.

6. Defendants avers that, as a result of the accident it cost them

GHC6,000.00 to repair their Mazda saloon car No. GWI234-I2.

7. Defendants further say that, during the repairs, they hired alternative
transport at GHC 1,200.00 for 100 days during the repairs.

COUNTERCLAIM
1. By way of counterclaim, Defendants repeat paragraph 1 to 7 of the
statement of defence and counterclaim as follows;

i. A declaration that the accident was caused by the Plaintiff’s

negligent driving.

ii. A declaration that Defendants are not responsible for the injuries
sustained by the Plaintiff and his vehicle.

iii. An order for Plaintiff to pay GHS6,000.00 being the cost fixing
defendants car.

iv. An order for Plaintiff to pay GHS120,000.00 being transportation

cost incurred by Defendants for 100 days.

DATED AT UBERRI CHAMBERS, No.1 GADAFI STREET, OSU-ACCRA,

THIS 1ST DAY OF OCTOBER, 2012.

………………………………………
LAWYER FOR PLAINTIFF
KOFI TIMBUKTU
LICENSE NO……………….
THE REGISTRAR
HIGH COURT
ACCRA
 AND COPY FOR SERVICE ON PLAINTIFF HEREIN OR HIS LAWYER.

Question 3
a. What should a defendant who intends to resist an application for summary
do to avoid summary judgment against him?
According to Or.14 r3, the Defendant who intends to resist an application for summary
do to avoid summary judgment against him must show cause against the application by
filing an affidavit evidence to the satisfy the court on why summary judgment should not
be entered against him by showing that he has a good defence to the action on its
merit.
The affidavit must disclose facts that may be deemed sufficient to entitle him to defend
the action generally and also show whether the defence goes to the whole or part of the
amount claimed. Where the Defendant shows cause, the Court may order the
Defendant or any person purporting to act in its capacity to attend and be examined on
oath or to produce any document if it appears to the Court that special circumstances
make that desirable.

b. What is review under Order 42 of CI 47 and under what circumstance may a

court grant an application for review?
A review is the power of the court to re-hear a case or make any order regarding the
rehearing as it deems fit. Upon the rehearing, the court may amend, vary or confirm its
previous judgment or order.
Grounds for Review (Or 42 r 1)
i. When there is a discovery of a new matter or evidence which after the
exercise of due diligence was not within the person’s knowledge or could not
 be produced by that person at the time the judgment or order was given or
made.
ii. That there’s a mistake or error apparent on the record.
iii. Any other reason that the Court deems sufficient.
iv.

c. Explain briefly the proceedings for applying for a grant of Letters of

Administration
The application for the grant of LA is provided for under Order 66 r 1. It is by motion ex
parte, supported by affidavit and a set of statutory forms, and such other documents as
the court may require.
The first issue to consider in matters of probate and administration is jurisdiction. An
application for letters of administration is to be made only to the court with jurisdiction
where the deceased person had at the time of his death a fixed place of abode.
The application shall also be made in the court in the area where any property of the
deceased may be found, shall, subject to the Courts Act, 1993 (Act 459) or any other
enactment for the time being in force, have jurisdiction for the purposes of granting
probate or letters of administration in respect of the estate.
Where the deceased has property within the jurisdiction of more than one court, the
application shall be made to only one of the courts in respect of all the properties.

Notice of an application shall be given to the registrar of every Court with jurisdiction in
the areas where the property may be found.

The following documents are needed for the application for LA:
ii. Motion ex parte
iii. Affidavit by applicants shall state the identity the deceased, interest of the
applicants in the estate, place of abode of the deceased, date and place of
death where married, the name of the surviving spouse and children with
their ages.
iv. Affidavit of head of family confirming the facts as contained in the affidavit
of the applicants
v. Oath for administrator not with will annexed [statutory form]
vi. Declaration of movable and immovable property of intestate [statutory
form]
vii. Death certificate or any evidence of death.
 d. Discuss the procedure that governs probate and administration matters
where a caveat is filed, up to the time when the court determines how to try
the matters raised by the caveat.
Order 66 r 11 provides as follows:
i. A caveat is filed either before or after an application has been made for
probate or LA but must be done before the grant.
ii. A caveat filed shall be brought to the notice of the court by the registrar and
the effect of the caveat is that nothing ought to be done on the application
until the caveator is heard.
iii. The court shall direct the registrar to notify the applicants or their lawyer of the
caveat filed.
iv. The caveat shall remain in force for 3 months from the date of filing but can
be renewed from time to time.
v. The person who files a caveat shall be warned by the registrar at the instance
of the applicant or persons interested in the estate to file an affidavit of his
interest in the estate of the deceased.
vi. If the warning is not obeyed, the applicant shall move the motion for grant of
LA or probate ex parte and where the court deems it fit, order that the notice
be served on the caveator.
vii. If the caveator obeys the warning, a copy of the affidavit of interest will be
served on the applicants.
viii. The applicant shall then move the court to grant probate or LA on notice to
the caveator. When the motion comes on for hearing, and the parties agree
among themselves as to the person to whom a grant of probate or LA should
be made, the court will order the removal of the caveat and a grant be made
to the persons.
ix. Where there is no agreement, the court shall determine who is entitled to a
grant of probate or LA summarily or may order the applicant(s) to issue a writ
against the caveator within 14 days from the date of the order to determine
who is entitled to the grant of probate or LA.
QUESTION 4

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
SWEDRU A.D.2020
SUIT NO. _________
BETWEEN
MADAM MANSA KOBI -------- PLAINTIFF
SWEDRU

AND

HAMID ALHASSAN -------- DEFENDANT

(TRADING AS GOLDEN METEORS ENTERPRISE)
SWEDRU
NOTICE OF LIST OF DOCUMENTS (ORDER 21)

PLEASE TAKE NOTICE that Counsel for the Defendant shall at the hearing of this
action make use of the following documents:
1. Letter from the Plaintiff to your Defendant dated 10th April 2016;
2. Copy of a letter from Defendant to Plaintiff dated 13th April 2016
3. Letter from Plaintiff solicitors to Defendant dated 27th April, 2016
4. Six (6) Letters from Plaintiff solicitors to Defendant Solicitors dated 6 th May, 2016,
2nd May 2016, 12 June 2016, 2nd September 2016 and 24th September, 2016
 5. Five (5) Letters from Defendant Solicitors to Plaintiff Solicitors dated 7 th May,
2016, 22nd May, 2016, 9th June, 2016, 3rd September, 2016 and 22nd September,
2016

DATED AT BAD CHAMBERS, GIMPA, ACCRA THIS 12TH DAY OF JULY, 2020
--------------------------------------------
BEN DOE
LAWYER FOR DEFENDANT
THE REGISTRAR
HIGH COURT
SWEDRU

AND FOR SERVICE ON THE ABOVE NAMED PLAINTIFF OR HER SOLICITORS:

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
SWEDRU A.D.2020
SUIT NO. _________
BETWEEN
MADAM MANSA KOBI -------- PLAINTIFF
SWEDRU
AND
HAMID ALHASSAN -------- DEFENDANT
(TRADING AS GOLDEN METEORS ENTERPRISE)
SWEDRU

AFFIDAVIT IN SUPPORT OF NOTICE OF LIST OF DOCUMENTS

I HAMID ALHASSAN of Swedru, make oath and say as follows:

1. That I am the Defendant and deponent herein and I depose to the facts of this
affidavit which are within my personal knowledge and belief.
2. That I am the Proprietor of Golden Meteors Enterprise
3. That the list of documents as filed by me is true and accurate details of
documents in my possession upon which I wish to rely on in the instant action
 4. Wherefore I swear to this affidavit in support of the list of documents herein.

________________
Deponent
SWORN IN SWEDRU
THIS 12TH DAY OF JULY, 2020

BEFORE ME

COMMISSIONER FOR OATHS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE
SWEDRU A.D.2020
SUIT NO. _________
BETWEEN
MADAM MANSA KOBI -------- PLAINTIFF/RESPONDENT
SWEDRU
AND
HAMID ALHASSAN -------- DEFENDANT/APPLICANT
(TRADING AS GOLDEN METEORS ENTERPRISE)
SWEDRU

MOTION ON NOTICE FOR DISCOVERY OF DOCUMENTS PURSUANT TO ORDER

21 RULE 2(6)

PLEASE TAKE NOTICE that Counsel for Defendant/Applicant herein will move this
Honourable Court praying the Court for an order to make discovery of the underlisted
documents in the post possession of the Plaintiff/Respondent herein upon the grounds
set forth in the accompanying affidavit,
1. Receipts on the transaction of 2nd March, 2016 between Plaintff and Defendant
2. All other documents relating to the transaction of 2nd March, 2016 between
Plaintiff and Defendant

AND FOR SUCH further or other orders as this honourable court may deem fit
Court to be moved on ______ day of July, 2020 at 9 O’ Clock in the forenoon or so soon
thereafter as Counsel for Defendant/Applicant may be heard.

DATED AT BAD CHAMBERS, GIMPA, ACCRA THIS 12TH DAY OF JULY, 2020

-----------------------------------------------
BEN DOE
LAWYER FOR DEFENDANT

THE REGISTRAR
HIGH COURT
SWEDRU

AND FOR SERVICE ON THE ABOVE NAMED PLAINTIFF OR HER SOLICITORS:

IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
SWEDRU A.D.2020
SUIT NO. _________
BETWEEN
MADAM MANSA KOBI ------ PLAINTIFF/RESPONDENT
SWEDRU

AND
HAMID ALHASSAN ------ DEFENDANT/APPLICANT
(TRADING AS GOLDEN METEORS ENTERPRISE)
SWEDRU

AFFIDAVIT IN SUPPORT OF MOTION FOR DISCOVERY OF DOCUMENTS

I HAMID ALHASSAN of Swedru, make oath and say as follows:

1. That I am the Defendant/Applicant and deponent herein and I depose to the facts
of this affidavit which are within my personal knowledge and belief.
2. That I am the Proprietor of Golden Meteors Enterprise
3. That at the hearing of this application, my Counsel shall seek leave of this court
to rely on all processes already filed in this case as if they were part of the instant
application.
4. That on 3rd of April,2016, as a result of a burglary, I lost all documents related to
the transaction which has resulted in the instant suit.
 5. That I have been advised by my Counsel and believe same to be true that
pleadings in the instant action has closed.
6. That Plaintiff/Respondent has failed to make a list of documents for mutual
discovery.
7. That I have been further advised by my Counsel and believe same to be true that
this court has the power to order Defendant/Applicant to make discovery of such
documents as may assist Defendant/Applicant in his case after the close of
pleadings.
8. Wherefore I swear to this affidavit in support of the instant application
________________
Deponent
SWORN IN SWEDRU
THIS 12TH DAY OF JULY, 2020

BEFORE ME
COMMISSIONER FOR OATHS

QUESTION 5

A. With the aid of decided cases, write an informed opinion to a client who has instructed you to
take steps to obtain a court order to strike out the pleadings filed by his opponent in court.

Order 11 Rule 18 provides that “the Court may at any stage of the proceedings order any pleading or
anything in any pleading to be struck out on the grounds that
a. it discloses no reasonable cause of action or defence; or
b. it is scandalous, frivolous or vexatious; or
c. it may prejudice, embarrass, or delay the fair trial of the action; or
d. it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly.

(2) No evidence whatsoever shall be admissible on an application under subrule (1) (a)”

a. Reasonable cause of action –

In Letang v. Cooper "A cause of action is simply a factual situation the existence of which entitles one
person to obtain from the court a remedy against another person."

A pleading can be struck out where writ of summons or statement of claim disclose no reasonable
cause of action against the defendant. In the case of Harlley v Ejura Farms Ltd it was held where a
pleading discloses no reasonable cause of action and the pleadings cannot by any amendment be
made to disclose a cause of action, then it seems to me that it is mandatory, not discretionary, that the
 pleadings be struck out, and extrinsic evidence by way of affidavits and documents cannot be looked
at for the exercise.

a. When a party applies to strike out pleadings because it discloses no reasonable cause of action or
defence, no evidence is admissible. In other words, the court will consider the issue on the face of the
pleadings and determine whether or not it discloses no reasonable cause of action. In the case of
Ghana Muslim Representative Council v Salifu the Defendants applied for the action to be struck
out on inter alia grounds that the writ and SOC disclosed no reasonable cause of action. Held: it was a
matter within the judicial discretion of a judge whether or not to strike out pleadings or stay
proceedings on the ground that the pleadings disclosed no reasonable cause of action or defence or
that the action had no reasonable chance of success. The jurisdiction of the court must, however, be
exercised with extreme caution. A pleading would only be struck out where it was apparent that even if
the facts were proved the plaintiff was not entitled to the relief he sought. In any case affidavit
evidence was inadmissible on an application to strike out pleadings on the ground that the action had
no reasonable chance of success.

b. it is scandalous, frivolous or vexatious or abuse of the court process

Where an application is made for striking out pleadings for being scandalous, frivolous or vexatious or
abuse of the court process, the court may admit extrinsic evidence in support of the application. In the case
of Okofo Estates Ltd v Moder Signs Ltd it was held that since the respondents' application was "to
dismiss suit for non-disclosure of cause of action" but did not ask the court to dismiss the action for being
an abuse of the process of the court, the High Court judge erred in taking extrinsic evidence into account.

c. Timing
The rule allows the application to be made at any stage of the proceedings. However, the Supreme Court
has held that an application ought to be brought promptly when the offending pleading is served
(Gbenartey & Glie v Netas Properties & Investments)

QUESTION B

B. Order 11 rule 13 (3) of CI 47 provides that (3) Subject to subrule (4), every allegation of fact made
in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall
be specifically traversed by the party in the party's defence or defence to counterclaim and a general
statement of non-admission shall not be a sufficient traverse of them.

A defendant in answering allegations in an State of Claim may admit some or all the facts in the claim, or
may deny the facts contained in the claim

The general rule is that, facts that are not denied or admitted specifically are assumed to have been
admitted. Thus, if the Defendant does not deny specifically an allegation, it will be deemed that he has
admitted that fact The denial or admission must be specific and not general. Where D denies a fact, it is
known as ‘traverse’ (Order 11 r13(3))
a. Person’s with disability - Or.5 r7 provides an exception for persons with disability not to be taken as
admitting the truth of any allegation made in the pleading of the opposite party by reason only that the
person with disability has not traversed it in his/her own pleading.

b. Application for judgement: Plaintiff is at liberty to take judgment on the admitted facts without waiting
for the determination of any other question – Or.23 r6(2) Where an admission of the truth of a fact or
the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a
party in response to a request to admit, any party may apply by motion to the Court or to the Judge for
such order as the party may be entitled to on the admission without waiting for the determination of
any question between the parties, and the Court or the Judge may make such order as is just.

c. Avoid evasive denials: Defendant must not make evasive denials but must answer substantive
allegations e.g. in a claim for goods sold and delivered, it’s an evasive denial for Defendant to plead
that he does not owe the amount; he must answer the claim e.g.
a. He never ordered the goods
b. The goods were never delivered
c. The goods were not in conformity with his order
d. The goods were delivered to a wrong person or outside the time stipulated for delivery

In traversing a fact, D must deny or say that he does not admit the averment contained in a paragraph of
the SOC. Expressions like “D puts P to strict proof…” or without more, “D is not in a position to admit or
deny a fact” should be avoided.

d. General traverse: D may however begin or end his SOD with what has come to be known as a general
traverse e.g. “SAVE AS HEREIN BEFORE/AFTER ADMITTED, THE DEFENDANT DENIES EVERY
ALLEGATION OF FACT CONTAINED IN THE SOC AS IF SAME WAS SET OUT IN EXTENSO AND
DENIED SERIATIM”.

Indeed the rules don’t allow the general traverse – Or.11 r13(3) – but in practice, it’s used to fill in gaps
especially where there has been a partial denial of facts. In practice, the general traverse will be given
effect where the allegations are answered partially, leaving some unanswered. In such a situation, the
general traverse as pleaded will be a supplement.

Ansah v Busanga [1976] 2 GLR 4881 on the issue of whether a general traverse contained in the
appellant’s SOD operated to put the onus of proof on the respondent, held, although it was necessary and
desirable for allegations of fact contained in an opponent's pleading, if not admitted, to be denied
specifically, and not evasively, nevertheless, a general traverse in proper form operated to put the matter
at large and to put the opponent to proof of those allegations of fact.

1 A general traverse in proper form operates to put the matter at large and to put the opponent to proof of those allegations of fact.
Brutuw v Aferiba [1982-83] GLR 464 plaintiff alleged that defendant obtained a judgment from the court
through fraud. It was also alleged that D committed perjury. The defendants’ SOD did not, however,
specifically deny the charge of perjury though it contained a general traverse. It was submitted by the
plaintiff's counsel that failure to deny the charge of perjury meant an admission of it. Held; it was incumbent
on the plaintiff not only to particularise that fraud with exactness but also to establish that allegation by the
strict proof such a charge required.

QUESTION 6

ORDER 9—APPEARANCE
Rule 1—Who may File Appearance
(1) Subject to Order 5 rule 1 of these Rules a defendant to an action may, whether or
not the defendant is sued in a personal capacity or as a trustee or as a personal
representative or in any other representative capacity, file appearance in the action and
defend it in person or by a lawyer.

Rule 5—Time Limited for Appearance

In these Rules references to the time limited for appearance are references
(a) in the case of a writ served in the country, to eight days after the service of the writ
or where that time has been extended by the Court, within that time as extended; and

Rule 6—Late Appearance

(1) A defendant may not file appearance after judgment has been entered in the action
except with leave of the Court.
(2) Except as provided by subrule (1), nothing in these Rules shall be construed as
precluding a defendant from filing appearance after the time limited for appearance, but
if the defendant does so the defendant shall not, unless the Court otherwise orders, be
entitled to serve a defence or do any other thing later if the defendant had appeared
within that time.

ORDER 10
Rule 10—Actions on Mortgages
(1) In any action in which the plaintiff claims any of the following reliefs:
(a) payment of moneys secured by a mortgage or charge;
(b) sale of property subject to a mortgage or charge;
(c) delivery of possession of mortgaged property to the mortgagee or person entitled to
the charge by the mortgagor or person having the property subject to the charge or by
any other person in, or alleged to be in possession of the property;
(d) redemption of property subject to a mortgage or charge;
(e) discharge of a mortgage; or
(f) delivery of possession of a mortgaged property by a mortgagee,
judgment shall not be entered in default of appearance except by leave of the Court.
(2) The Court may require the application for leave to be supported by evidence which
entitles the applicant to relief and may direct that notice of the application shall be given
to the defendant and to such other person as the Court may consider proper.

According to Order 9 rule a defendant who is sued is to file appearance in the action
and defend it in person or by a lawyer. This filing is to be done within the time limit as
stipulated by the rules. Where a defendant fails to do so the plaintiff may apply for
judgement in default of appearance. However under Order 10 rule 10, when the action
is on mortgages judgment shall not be entered in default of appearance except by leave
of the Court. The Court may require the application for leave to be supported by
evidence which entitles the applicant to relief and may direct that notice of the
application shall be given to the defendant and to such other person as the Court may
consider proper.

STEP
First a search to find out if leave was sought before the application for default
judgement was made.
Apply to the court to set aside the judgement in default of appearance since it was
obtained irregularly.
Apply for leave of the court to file appearance.

B. Upon what main ground will a judgment entered in default of pleadings be set aside
by the
Court?
Order 13 Rule 8 Setting Aside Judgment
The Court may on application by a party affected and on such terms as it thinks just, set
aside or vary any judgment entered in pursuance of this Order.

The important ground that the court would consider before setting aside a judgement is
whether or not the party applying has a good defence to the action. Failure to disclose
no reasonable defence nor no useful purpose will be served in setting the judgement
aside then the application will be refused

C. What remedy is available to a defendant against whom a judgment has been entered
for
his/her failures to attend Court under Order 36 Rule 2 of C.I.47?.
Order 36 Rule 2—Judgment given in Absence of Party may be Set Aside
(1) A Judge may set aside or vary, on such terms as are just, a judgment obtained
against a party who fails to attend at the trial.
(2) An application under this rule shall be made within fourteen days after the trial.

D. State the grounds upon which a party may apply for summary judgment under Order
14 of
C.I.47?

ORDER 14—SUMMARY JUDGMENT

Rule 1— Application for Summary Judgment
Where in an action a defendant has been served with a statement of claim and has filed
appearance, the plaintiff may on notice apply to the Court for judgment against the
defendant on the ground that the defendant has no defence to a claim included in the
writ, or to a particular part of such a claim, or that the defendant has no defence to such
a claim or part of a claim, except as to the amount of any damages claimed.