ECOBANK GHANA LTD vs GOLDEN WEB LIMITED & 3 ORS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
ECOBANK GHANA LTD - (Plaintiff)
GOLDEN WEB LIMITED & 3 ORS - (Defendant)

DATE:  13TH MAY, 2019
SUIT NO:  TBFS/1/2019
JUDGES:  HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS:  EBENEZER ADJEI BEDIAKO FOR YAW ESHUN FOR THE PLAINTIFF
AMPOMAH BERCHIE FOR FRANCIS KOFFIE FOR THE DEFENDANTS
RULING

 

During the case management conference on 22nd June, 2018 before Her Ladyship Mrs. Justice Angelina Mensah-Homiah, an objection was raised by counsel for the plaintiff with regard to the propriety of a process filed for and on behalf of the 1st Defendant namely: “1ST DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM”. The said process was filed on 21st March, 2018. The basis of the objection was that the process was unknown to the rules of court and accepted practice. Consequently, that process is said to be void in law and the plaintiff is inviting the court to strike it out.

 

Legal Submissions

Counsel for the plaintiff submits that the only process that a defendant may file after a plaintiff has filed a Reply and Defence to Counterclaim is a “Rejoinder” and that must be filed with leave of the Court. He contends that the document filed by the 1st Defendant subsequent to the reply is not a Rejoinder. The document was also filed without the leave of the Court and these make that document void.Counsel cited the case of IDDRISU v AMARTEY [2009] SCGLR 670 and argued that filing a document not warranted by the rules of civil procedure and practice makes that document void ab initio and not even Order 81 of CI 47 can cure it.

 

Counsel for the defendant submits that Order 11 applies to counterclaim in the same way as it applies to the plaintiff’s claim. In this regard, the counterclaimant, who is an original Defendant is considered as the plaintiff to the counterclaim; and the plaintiff in the substantive action is considered as the defendant to the counterclaim.In the result, counsel submits that the counterclaim should be treated as a statement of claim and the defence to the counterclaim should be treated as a statement of defence. That, per the general rules of pleadings, the defendant is entitled to file a reply in response to the defence to the counterclaim, as it is essentially a statement of defence. Counsel submits that IDDRISU v AMARTEY (supra) is not applicable to the circumstances of this case.

 

The Issue

The main issue here is whether the process filed on the 21st March 2018, termed “1st DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM” is warranted by the prevailing rules of civil procedure?

 

The Law

Order 82 rule 3 of CI 47 defines pleadings as:

“the formal allegations by the parties to a lawsuit of their respective claims and defences with the intended purpose of providing notice of what is to be expected at the trial.”

 

In Poku v Frimpong [1972] 1GLR 230, CA Azu-Crabbe JSC explained the meaning ofpleadings thus:

“The pleadings consist of the statement of claim delivered by the plaintiff; the statement of defence, which is the answer of the defendant; the reply, which is the plaintiff’s answer to the defendant; and all subsequent pleadings, which are rarely delivered, such as the rejoinder, the surrejoinder, the rebutter and surrebutter.”

 

The Black’s Law Dictionary, 2nd edition also explained the meaning of pleadings as follows:

“The pleadings are the formal allegations by the parties of their respective claims and defenses, for the Judgment of the court. Code Civ. Proc. Cal. 8 420. The individual allegations of the respective parties to an action at common law, proceeding from them alternately. In the order and under the distinctive names following: The plaintiff’s declaration, the defendant’s plea, the plaintiff’s replication, the defendant’s rejoinder, the plaintiff’s surrejoinder. the defendant’s rebutter, the plaintiffs surrebutter; after which they have no distinctive names. Burrill. The term “pleadings” has a technical and well-defined meaning. Pleadings are written allegations of what is affirmed on the one side, or denied on the other, disclosing to the court or jury having to try the cause the real matter in dispute between the parties. Desnover v. Leroux. 1 Minn. 17 (Gil. 1).”

 

It is clear from the sequence of processes filed in pleadings that a reply is filed by a plaintiff to answer matters raised in the statement of defence and it may also serve as the plaintiff’s defence to counterclaim. The next process after a reply is a rejoinder where the defendant answers allegations in the reply. Processes subsequent to the rejoinder are surrejoinder, rebutter and surrebutter.

By Order 11 rule 4, no pleading shall be filed subsequent to a reply except with leave of the Court.

In IDDRISU v AMARTEY [2009] SCGLR 670,the issue of whether the process termed “Further Defence to Reply and Counterclaim” was warranted by the prevailing civil procedure rules at the time came up for determination by the Supreme Court. The Supreme Court held that the civil procedure rules in operation at the time did not permit and authorize the filing of the above process and therefore struck out the process as a nullity.

 

Analysis

In the instant case, it is obvious that the only process the1st defendant may file after the plaintiff had filed a Reply to the Counterclaim is a “Rejoinder” and the same must be filed with the leave of the court. The 1stdefendants in this case did not file a Rejoinder. What it filed is a process termed, “1st DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM”. There is absolutely no provision made in the civil procedure rules for the above named process. Since the process in contention is alien and unknown to the court, it is on the authority of IDDRISU v AMARTEY [2009] SCGLR 670a nullity.

 

It is trite learning that where the rules of procedure prescribe a mode of enforcing a right or seeking a relief, same must be adhered to as failure to do so in accordance with the prescribed mode is not only an irregularity but a nullity since it raises the fundamental issue of jurisdiction. See Ayikai v Okaidja

[2011] 1SCGLR 205, 208 per Gbadegbe JSC. The anomaly relating to the process in contention cannot be glossed over as a mere irregularity which could be cured by Order 81 of CI 47. Since the process in question is unknown to the rules of civil procedure, the same cannot be recognized by the court to form part of the pleadings to be considered. Granted that the process could be entertained as a mere irregularity occasioned by wrong labelling, the fact that it is a post reply process required leave of the court to make it valid.

 

Conclusion

The result is that the process entitled “1ST DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM” which was filed by the 1st defendant on 21st March, 2018 is a nullity and the same is struck out.

 

 

 

SGD. 

DR. RICHMOND OSEI-HWERE 

JUSTICE OF THE HIGH COURT