i. Introduction/Overview of Facts:

[1] The Plaintiff’s Writ of Summons together with the Statement of Claim was filed on April 26, 2018. The Court entered Interlocutory Judgment in favour of the Plaintiff on July 16, 2018 because the Defendants failed to file their Statement of Defence after an Appearance was entered by their lawyer – Alexander Kwamena Afenyo-Markin. Further to an application to set aside the default judgment the Court granted the Defendants leave to file their statement of Defence out of time on December 6, 2018. Consequently, the Statement of Defence was filed on December 18, 2018.

[2] The essence of the Plaintiff’s claim of defamation is that the 2nd Defendant who is the editor of a newspaper known as “The Publisher” owned or published by the 1st Defendant by a publication on Wednesday 11th to Thursday, 12th April 2018 published or caused to be published a story concerning the Plaintiff of statements alleging fraud and dishonesty on her part in signing a contract in her official capacity as the Deputy Chief Executive Officer of the Ghana Shippers Council. The Plaintiff contends that the statements under the headline; “STINKING DEAL FOR GHANA…AS DEPUTY ASANA SNUBS BOSS & SIGNS DEAL” constitute defamation. The force of the allegations, and their tenor, according to the Plaintiff are understood to mean that she abused and misused her official position and therefore unfit and not deserving of the trust and confidence reposed in her by her employers, the Ghana Shippers Authority.

[3] Following the filing of the Defendants’ 19 paragraph Statement of Defence the Plaintiff through her Counsel has filed the instant Notice of Motion pursuant to Order 11 Rule 18 (1) (a) of the High Court Civil Procedure Rules, 2004, C.I. 47 praying this Court for an order striking out certain paragraphs, specifically paragraphs 2, 4, 6, 8, 9, 10, 11, 13, 14,16, 17 and 18 of the joint Statement of Defence of the 1st and 2nd Defendants/Respondents on the grounds that they “discloses no reasonable defence”.

ii. Arguments in favour of the Application:

[4] Arguing the motion, learned Counsel for the Plaintiff/Applicant, Ms. Yinsonti Tindana holding the brief of Mr. Thaddeus Sory first prayed the Court to strike out the paragraphs listed in the motion paper on the grounds that they disclose no reasonable defence pursuant to Order 11 Rule 18

(1)(a). Explaining further, Learned Counsel submitted that the impugned paragraphs are twelve (12) in total out of the 19 paragraphs that make up the statement of defence. According to Counsel out of the 12, six (6) being paragraphs 8, 10, 11, 14, 16 and 18 are just denials of the Plaintiff’s averments in paragraphs 12, 16, 17, 19, 22, 23, 25 and 26 of the Statement of Claim. According to Learned Counsel, they contain no particulars of specific answer(s) to back the denials contrary to Order 11 Rule 12 (1) of C.I. 47.

[5] Learned Counsel further submitted that the other six paragraphs stated above, being paragraphs 2, 4, 6, 9, 13 and 17 are also only evasive denials and nothing more. In Counsel’s view they do not meet the required standards as contained in the rules of Court. Counsel referred to Order 11 Rules 12 and Order 57 of C.I. 47 which is on defamation. Counsel submitted that it is imperative that the Defendants disclose their particulars of truth as pleaded at paragraph 6 for instance. Counsel further submitted that bare denials are no defence at all in a claim for defamation. According to Learned Counsel if all that the Defendants intend to do was to put the Plaintiff to strict proof, “then there is no need for a statement of defence because regardless the Plaintiff shall be required to prove her claim”.

[6] Finally, Learned Counsel submitted that there is nothing in the statement of Defence filed that will aid in the adjudication of the Plaintiff’s claim because it says nothing. Based on all of the above submissions, Counsel prayed the Court to grant the application by striking out all of the offending pleadings as disclosing no reasonable defence.

iii. Arguments in opposition:

[7] Responding to the arguments of counsel for the Plaintiff/Applicant, learned Counsel for the Defendants Deborah Asabre Ameyaw holding the brief of Mr. Afenyo Markin submitted that the Defendants are opposed to the application on the grounds that it is misconceived. Counsel submitted that the Defendants’ argument is premised on Order 11 Rule 13 of C.I. 47. She referred to the impugned paragraphs and submitted that the Defendants have denied the Plaintiff’s averments and have contended that she will be put to strict proof, to that extent Counsel submitted that denials are part of pleadings and therefore acceptable. Counsel cited the case of HARRIET MORRISON (NEE BAAH) AND CHARLES CANTAMANTO BAAH (JNR) v. REGISTERED TRUSTEES VICTORY BIBLE CHURCH, CHIEF REGISTRAR, LAND TITLE REGISTRY, ACCRA AND THE PERSONAL REPRESENTATIVES OF THE LATE CECILIA MORKOR BAAH [2015] 86 GMJ 59 as part of her submission. With respect to Learned Counsel the Court did not understand the reason for the case cited to the present motion.

[8] Counsel further submitted and prayed the Court to exercise its inherent jurisdiction to look at the entire pleadings and order that the matter be heard on its merits by dismissing the application.

iv. The Court’s Analysis of the Law & Opinion:

[11] I need to emphasize that I have critically scrutinized the motion and considered the arguments canvassed by both Counsel. The law on the practice and procedure of Order 11 Rule 18(1) of CI 47 is that:

i) the judge’s discretion to grant such applications ought to be exercised sparingly and only in obvious cases;

ii) the discretion should be exercised judiciously;

iii) when the facts were in dispute and may call for extrinsic evidence to prove them the rule will not apply and the application should be refused; and

iv) that the application should not be granted if its determination involved serious investigations of questions of general importance. See LARTEY & LARTEY v BEANY (1987-88) 1GLR 590 and OKOFOH ESTATES v MODERN SIGNS LIMITED [1996-97] SCGLR 224.

It should also be noted that Order 11 Rule 18 of CI 47 is a re-enactment mutatis mutandis of Order 25 Rule 4 of LN 140 under which the above cases were determined.

[12] Further, it is important to note that an application like the one at bar is considered only on the basis of the pleadings filed by the parties. If an affidavit was filed, the net effect is that the court is being called upon to embark upon investigations of matters of general importance. The issue is even put beyond per adventure by Rule 18(2) of Order 11 which stipulates:

“(2) No evidence whatsoever shall be admissible on application under subrule (1)(a)”. See the Court of Appeal decision of TACKIE v BAROUDI (1977) 1 GLR 36

[13] In this application I shall make reference to Order 11 Rules 12 and Order 11 Rule 13 and Order 57 of C.I. 47. The Rules of procedure provide as follows:

Rule 12 (1) titled – Particulars of Pleading:

(1) Subject to subrule (2) every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words,

(2)(a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and

(b) where a party pleading alleges any condition of the mind of any person, whether of any disorder or disability of mind or any malice, fraudulent intention or other condition of mind, except knowledge, particulars of the facts on which the party relies.

[14] Since this is a defamation lawsuit reference is also made to Order 57 and specifically Rule 3 (1 and 2). It is titled “Obligation to give Particulars” and it provides that:

3. (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of have been used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of the sense alleged.

(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact and in so far as they consist of expressions of opinion they are fair comment on matter of public interest, or pleads to the like effect, the defendant shall give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters the defendant relies on in support of the allegation that the words are true.

[15] In Law of Civil Procedure (Toronto, Butterworths, 1970) the authors set out the purpose and function of pleadings. They are to:

i. Define with clarity and precision the question in controversy between the litigants.

ii. Give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them. A defendant is entitled to know what it is that the plaintiff asserts against him. The plaintiff is entitled to know the nature of the defence raised in answer to his claim.

iii. Assist the court in its investigation of the truth of the allegations made by the litigants.

iv. Constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties.

[16] The issue before me is this: Is it plain and obvious that the statement of defence discloses no reasonable defence in answer to the action for defamation by the Plaintiff? If it is, the impugned paragraphs in question must be struck. If not, the Plaintiff’s motion must be dismissed.

[17] In view of the above I intend to answer the main issue in the Application by posing the question stated below, namely:

i) Whether or not the listed paragraphs in the motion contained in the

Defendants/Respondents’ Defence filed on December 18, 2018 disclose a reasonable defence and/or answer to the Plaintiffs claim and therefore comply with the rules?

[18] To plumb the full depth of the argument of both counsel and leave no one in doubt as to what the plaintiff’s complaint is, it is desirable to set out those paragraphs of the Statement of Defence – being Paragraphs 2, 4, 6, 8, 9, 10, 11, 14, 13, 16, 17 and 18:

“2. The Defendants are not in a position to deny or admit paragraph 1 of the Plaintiff’s statement of claim.

4. The Defendants are not in the position to deny or admit paragraph 6 of the Plaintiff’s statement of claim.

6. Defendants admit paragraph 8 of the Plaintiff’s Statement of Defence in part and deny that the publication was defamatory because it was a factual story.

8. Defendants vehemently deny paragraph 12 of the Plaintiff’s statement of claim and shall put the Plaintiff to strict proof.

9. Defendants deny paragraph 13 of the Plaintiff’s statement of claim and further says that the implication of the statement does not mean that the Plaintiff signed a dubious contract.

10. Defendants vehemently deny paragraph 14 of the Plaintiff’s statement of claim and say that the contract in question was not signed with the consent and knowledge of the current Chief Executive Officer, Benonita Bismarck.

11. Save that the contract signed was “stinking” and “contentious” the Defendants deny knowing the motive of the Plaintiff.

13. Defendants are not in a position to deny or admit paragraph 18 of the Plaintiff’s statement of claim but further wish to say their position again is that the Chief Executive Officer, Benonita Bismarck did not consent or had knowledge of the said contract.

14. Defendants deny paragraph 19 of the Plaintiff’s statement of claim

16. Defendants vehemently deny paragraphs 22 and 23 of the Plaintiff’s statement claim. 

17. Defendants are not in a position to deny or admit paragraph 24 of the Plaintiff’s statement of claim.

18. Defendants vehemently deny paragraphs 25 and 26 of the Plaintiff’s statement of claim”

[19] It is generally accepted to be true that pleadings in a defamation action are more important than in any other civil class of action. Gatley on Libel and Slander, 7^th ed. (1974) for instance stated in respect of a Plaintiff giving full particulars of the claim in a defamation action that “the Defendant is entitled to particulars of the date or dates on which, and of the place or places where, the slander was uttered. The Defendant is also entitled to be told the names of the person or persons to whom the slander was uttered”…and that the court will not permit the Plaintiff to proceed to use discovery as a “fishing expedition” to seek out a cause of action; see COLLINS v. JONES [1955] 2 All E.R. 145. To my mind, by parity of reasoning the reverse is also true that a Defendant who relies on defences such as justification, qualified privilege, fair comment, responsible communication on matters of public interest etc also ought to provide particulars of the defence.

[20] Now, in this case the Defendants rely on Order Rule 13 (1-3) titled “Admissions and Denials” to make their case. And so what does it say?

13. (1) Subject to subrule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.

(2) A traverse may be made either by a denial or by a statement of non- admission and either expressly or by necessary implication.

(3) Subject to sub rule (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.

[20] To my mind, pleadings are meant to disclose fairly the proposition being presented by the party pleading, and therefore the limitation of pleadings to a recital of denials or non-admissions without more would defeat that fundamental purpose. Moreover, Order 11(13) (1&3) supra requires that a party specifically traverses where he/she does not intend to admit.

[21] Having considered the arguments of both Counsel in entirety, and on the authorities, I am persuaded by statements of law to disagree with the submissions of learned Counsel for the Defendants/Respondents that all the impugned paragraphs can be sustained under Order 13 of C.I. 47 because they comply with the rules of Court. Whilst recognizing that denials and admissions are part of pleadings; in a situation such as the case at bar some of the bare denials without further traverse defeats the fundamental purpose of the rules of Court. To that extent, it is my holding that the competency of some of the identified paragraphs are in issue.

[22] In the opinion of the Court it is quite proper and necessary for a party to set forth the legal conclusion which the party will ask the Court to adopt, provided that conclusion is adequately supported by a statement of facts which are material to that result. On the other hand, it is inadequate to simply plead facts without mentioning the legal consequences which the party will contend flow from the existence of those facts, for otherwise the opposite party and the Court may be left under complete misapprehension as to the outcome which the party pleading will seek to secure at the trial.

[23] In this case it is also important that the rule 3(2) Order 57 of C.I. 47 be reiterated.

“Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact and in so far as they consist of expressions of opinion they are fair comment on matter of public interest, or pleads to the like effect, the defendant shall give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters the defendant relies on in support of the allegation that the words are true”. [Emphasis Mine].

[24] To my mind the interpretation of the phrase “the Defendant shall give particulars…of the facts and matters the Defendant relies on” admits to no ambiguity and it stands out as the central part of the rule in what the rule of procedure requires of a Defendant in a defamation lawsuit. It is trite learning that the use of “shall” in a text is imperative and not optional. To that extent, it is clear that all the bare denial would not suffice under the rule.

[25] Having looked at the Plaintiff’s statement of claim in its entirety and also considered the statement of defence which is the centerpiece of this application on this pleading, I disagree with the Plaintiff that all the impugned paragraphs should be strike out by the Court. For instance I do not understand the basis for the objection to paragraph 2 which states that the Defendants are not in a position to admit the Plaintiff’s description of herself and her address as being unacceptable. Also, I do not see any problem with the Defendant’s averment that they are not in a position to admit or deny the Plaintiff’s paragraph 6 wherein she says she has by dint of hard work earned a very enviable reputation for herself among Ghanaians and especially people in the shipping industry. I wonder what else the Plaintiff expected the Defendants to say apart from what is said.

[26] To my mind many of the averments meet the threshold for pleading even though some do not. For the foregoing reasons, in my view the paragraphs that ought to be struck based on my review of same and the law are paragraphs 6, 11, 14 and 16. The rest are all acceptable based on the law. Paragraphs 17 and 18 for instance deny ‘the calls the Plaintiff contends she has received from family and friends as a result of the publication and the injury she says the publication has caused to her and the need for the Defendants to be restrained’. My understanding of the law educates me that the denial of such an averment is acceptable. With regards to the others, such as paragraphs 9, 10 and 13, I am of the view that the Defendants have joined issue with the Plaintiff and would be required to substantiate their position at trial. I do not think that they need to plead their evidence here and now.

[27] Consequently, I hereby order that the Defendants’ statement of Defence, specifically paragraphs 6, 11, 14 and 16 do not comply with the rules and formalities for pleadings. Consequently, it is my Order that those paragraphs be struck out as being in violation of Order 11 Rule 12 and Order 57 Rule (3) (2).

[28] In the final analysis, I answer the question posed above in this Ruling that those sections of the defence do not raise reasonable answer and defence to the Plaintiff’ claim and therefore do not comply with the rules of court. Costs for the Plaintiff/Applicants is assessed at GH₵1,500.00. Counsel for the Plaintiff asked for cost of GH₵ 5,000.00