IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
ENABLIS ENTERPRISE NETWORK - (Plaintiff)
TULLOW GHANA LIMITED - (Defendant)
DATE: 14 TH MAY, 2018
SUIT NO: CM/BDC/0240/17
JUDGES: GEORGE K. KOOMSON (JUSTICE OF THE HIGH COURT)
BENEDICT ASARE MORKLEY (WITH WINIFRED ODOI QUARSHIE) LED BY ABDALLAH ALI NAKYEA FOR PLAINTIFF
VALARIE HILDA ATUWO FOR KIMATHI KUENYEHIA FOR DEFENDANT
In this action the Applicant has applied to this court for an order compelling the Respondent to furnish Applicant with further and better particulars of paragraph 55 of the Statement of Defence and Counterclaim filed by the Respondent. The Respondent resist the application for further and better particulars on the grounds that the said paragraph 55 is sufficiently detailed to inform the Applicant the basis of the allegation of fraud. The issue I have to resolve in this application is whether or not the object of the information requested by the Applicant for further and better particulars is to obtain particulars of the facts narrated by the Respondent in its pleadings at paragraph 55 of the statement of defence and counterclaim.
I have read the application and the various affidavits filed by the parties. I have also examined the pleadings filed by the Respondent. I have given regard to the written submissions filed by both parties. I have given thoughtful consideration to the principles governing applications of this nature. Regard has also been given to the relevant provisions of the High Court (Civil Procedure) Rules, 2004 C.I. 47. In defining the object of further and better particulars, Archer J (as he then was) in the case of SAMPA v SACKER  GLR 510-513, quoted Cotton L.J. in SPEDDING v FITZPATRICK (1888) 38 Ch. 410 as stating thus:
“The object of particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise..... The old system of pleading at Common Law was to conceal as much as possible what was going to be proved at the trial, but under the present system it is our duty to see that a party so states his case that his opponent will not be taken by surprise.”
In the latter case of WANYINARA v BASSAN  2 GLR 227, Edusei J, stated that:
“The whole purpose of pleading is to set out in a summary form his claim or defence so that the opposite party is not taken by surprise at the trial. The opposite party must come to court knowing the case he has to meet. It is on these principles that further and better statement of particulars will be ordered by this court.”
Lartey J, summarized the object or purpose of an application for particulars, in the case of QUANSAH v OFOSU  1 GLR 151 as follows:
“It is trite law that particulars of any matter stated in any pleading may be ordered by a court. The object or purpose of an application of particulars is to enable the Applicant to know or have a forestate of the case he anticipates to meet at the trial; that protects the parties from being taken by surprise; see EJURA v. LIMAN  GLR 683 Ch. D 410, C.A. Furthermore, obtaining particulars from an opponent limits the issue; an opponent is bound by his particulars and will not be allowed at the trial to go into any matter not fairly included therein. In the words of WATKIN WILLIAMS J in THOMPSON v BRILEY (1882) 47 LT 700, DC, particulars prevent surprise at the trial, and limit inquiry at the trial to matters set out in the particulars. They tend to narrow issues, and ought to be encouraged.”
In QUAINOO v NYAMEKYE  GLR 466-469, Sarkodee J, had this to say about the desired style of the basic pleadings in relation to particulars and their effect on the trial in general:
“The old system of pleading at Common Law which was to conceal as much as possible what was to be proved at the trial from an opponent is no longer the practice. Rather we now play with cards on the table; the object being to extend the range of facts of which particulars should be given or ordered.
Parties are thus under a primary obligation to give in their pleading all necessary particulars of any claims, defence or other matter pleaded. If this is not done the court is empowered to order the other party to serve further and better particulars of any such claim, or a statement of nature of the claim relied upon, or both; thus underlying the overriding principle in litigation that the trial ought to be conducted fairly, openly and without surprise and also to reduce coast; see SPEDDING v FITZPATRICK (1888) 38 Ch. D. 410, C.A.
By this practice the other side is informed of the nature of the case it has to meet as opposed to the mode in which the case is to be proved: see DUKE & SONS v WISDEN & CO. (1897) 77 L.T. 67. This has an added advantage of limiting issues and since a party is bound by his pleadings his hands becomes thus tied to the extent that he cannot at the trial, without special leave, go into matters he has not pleaded: see THOMPSON v BIRKLEY (1882) 47 L.T. 700, D.C. Particulars thus limit the inquiry at the trial and the generality of the pleadings. It must be stated however, that what particulars are to be given depend on the facts of each case. Of course, if the only object of the application for further particulars is obtain particulars of the evidence on the other side it should be refused as improper. But were the information asked for is clearly necessary to enable the Applicant properly to prepare for the trial it must be given even though in doing so some portion of the evidence on which the other party would rely to prove his case may be disclosed; see MILBANK v MILBANK (1900) 1 Ch. 376, C.A”
From these authorities and the provisions in Order 11 rule 8 and 12 of C.I. 47, I am of the view that where the necessary facts of any claim, defence or other matter pleaded by a party is not clear to the other party, or may create an ambiguity in the mind of the other party, or is vague, such that the nature of the claim of the pleading party is obscured in a way as to surprise the other party during trial, that other party is entitled to request for a clarification of those facts. The court will be enjoined to order such particulars to be provide in so far as it can determine that the object or purpose of the application for further particulars is not a strategy to obtain the evidence of the other party.
In the instant application, the Applicant requests for particulars as follows:
“That by paragraph 55 of the Defendant’s statement of defence and counterclaim, the Defendant alleged that Plaintiff committed fraud on the Defendant when it knowingly changed an amount of GH¢497,132.50 plus agency fee of GH¢3,913.75 to the EDC account for staff accommodation when no such accommodation was actually provided to EDC staff.”
It is the contention of the Respondent that the averment in paragraph 55 of the statement of defence and counterclaim is detailed enough to inform the Applicant of the basis for Respondent’s allegation of fraud.
It is noted that where a party alleges fraud, that allegation should be particularized in the pleadings. The fact that the Respondent has given some information on the alleged fraud does not satisfy the mode or manner fraud must be particularized. There is the need for the allegation of fraud to be particularized and itemized by the Respondent in its pleading.
It is only when the said particulars of fraud is provided by the Respondent that the Respondent’s pleading in paragraph 55 of the statement of defence and counterclaim shall be in compliance with Order 11 Rule 8(1) and 12(1) (a) of C. I 47 which provides:
Rule 8(1) “A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality
a) which the party alleges makes any claim or defence of the opposite party not maintainable; or
b) which, if not specifically pleaded might take the opposite party by surprise; or
c) which raises issues of fact not arising out of the proceeding pleading.”
Rule 12(1) “Subject to subrule (2), every pleadings shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words,
a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies.”
It is therefore essential for fraud to be pleaded and particularized; as was held in the case BANK OF WEST AFRICA v HOLDBROOK  GLR 164-170 that:
“To enable the Defendants to appreciate the nature of the case against them, to prevent them from being taking by surprise, to enable them to know what evidence ought to be prepared for trial, to limit and define the issues to be tried and to tie the hands of the Plaintiff so that he cannot without leave go into any matters not included, it is essential that the charges of fraud and misrepresentation must be pleaded with the utmost particularity.”
It is noted that where a party pleads fraud and does not particularize the fraud, the said pleading would not be deemed complete as the provisions in Order 11 rule 12 (1) is mandatory. It would be wrong therefore for the Respondent to decline the request to provide the particulars of fraud.
In the light of the authorities and the provisions in Order 11 rules 8 and 12 of C.I. 47, it would be proper to order further and better particulars to be provided by the respondent on its allegation of fraud as pleaded in paragraph 55 of the statement of defence and counterclaim. In the circumstance, I grant the application. Let the respondent provide the particulars of fraud pleaded in paragraph 55 of the statement of defence and counterclaim within 10 days from the date of this order and upon service on the applicant, it may amend its reply and defence to counterclaim, if it so desires, within 7 days.
The Applicant shall have its costs assessed at GH¢1,000.00 against Respondent.