IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
SONIAG COMPANY LTD - (Plaintiff)
BOND FINANCIAL SAVINGS AND LOANS LTD - (Defendant)
DATE: 16TH JUNE, 2016
SUIT NO: CM/0050/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
PLAINTIFF REPRESENTED BY SONIA ANTWI
DEFENDANT REPRESENTED BY EMMANUEL NEEQUAGYE
FELIX QUARTEY, ESQ. FOR PLAINTIFF/RESPONDENT
K. FREDUA–AGYEMAN DANSO, ESQ. FOR DEFENDANT/APPLICANT
By this application Plaintiff seeks for leave to file a rejoinder to the Plaintiff’s reply and defence to his counterclaim. In an affidavit in support of this application the deponent has noted that particulars that ought to have been particularized in the statement of claim was not done and was accordingly raised in the statement of defence by drawing the attention of the plaintiff to it. Subsequently in plaintiff’s reply to the statement of defence and a counter claim, plaintiff has supplied those particulars. And that with the supply of those particulars, it thinks that the nature of its defence ought to shift in answer to the particulars now provided.
Defendant has vehemently resisted the application for a number of reasons. One that the application is unwarranted by the rules of court and only a calculated attempt to enable plaintiff substitute a new defence to the statement of defence filed by him and that if particulars had not been provided, defendant could have asked for better and further particulars. And again that if plaintiff was of the opinion that it needed to file any further pleadings it was entitled to apply for leave to amend the statement of defence.
It is provided by Order 11 Rule Rule 4 that
“No pleading subsequent to a reply shall be filed except with leave of the Court”.
What it means is that a rejoinder or any further pleadings being in the nature of an amendment or otherwise may be available only with leave of court as the plaintiff/applicant is seeking.
I must state that in terms of the counter claim by defendant, with a defence filed by the plaintiff, the defendant is entitled as a matter of right to file a reply to the defence to the counter claim. For it has always been the law as noted as far back in the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:
“a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.
See also Dotse JSC in the case of JASS CO. LTD v APPAU  SCGLR 269. And if the defendant intended to respond to any averment made in the defence to the counter claim, the defendant was the plaintiff and the plaintiff the defendant as far as the counter claim was concerned and need no leave to file any process.
I reckon that the present action of the defendant has become necessary due to what the defendant claims to be certain averments that have been made specifically in the reply for which he needs leave to respond. It is true that with the close of pleadings seven days after the delivery of a reply, a party who intended to file any further pleadings was to come for leave to file same, nonetheless that does not foreclose the right of a party to proceed for leave for the purpose of filing a rejoinder to averments made in a reply which a defendant has not had the opportunity to respond to same more so when those averments are being made for the first time in the reply.
If it is the claim of the applicant in seeking to bring to the fore all the issues in controversy but not by way of amendment but through an answer to the reply, I do not think that, I will be exercising my discretion judiciously if I were to refuse this prayer. This will not do any harm to the case of the plaintiff neither will it undue delay the trial of the action.
I accordingly grant defendant/applicant leave to file a rejoinder to plaintiff’s reply within five days failing which the order of the court lapses.
I will award cost of Gh¢400.00 in favour of the plaintiff.