Admissions, Discontinuance, discovery and interrogatories Flashcards
ADMISSIONS ORDER 23
In pleadings filed in court a party may admit an allegation or a claim in the pleading of the other party, an admission therefore to a claim, whether wholly or partly, puts to an end the controversy that has brought the parties to court.
A party in whose favour an admission is made is relieved of the burden of proving the fact alleged in the pleading. An admission may also narrow the dispute and controversy and help in the speedy trial of the case.
O23 r1
Under Order 23, Rule 1, a party is required to admit the truth of all or part of an opponent’s pleading. The mode of the admission could be in a letter before or after the initiation of the action in court. A party may also request opponents to admit a particular fact or the authenticity of a document that is relevant to the proceedings in court.
• Ewusie Mensah v Ewusie Mensah & Another [1992] 1 GLR 271
The Effect of Admission
When a party admits a fact or the authenticity of a document, any party in whose favour the admission is made is entitled to apply for a judgment or an order in respect of the admission without waiting for a determination of the other issues joined in the action.
Where a defendant admits part of a liquidated claim, the plaintiff is entitled to apply for judgment on that part of the claim admitted. It is however important to note that such admissions should be clear without any reservations.
Social Security Bank v Biney [1997-2998] 2 GLR 886
Pomaa v Fosuhene [1987-1988] 1 GLR 244
How should an application for judgment on admission be made?
It has been held by the court that the application for judgment on admission should be y motion on notice and not oral and normally, must be made before hearing of the case commences.
Michelletti Polla v Crabbe
Withdrawal of an admission
O23 r5
An admission made in a pleading or upon a request to admit may be withdrawn on consent or with the leave of the court.
In practice it is noted that a party needs to give a very good reason, for example mistake, before the court will grant a party leave to withdraw an admission.
DISCONTINUANCE OF ACTION ORDER 17
A party who initiates a an action in court may discontinue a case for any reason – courts cannot force a party to litigate.
Plaintiff may decide to settle amicably, and the court will have nothing to do with the matter - Odompre v. Aryeetey
Republic v High Court, Accra; Ex Party Asakum Engineering & Construction Ltd.
Withdrawal of appearance
O17 r 1
A party who files an appearance in an action may withdraw the appearance at any time with the leave of the court.
METHODS OF DISCONTINUANCE
Method used, depends on the stage O17 r2 (1) - discontinuance without leave of the court Plaintiff may discontinue an action against def by filing a notice of discontinuance to withdraw any part of the claim at any time before or after being served with the def’s SoD provided the plaintiff does not take any other step in the action e.g. Filing a reply / amended SoC. Discontinuance cannot be raised as an estoppel.
METHODS OF DISCONTINUANCE
O17 r 2 (3) – discontinuance with leave of court
Where Plaintiff takes a fresh step after the service of the SoD, P may only discontinue with leave of the court.
Application for leave for discontinuance may be granted by the ct before during or after the hearing, or trial for a justifiable reason subject to the terms of cost.
O17 r 4 - costs awarded after discontinuance are a final order or the action will be stayed until costs are paid.
How is application for leave done?
Application for leave is by motion on notice supported by an affidavit. Ct may grant the order upon the application, and the action could be discontinued or struck out or impose conditions for the grant of leave including barring further litigation on the matter. Amoako v Kwan.
P could also be denied the liberty to relitigate if the ct is satisfied that n useful purpose will be served, or the action is frivolous, vexatious or an abuse of the court process, or a strong defence against the action – like action being statute barred Afeke v. Agble
Discontinuance with consent
– all parties in an action may agree to withdraw by filing a written consent to withdraw.
DISCOVERY AND INSPECTION O21
Party in an action may compel the disclosure of important documentary evidence from the opponent.
This is a pre- trial protocol to help ensure the early disposal of cases.
Discovery may be carried out in the following 3 ways:
1. Disclosure of important information in writing in the custody or possession or power of the opponent
2. Inspection of a disclosed writing for evidential purpose
3. The production of the writing to the adversary or the court.
When parties are unwilling to disclose
As parties in an action may be reluctant to disclose information that adversely affects their case the rules on discovery and inspection enables a party to request or compel the unwilling party to make disclosure of all relevant information in the party’s possession or control and allow inspection of such information.
Rationale: to eliminate surprises in civil trials and give the parties an even playing ground.
Mutual discovery – O21 r 1 & 2
After close of pleadings, a party shall within 14 days make and file for service on the other party documents which relate to any matter or issue between the parties to be discovered and for inspection.
Party entitled to discovery may at any time before the application for directions stage serve on the party required to make the discovery a notice requiring that party to make an affidavit verifying the list the party is required to make under O 21 r 2(1) – party served the notice shall comply within 14 days filing the affidavit and serve same on the party who filed the notice.
Discovery by court order
O21 r 2 (6)
• Court can make an order, on an application by a party; that full discovery of documents or matters specified in the order be made, or that discovery is not necessary.
• An order for discovery may be made after the application for direction stage if reasonable cause is shown – O21 r6 court will only order the discovery if satisfied that the discovery is necessary to dispose fairly the matter and will save cost.
