PLEADINGS

Question 1

What are pleadings?

Answer 1

Pleadings are the written statements of facts exchanged alternatively by parties within prescribed time frame aimed at ascertaining the issues that the parties would want the court to determine.

Or 82 r 3 definition:formal allegations by the parties to the suit of their respective claims and defenses. They provide notice of what is to be expected at trial

Question 2

What are the essence of pleadings?

Answer 2

• Defining the issues- lays out issues in contention or controversy in a case which trial is called upon to adjudicate. Facts narrated in pleadings define area of controversy can only be extended through amendment.
• Notice to parties- serves notice to the parties at to the case each should expect helping them to adequately prepare for trial by gathering relevant evidence to support or defend their respective claims.
• Record of issues- records issues that are eventually determined in a suit. As a check on parties who want to re-litigate in a suit that has been determined already. As a matter of public policy there must be an end to litigation.
• Assist in Case Management- assisting the ct in case management ensures speedy and expeditious trials. For instance, whether or not an expert should be appointed – prompt appointment of experts helps in early disposal of cases.

Question 3

What are the rules for drafting pleadings?

Answer 3

1. Must contain in summary all material facts (facts only) that a party wishes to rely on to prove/ defend their claim.
2. Cannot plead law, but may raise a point of law as to jurisdiction, capacity of a part or limitation O11 r11 (1):

a. Statute of limitation should be plead as a point of law, just as the principle of estoppel per ten judicatem- if a party fails to pleas the statute of limitation, it cannot be relied upon. Dolphyne (No3) v. Speedline Speedoring Co. &Another [1996-97]
b. Party may also plead a rule of customary law. (such a party under the rules is required to state the customary law rule with particulars to show the nature and effect of the customary law rule in question and the geographical area and ethnic group to which it relates)

Question 4

Rules for drafting pleadings cont’d

Answer 4

3. Pleadings must not contain evidence. Evidence is adduced in ct from the facts that are pleaded. Godka Group of Companies v. P.S. International Ltd [2001-02]
4. O11 r 8 in any pleading subsequent to a statement of claim, party shall specifically plead any matter which the party alleges, makes any claim or defence of the opponent nor t maintainable or matters which if not specifically pleaded may take the opponent by surprise. These include performance, release, any limitation provision, fraud or any fact showing illegality.

Question 5

Rules for drafting pleadings - necessary particulars

Answer 5

5. O11 r12 a party is required to give necessary particulars of any claim, or defence in the following matters:
   a. Particulars of misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies and
   b. Where a party’s pleading concerns mental capacity of another such as any disability of the mind, malice, fraudulent intention, particulars shall be given in the pleadings.

Question 6

WHAT IS THE RULE AGAINST DEPARTURE?

Answer 6

O11 r10 -parties are bound by the facts contained in their respective pleadings. Pleadings can only be changed by amendment.
A party shall not in any pleading, make any allegation of fact or raise any new ground or claim inconsistent with a previous pleading made by the party. Parties are bound by the facts in their pleadings and in giving evidence, they cannot testify as to facts which are not contained in their pleadings.
Cases: Hammond v. Odoi [1982/83], Kla v. Phoenix Insurance co. Ltd. [2012], Nyamash v. Amponsah [2009]

Question 7

What is the rule in Abowaba v. Adeshina [1946]?

Answer 7

Principle: parties are bound by their pleadings. If a material fact that ought to have been pleaded was not pleaded, and evidence is lead at trial and it is not objected to, the ct will consider it in determining the issue in dispute, provided the evidence is admissible.
Where evidence is inadmissible theft is under a duty to expunge such evidence whether or not it is objected to or not.
Cases:
- Akuffo Addo v. Catheline [1992],
- In Re Okine (decd.) Dodoo v. Okine [2003/4]

Question 8

What is the form of pleadings?

Answer 8

• Name of Court
• Title of the action and suit number
• names of the parties and their occupations/residential addresses.
• Description of the pleading e.g. State of defense
• Facts to be narrated should ben divided into paragraphs and numbered consecutively.
• Dates, sums and numbers in the pleading should be expressed in figures, words or both
• Lawyer’s address if party appears through a lawyer
• dated and signed by lawyer who settled it or the party if unrepresented.
• Addressed to the Registrar of the Court and opponent/his lawyer.

Question 9

On what grounds can a pleading be struck out?

Note: Order 11 r 18

Answer 9

I. Pleadings discloses no reasonable cause of action or defence.
II. Scandalous, vexatious or frivolous
III. Seeks to prejudice, embarrass and delay fair trial of the action
IV. An abuse of ct process (Order 1 r 2)

• After striking out the pleading, the court may order the action to be stayed or dismiss the pleading or enter judgment.
• Writ of summons or petition could be struck out on any of the grounds – Okofoh Estates ltd. V. Modern signs Ltd

Question 10

Is evidence admissible when striking out a pleading?

Answer 10

When a party applies to strike out a pleading, because it discloses no reasonable cause of action or defence, no evidence is admissible.

-The issue is considered on the face of the pleading, no evidence in the form of an affidavit is required. Ghana Muslims Representative Council v. Salifu. Harley and Ejura Farms.

Question 11

Can an application to strike out a pleading be brought at any stage of the proceedings?
Order 11 r 18

Answer 11

Yes. Although an application to strike out pleadings can be struck out at any stage of the proceedings, such applications in practice should be brought promptly when the offending pleading is served.
Power to strike out a pleading or part of it is discretionary and must be exercised fairly and taking all circumstances of the case into consideration. Gbenartey & Glie v. Netas properties & investment & others [2015/16]

Question 12

DELIVERY OF PLEADINGS

Answer 12

Statement of Claim must be served together with Writ of Summons if not Def may apply to ct to dismiss action of P if Statement of Claim not served with the writ of summons. O11 r 1(2).

Def who files an appearance and intended to defend an action, shall within 14 days time file a defence for service on P
Where P is served with a defence P shall file a reply if necessary 7 days after service.

NB: *no pleadings shall be filed after a reply except with leave of the court *

Question 13

Can Pleadings be filed during the legal vacation?

Answer 13

Yes: Or 80 r 2 pleadings may be filed during the legal vacation, but time does not run.
Time for other processes other than pleadings do run such as filing a notice of Appearance, notice of Appeal and Written Submissions

Question 14

CLOSE OF PLEADINGS
ORDER 11R 14 &19
ORDER 32 R 2

Answer 14

Pleadings close at the expiration of seven days after the service of reply or where no reply but only a defence to the counterclaim then pleadings close after service of defence to the counterclaim.
If no reply/ defence to counterclaim is served, then pleadings shall close 7 days after service of defence
*Pleadings shall close, notwithstanding whether a request or an order for particulars being made and awaiting compliance.

Question 15

Application for directions

Answer 15

One month after close of pleadings P shall file notice of Application for Directions to be served in all parties – O32.
Rule provides that if plaintiff fails to apply for directions, then Def may apply for directions or may apply for the action to be dismissed.

The application for dismissal by the Def – the ct will either dismiss the P action or deal with the application as if it was an application for directions.

Question 16

STATEMENT OF CLAIM

Answer 16

• Must be a summary of all material facts which P relies to establish his claim. Facts alleged must disclose an accrued cause of action in every P and liability in every Def. Mordor v. Kuma [1998/99]
• Must indicate whether the relief or remedy sought against Def is jointly, or jointly and severally. All alternative claims must be stated clearly in the SoC, and all claims against Def must first be endorsed on the Writ.

-Costs need not be specifically claimed on the SoC. Reliefs endorsed on the Writ must be repeated on the attached SoC otherwise it will be deemed as abandoned. Unilever Ghana ltd. V. Kama Health Services [2013-2012]
The nature of the relief sought must arise from the SoC – facts pleaded in the SoC must disclose a cause of action giving rise to the claim, relief or remedy.

Question 17

Requirements for some Specific Claims

Answer 17

O57 r 3 (1) – P in an action for libel or slander shall give particulars of the facts and the matters relied on in the claim that the matter or word complained of is defamatory.
O59 r 3 – Mortgage or money lenders action – P shall provide particulars as stated in O59 r 3.
O66 r 40 – Probate action, where interest of Def is in dispute; p must state in the SoC that he denies the interest of Def.

Question 18

STATEMENT OF DEFENCE

Answer 18

Shall be filed within 14 days of filing Appearance, unless served with an application for summary judgement, the Def can only file defence after determination of summary judgement, or being granted leave by the ct. Def will then file within 14 days of order or such specific time determined by the ct.

Question 19

General rules on preparing defence

Answer 19

In answering the allegations in the SoC may:

a. Admit some or all of the facts in the claim, any fact not specifically denied will be denned to have been admitted. I 23 r6 (2) p can take judgement on admitted facts without waiting for determination of any other question.
b. Specific denial of any point in the claim, if denied generally, def will be deemed to have admitted the fact O11 r13 (3). Exception – where Def is a person under disability O5 r 7 failure to deny a fact specifically will not amount to an admission.
c. Must not make evasive denials, must answer the substance of the allegation contained in the SoC.
d. General traverse may be used at the beginning or end of the SoD to deny material fact the Def inadvertently omitted used to fill the gap. Ansah v. Busanga and Brutuw v. Aferiba

Question 20

CONFESSION AND AVOIDANCE

Answer 20

Def admits the facts contained in the SoC and in turn alleges fresh facts which give an answer to the claim. Eg. Frustration of contract or contributory negligence.
Def May also admit facts alleged by P and raise a point of law absolving Def from liability; like the matter being statute barred.

Question 21

Points of law to be pleaded in confession and avoidance

Answer 21

i. Frustration of contract
ii. Contributory negligence
iii. Statute of limitation
iv. Laches and acquiescence
v. Force majeure (acts of God/ acts of State)
vi. Red Judicata (already adjudicated)

Question 22

Defence of set-off

Answer 22

For the recovery of a liquidated Claim, def who has a cross claim for may include it in the SoD as a set-off against P’s Claim.
To claim this right of set-off,
It must be specifically pleaded in the SoD
it must exist between the same parties and in the same rights and capacities.
It must relate to the sum of money claimed on the writ and must if established, extinguish the amount or reduce the amount.
Set-off is a defence and where the amount is beyond the claim, then a counterclaim may be filed. A counterclaim is a fresh action.

Question 23

Defence of Tender

Answer 23

Tender before action – where in a liquidated Claim, Def makes the effort to settle the amount due before action is taken against him or her. This is a common law defence applicable only to liquidated claims
Def must show:
That the amount owed was tendered and rejected by P, and following the rejection, the amount has been paid into court and notice of payment given to P.

Question 24

REPLY

Answer 24

• Main objective is to give answers to specific matters pleaded in the SoD, for instance where issues as to jurisdiction and capacity are raised in the SoD.
  P may allege facts already stated in SoC, but P is not allowed to set up an entirely new claim, or cause of action which is not already contained in the writ or SoC.
  Odoi v. Hammond [1971]
• Shall be filed by P if necessary, 7 days after SoD is served. If no reply filed, there shall be a joinder if issues on the SoD.
• A reply in necessary where a counterclaim is filed – defence to counterclaim claim must be incorporated in the Reply. In Re Ashalley Botwe Lands; Agbosu & Others v. Kotey & others

Question 25

REJOINDER

Answer 25

Under O11 r14 – rejoinder may not be filed except with the leave of the court

Question 26

DEFAULT OF PLEADINGS

Answer 26

Where Def has entered appearance but fails to file a defence within the prescribed time, P shall apply for judgement in default of defence. This shall be on Notice to the Def.
O7 r12 for a judgement in default of Appearance or defence to be granted, there must be evidence that bother the writ of summons and SoC were served on the Def with the particulars of service.
Nature of judgement to be entered depends on the claim endorsed on plaintiffs’ writ.

Question 27

Maritime Action

Answer 27

P can apply for judgement upon filing an affidavit indicating that no defence has been served by Def, as well as an affidavit verifying the facts on which the action is based and exhibiting a copy of the SoC.
O62 r15 – general rules on the application for judgement in default of Appearance and defence do not apply to Maritime Action.
O62 r 15 – ct may set aside or vary any default judgement entered in a Maritime action.

Question 28

Probate Action

Answer 28

Default action whether in appearance or defence are not allowed in Probate actions. Where the Def is in default P must apply for leave to set down matters for hearing as if the Def has appeared.

Question 29

SETTING ASIDE DEFAULT JUDGEMENT Or 13r8

Answer 29

Ct May on an application by the party that the default judgement is entered against, set aside or vary the judgement on such terms as it deems fit.
There is no time limit for such application but must be made within a reasonable time upon the entry of judgement.
The court before setting aside a judgement will consider whether or not the party applying has a good defence to the action or a useful purpose will be served by setting aside the judgement.

Question 30

COUNTERCLAIMS Or 12

Answer 30

A counterclaim may be brought be a Def who has a claim or is entitled to a remedy or relief, the counterclaim shall be added to the SoD and must be brought within a pending action. Progressive Imports Ltd. V. Muller –ct refused to set aside a summary judgement to allow a defendant to file a counterclaim; after the ct had entered summary judgement, there was no action pending to entitle the Def. To file a counterclaim.
The counterclaim must be a claim which the Def could have sued as plaintiff in a separate action.
The court which P has initiated the original action must have jurisdiction for the counterclaim.

Question 31

Counterclaims (cont’d)

Answer 31

Counterclaim is an independent cross action that may be pursued on its own.
Although judgement is given to P, or P’s action may be struck out, stayed or discontinued, def who has a counterclaim may still pursue the action against P whose action has been struck out.
Where Def proves a counterclaim against the claim established by P, and there is a balance in favour of either party, the ct may give judgement for the balance.
Def becomes P in a counterclaim and can do anything original P can do in an action.
P need not file appearance to a counterclaim because P is already a party in the action, although for all intents and purposes, a counterclaim is treated as a writ of summons to which the P/Def must file a defence within 14 days of being served.

Question 32

What is the difference between a counterclaim and a set-off?

Answer 32

While a Counterclaim is a fresh action, a set off is a defence.
A set-off must either extinguish or reduce the claim, where however it is beyond the claim then a Counterclaim may be filed instead of a defence of a set-off.

Question 33

COUNTERCLAIM AGAINST ADDITIONAL PARTIES

O12r5

Answer 33

If D makes a counterclaim against P and any other person, whether a party to the action or not is liable to Def with P, with respect of the subject matter of the counterclaim – Def may join the other person as a party against whom the counterclaim is made.
A party enjoined to the counterclaim should be shall have their name on the title to the action, and serve the party enjoined a copy of the counterclaim together with the writ of summons and the pleadings served in the action.
As counterclaim is incorporated with the defence the same time limits apply.

Question 34

COUNTERCLAIM AGAINST ADDITIONAL PARTIES

O12r5(cont’d)

Answer 34

Where counterclaim is served on a person not already a party to the action, counterclaim shall be endorsed with a notice addressed to that party, stating the effect of O9 r 1 and 2, effect of entering appearance, or non-entry of appearance. The notice must also specify the Court Registry where the enjoined party may file appearance to the Counterclaim.
O12 r 5(7) and (8) the enjoined party once served with the counterclaim becomes a party to the action and shall file Appearance to the Counterclaim.

The ct may order separate trials if the counterclaim joins two or more causes of action and it appears to the ct that the joinder of the causes of action may embarrass or delay the trial.
Any of the other armies whom a counterclaim is made, may apply to the ct to order separate trial or for the counterclaim to be struck out. O12 r 7