AKYER vs. GHANA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHER [1961]DLSC1968

Date	1961-07-10
Suit No.
Citation No.	[1961]DLSC1968

ADUMUA-BOSSMAN JSC

OLLENNU JSC

CRABBE JSC

KORANTENG-ADDOW FOR THE APPELLANT

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS

[1961]DLSC1968
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AKYER

[SUPREME COURT]

[1963] 2 GLR 291

DATE: 10TH JULY, 1963.

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COUNSEL:&nbsp;&nbsp;

KORANTENG-ADDOW
FOR THE APPELLANT.

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ADUMUA-BOSSMAN, OLLENNU AND CRABBE
JJ.S.C.

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&nbsp;

[His lordship stated the facts as set out in the headnote and
continued:] Now before passing on to the trial and considering, the evidence
which was adduced by the parties and the trial judge’s findings and ultimate
decision, it seems to me to be necessary to ascertain and be precise about, the
material allegations on which the plaintiff based or founded the reliefs
claimed, which allegations, of course, are those which he had to establish by
his evidence. As to this, undoubtedly one material allegation which the
plaintiff pleaded as entitling him to the reliefs he claims was the judgments
delivered in an action which his family instituted against the second defendant
for a declaration of title to the premises in dispute. It is clear, however,
that proof of the judgments does not entitle the plaintiff to the reliefs
sought against the first defendants, because the first defendants had acquired
rights from the second defendant, before the commencement of the action against
the second defendant in which the first defendants were not parties, which
resulted in the judgment against the second defendant. That is the decision of
the learned trial judge who referred to the relevant authorities: the English
case of Mercantile Investment and General Trust Company v. River Plate Trust,
Loan, and Agency Company,1 Abbey v. Ollennu,2 a local case, and Okunubi v.
Assaf,3 a Nigerian case; and it cannot be disputed that, on the premises that
that which the plaintiff relied on to establish his case was the judgments
pleaded only, as was undoubtedly the case so far as the second defendant was
concerned, the learned judge’s decision was correct and sound.

It is argued however that the plaintiff averred in paragraph 1 of
his statement of claim that, “the leasehold property on plot No. N.T.E.R. 134,
Kumasi, was built by members of the plaintiff’s family including the second
defendant,” and therefore founded his claim to the declaration sought in the
writ on that allegation. It is a possible view, so let it be accepted.

In that case note has to be taken of the fact that the allegation
was expressly denied by the first paragraph of the statement of defence in the
following terms: “Save as is hereinafter expressly admitted defendants deny
each and every allegation of fact contained in the plaintiff’s statement of
claim as if the same is set out in detail and traversed seriatim.” It is then
contended that the plea in that form offends against Order 19, r. 18 of the
Supreme [High] Court (Civil Procedure) Rules, 19544 which provides that: “It
shall not be sufficient for a defendant in his defence to deny generally the
grounds alleged by the statement of claim . . . but each party must deal
specifically with each allegation of fact of which he does not admit the truth,
except damages.” It is finally contended that by the operation of Order 19, r.
14 of the above stated rules which provide that: “Every allegation of fact in
any pleading . . . if not denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the opposite party, shall be taken
to be admitted,” and inasmuch as the allegation contained in paragraph 1 of the
statement of claim was not properly traversed as required by Order 19, r. 18,
that allegation contained in paragraph 1 of the statement of claim that the
building on the plot was constructed by the members of the plaintiff’s family
“shall be taken to be admitted”; that from this, it follows that no necessity
arose for the plaintiff to adduce any evidence towards proof of that
allegation.

It seems to me, however, that that contention stems from a
misapprehension or misconception as to the true meaning and scope of the
provisions of Order 19, r. 18 of our local rules, corresponding to Order 19, r.
17 of the English rules. In comments and explanations on the provisions of the
English rule 17 which can be seen in several of the books, dealing with
procedure (e.g., the Annual Practice or White Book, Bullen and Leake, and
Atkins Forms and Precedents in Civil Proceedings), it is explained quite
clearly, firstly, that the phrase or terminology “deny generally” appearing in
rule 17 of Order 19 (i.e., the provision that: “It shall not be sufficient for
a defendant ... to deny generally”), is an illusion or reference to, and only
means, that “compendious form of traverse [under the old system of pleading]
... known as [pleading] the ‘general issue’ which had the effect of putting the
plaintiff to the proof of all the facts necessary to support his cause of action,
and had the further vice of enabling the defendant to give in evidence facts
which might take the plaintiff by surprise” (see Atkin’s Encyclopaedia of Court
Forms and Precedents in Civil Proceedings, Vol. XIII, p. 172). Secondly it is
further explained that, adopting the explanation in Atkin (supra pp. 172-173):
“It has become a common practice, at any rate in the King’s Bench Division, to
use a traverse in the form that. . .’save as aforesaid, the defendant denies
each and every allegation of fact in the statement of claim as if the same has
been set forth seriatim and specifically traversed.” Similar explanation is
given in Bullen and Leake’s Precedents of Pleading (11th ed.), p. 667, in a
footnote, that: “where the defendant denies every single allegation contained
in the Statement of Claim, he is not bound to copy out each allegation and deny
it specifically; it is enough that his defence makes it quite clear that every
single allegation is denied.”