SAMPA vs. SACKER [1964]DLHC1952

Date	1964-08-14
Suit No.
Citation No.	[1964]DLHC1952

ARCHER J.

S. M. CUDJOE FOR THE APPLICANT.

G. KORANTENG-ADDOW FOR THE RESPONDENT.

[1964]DLHC1952
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													<main id="main" class="content" style="min-height: 60rem" >SAMPA<o:p></o:p>&nbsp;vs. <o:p></o:p>SACKER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 510<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
14 AUGUST 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. M. CUDJOE FOR THE APPLICANT.<o:p></o:p>

G. KORANTENG-ADDOW FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>This is
an application by the defendant for further and better particulars under Order
19, rule 7 of the Supreme [High] Court (Civil Procedure) Rules, 1954.1 It seems
strange that although Order 19, r. 8 provides that before applying for
particulars by summons or notice, a party may apply for them by letters, the
applicant has sought to apply in the first instance to the court. At the time
of the hearing of the application I had every reason to strike off the
application but my hand was tied down by the use of the word “may” in rule 8.
Nevertheless I wish to stress that in future unless rule 8 is complied with in
the first instance, I shall not consider any application to the court under
rule 7 for further and better particulars.<o:p></o:p><o:p>&nbsp;</o:p>Indeed,
the practice in England as stated in the White Book is that the master will
insist that the applicant should apply in the first instance to the other party
by letter. I am convinced that that has been the practice in Ghana. The
equivalent of the Ghana rule 7 in the English Rules also uses the word “may”
but in practice the proper step is to apply in the first instance by letter.<o:p></o:p><o:p>&nbsp;</o:p>Order 19,
r. 4 provides that every pleading shall state material facts only and not the
evidence by which they are to be proved. Other 19, r. 9 also provides that:
“Particulars of a claim shall not be ordered under Rule 7 to be delivered
before defence unless the Court or judge shall be of opinion that they are
necessary or desirable to enable the defendant to plead or ought for any other
special reason to be so delivered.” I have considered the particulars asked for
in the application very carefully and I am unable to say with confidence that
the particulars sought are necessary to enable the applicant to deliver his
defence or that there are special reasons for their delivery under an order of
this court. Learned counsel for the applicant sought to rely on the cases of
Milbank v. Milbank,2 Marshall v. Inter-Oceanic Steam Yachting Co.3 and Spedding
v. Fitzpatrick.4 I cannot find any principles of the law of pleading in these
cases which justify the applicant in making this application. In Spedding v.
Fitzpatrick Cotton L.J. stated5:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>In the
present suit, the statement of claim has given the applicant sufficient
information to enable him to prepare his defence. All the particulars requested
by the applicant are matters of evidence by which the respondent may seek to
prove his title. Order 19, r. 4 clearly prohibits the inclusion of matters of
evidence in pleadings and the respondent is therefore under no obligation to
provide the particulars sought by the application.<o:p></o:p><o:p>&nbsp;</o:p>The
particulars sought are by their very nature interrogatories without the
question mark at the end of each sentence. In Lister v. Thompson6 the court
refused to order further particulars, describing the particulars required as a
series of interrogatories and oppressive and an attempt to evade the practice
and rules of the court.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant has also asked the respondent to confirm whether or not the necessary
consent and concurrence of the minister has been obtained under the Local
Government Ordinance.7 This Ordinance has</main>