WANYINARA vs. BASSAN [1972]DLHC2423

Date	1972-06-26
Suit No.
Citation No.	[1972]DLHC2423

EDUSEI J.

JAMES MERCER FOR THE APPLICANT.

J. K. ESSIEM FOR THE RESPONDENT.

[1972]DLHC2423
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													<main id="main" class="content" style="min-height: 60rem" >WANYINARA <o:p></o:p>vs. <o:p></o:p>BASSAN <o:p></o:p>[HIGH COURT,
SEKONDI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972]
2 GLR 277<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
26 JUNE 1972.<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">

JAMES MERCER FOR THE APPLICANT.<o:p></o:p>

J. K. ESSIEM 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
plaintiff is applying for further and better particulars of paragraphs (5) and
(16) of the statement of defence after her solicitor’s letter of such request
to the defendant’s solicitor had been turned down.<o:p></o:p><o:p>&nbsp;</o:p>Paragraph
(5) of the statement of defence states as follows:<o:p></o:p>“Paragraph
(4), (5) and (6) of the statement of claim are denied. The house in question is
the self-acquired property of the late Ekra Kobina brother of the late Adjua
Twintoh.” The plaintiff would like to know the way and manner the late Ekra
Kobina acquired house No. 33/11 Boundary Road, Sekondi, the subject-matter in
dispute. Paragraph (16) of the statement of defence also states:<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">“In
further answer to these paragraphs the defendant confirms that he bought the
house in question from the late Ekra Kobina with full knowledge of his family
and has been in possession ever since. The defendant denies that the plaintiff
has at any time, since the defendant took possession of the house, made any
claim to it before the institution of this action.”<o:p></o:p><o:p>&nbsp;</o:p>The whole
purpose of pleading is to set out in a summary form the material facts on which
a party relies for his claim or defence so that the opposite party is not taken
by surprise at the trial. The opposite party must come to court knowing the
case he has to meet. It is on these principles that further and better
statement of particulars will be ordered by this court.<o:p></o:p>In taking
paragraph (2) of the statement of defence I would ask: what are the facts on
which the defendant relies to say that house No. 33/11 Boundary Road, Sekondi,
is the self-acquired property of Ekra Kobina who sold the said house to the
defendant? The nature of self-acquisition of the house by Ekra Kobina must be
known to the opposite party, for merely saying that it was the self-acquired
property is not enough. Did Ekra Kobina build the house himself or did he buy
it from a third party by means of a deed of conveyance or according to
customary law or by an auction through a court’s order? The way and manner of
the acquisition must succinctly be stated in the pleadings, for the statement
that it was the self-acquired property of Ekra Kobina is a conclusion based on
facts and it is therefore a legal phenomenon but pleadings must contain facts
and not law. Having stated that it was the self-acquired property of Ekra
Kobina the defendant should have proceeded to give facts constituting how it
became the self-acquired property of his vendor. If this is not done, the
plaintiff will be kept in the dark as to how Ekra Kobina acquired house No.
33/11 Boundary Road, Sekondi.<o:p></o:p><o:p>&nbsp;</o:p>Thus in
Spedding v. Fitzpatrick (1888) 38 Ch.D. 410, C.A. where in an action to
restrain trespass on a road, the defendants pleaded that it was a highway, and
were ordered to amend their defence so as to show the mode or title in or under
which they claimed that the road had become a highway, the defendants amended
their defence alleging that the road had for so many years been used by the
public as of right and was a highway, having been dedicated to the public by
the plaintiff and her predecessors in title or some of them. On the application
of the plaintiff, it was held that the court will compel a party to give such
information as to the nature of his case as is required to prevent his opponent
from being taken by surprise at the trial. On appeal Cotton L.J. in his
judgment at p. 414 said:<o:p></o:p>