ADJOE vs. NYAKOH [1979]DLHC1020

Date	1979-01-25
Suit No.
Citation No.	[1979]DLHC1020

ANSAH-TWUM J.

MISS LUCY BLAY FOR THE PLAINTIFF-APPLICANT.

DAWSON FOR THE DEFENDANT-RESPONDENT.

[1979]DLHC1020
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													<main id="main" class="content" style="min-height: 60rem" >ADJOE <o:p></o:p>vs. <o:p></o:p>NYAKOH<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>&nbsp;[1980] GLR 58<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:
25 JANUARY 1979<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">

MISS LUCY BLAY FOR THE PLAINTIFF-APPLICANT.<o:p></o:p>

DAWSON FOR THE DEFENDANT-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">

ANSAH-TWUM J. <o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANSAH-TWUM J.<o:p></o:p>The
plaintiff, having on 14 December 1978, filed a writ of summons specially
indorsed, and, in which she claims, “the refund of the sum of ¢6,001 being
money the defendant made the plaintiff spend on his, defendant’s building being
constructed on plot No. 84, Tanokrom,” and the defendant having on 3 January
1979, entered a conditional appearance, she has since 8 January 1979 filed a
summons for judgment under Order 14, r. 2 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A). The summons for judgment came on for hearing on 22
January 1979 when learned counsel for the defendant-respondent took a
preliminary objection to the effect that under the High Court (Civil Procedure)
(Amendment)&nbsp; (No. 2) Rules, 1977 (L.I.
1129), and the relevant provisions in the The White Book, 1967, i e. The English
Supreme Court Practice, 1967, the summons for judgment under Order 14, rr. 1
and 2 is incompetent or premature, in that the plaintiff must have filed a
statement of claim which must have been served on the defendant before this
application for summary judgment. Counsel thus referred to the new order 14, r.
1 as substituted by the schedule to L.I. 1129, r. 1 which reads:<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">“1. Where
in an action begun by writ a defendant has been served with a statement of
claim and has entered an appearance, the plaintiff may apply to the Court for
judgment against him on the ground that he has no defence to a claim included
in the writ, or to a particular part of such a claim, or that he has no defence
to such a claim or part except as to the amount of any damages claimed.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Learned
counsel is of the view that the rule as quoted above is different from the rule
under the old Order 14 of L.N. 140A and that a separate statement of claim,
apart from the writ of summons, should have been filed and served on the
defendant before the application for summary judgment. It is, however, the
contention of learned counsel for the plaintiff-applicant, that the practice
and procedure under Order 14, rr. 1 and 2 of L.N. 140A have not been altered by
L.I. 1129, and that the plaintiff is entitled to proceed as she has done when
she now wishes to employ Order 14, rr. 1 and 2 for summary judgment.<o:p></o:p>It may be
necessary at this stage to refer to the old Order 14, r. 1 (a) as set out in
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A):<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">“1. (a)
Where the defendant appears to a writ of summons specially indorsed with or
accompanied by a statement of claim under Order 3, rule 6, the plaintiff may on
affidavit made by himself or by any other person who can swear positively to
the facts, verifying the cause of action and the amount claimed (if any
liquidated sum is claimed), and stating that in his belief there is no defence
to the action except as to the amount of damages claimed, if any, apply to a
Judge for liberty to enter judgment for such remedy or relief as upon the
statement of claim the plaintiff may be entitled to. The Judge thereupon,
unless the defendant shall satisfy him that he has a good defence to the action
on the merits or shall disclose such facts as may be deemed sufficient to
entitle him to defend the action generally, may make an order empowering the
plaintiff to enter such judgment as may be just, having regard to the nature of
the remedy or relief claimed.”<o:p></o:p><o:p>&nbsp;</o:p>I think
the distinction which learned counsel for the respondent is trying to make here
is that while under the old Order 14, r. 1 (a) of L.N. 140A, a writ of summons
may be specially indorsed with a statement of claim or may be accompanied by a
statement of claim, the new Order 14 as substituted by L.I. 1129 seems to talk
about an action begun by a writ of summons and the service of a statement of
claim thereafter. Is the new Order 14 therefore saying that a separate writ
must be filed and served, a statement of claim also served before appearance,
or is it saying that a writ can no longer be indorsed with a statement of
claim? I think this will materially depend upon what the rules will pass as a
sufficient statement of claim whether indorsed on the writ itself or served
along with the writ, or accompanied by it. I do not, in my view, think that the
new Order 14 does away with the practice whereby a writ of summons may be
indorsed with, or be served along with, or be accompani</main>