FIRSTRUST SAVINGS AND LOANS LTD (PLAINTIFF) vs. JISLAH FINANCIAL SERVICES LTD (DEFENDANTS) [2018]DLHC7325

FIRSTRUST SAVINGS AND LOANS LTD (PLAINTIFF) vs. JISLAH FINANCIAL SERVICES LTD (D... [2018]DLHC7325

Date	2018-11-16
Suit No.	SUIT NO: CM/BFS/0575/17
Citation No.	[2018]DLHC7325

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

HENRIETTA ACKOW KWACHIE ESQ. FOR THE PLAINTIFF/RESPONDENT PRESENT.

NANCY AMPOFO EQ. FOR THE DEFENDANT/ APPLICANT PRESENT

[2018]DLHC7325
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													<main id="main" class="content" style="min-height: 60rem" >FIRSTRUST SAVINGS AND
LOANS LTD<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>JISLAH FINANCIAL
SERVICES LTD<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: CM/BFS/0575/17&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;DATE: 16TH NOVEMBER, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>HENRIETTA ACKOW KWACHIE
ESQ., FOR THE PLAINTIFF/RESPONDENT PRESENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NANCY
AMPOFO EQ., FOR THE DEFENDANT/ APPLICANT PRESENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The
instant motion, filed on the 31st July 2018, seeks an order of the
court to strike out from the plaintiff’s witness statement paragraphs 12 to 18
thereof on the grounds that those paragraphs contain evidence of matters not
pleaded in the statement of claim and also matters which emerged from the
pre-trial settlement attempted by the parties to the suit. Attached to the
motion paper is an affidavit in support as well as a supplementary affidavit.
The plaintiff/respondent is opposed to the application as shown by the
affidavit in opposition filed on the 11th October 2018.<o:p></o:p>The
applicant says that paragraphs 12 to 18 of the witness statement filed by the
plaintiff respondent on the 13th July 2018 contain evidence of
factual matters which the plaintiff had not pleaded in its statement of claim and
that some of the facts therein are also matters which came up during the
pre-trial settlement which the parties had in an effort to settle this case
amicably. The applicant therefore prays the court to strike out these offending
paragraphs from the witness statement. The response of the plaintiff/respondent
can be found in paragraphs 5, 6 and 8 of the affidavit in opposition in which
the respondent says that:<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
action by the Defendant seeking to strike out the Plaintiff’s Witness Statement
as containing matters not pleaded in its Statement of Claim is misconceived
since such matters were the subject of deliberations at the pre-trial
conference based upon correspondence which had previously been exchanged
between the parties.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
issues which were raised and deliberated upon at the pre-trial conference
necessarily formed part of the pleadings in the suit, on which the parties
deliberated upon towards an amicable settlement.<o:p></o:p>8.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
matters of which the Defendant complains about in the Plaintiff’s Witness
Statement do not constitute a surprise to the Defendant as they have previously
been deliberated upon at the pre-trial conference.<o:p></o:p>In
the opinion of the court, the depositions referred to above are a clear
admission of the concerns raised by the defendant that the witness statement
contains matters which have not been pleaded by the plaintiff. The defendant
admits that the paragraphs complained of contain matters discussed by the
parties at pre-trial. Such matters as are disclosed at pre-trial conferences
and which are not the basis of the claim or defence by either party but made
for the sole purpose of facilitating the settlement are, generally, not
supposed to be placed before the trial judge. For this reason Order 58 rule 4 sub-rule
5 of the High Court (Civil Procedure) Rules, 2004, CI 47 provides that:<o:p></o:p>Any disclosures made or documents presented at the
pre-trial conference shall be without prejudice.<o:p></o:p>It
is therefore wrongful for the plaintiff/respondent to seek to make that which
happened at pre-trial and which does not form part of its statement of claim a
subject of evidence at the trial.<o:p></o:p>The
court has painstakingly gone through the witness statement of the plaintiff and
particularly paragraphs 12 to 17 therefore and compared same with the statement
of claim filed by the plaintiff and the court finds that the paragraphs
complained off by the applicant are indeed not pleaded in the statement of
claim. Order 11 rule 7(1) is very clear on pleadings. It states that<o:p></o:p>7.&nbsp;&nbsp;&nbsp;Facts not evidence to be
pleaded<o:p></o:p>(1)&nbsp;&nbsp;Subject to this rule, and rules 10
to 12, every pleading shall contain only a statement in a summary form of the
material facts on which the party pleading relies for the claim or defence, but
not the evidence by which those facts are to be proved, and the statement shall
be as brief as the nature of the case admits.<o:p></o:p>It
means therefore that a party who wishes to give evidence on any fact essential
to the success of his case is bound to plead those facts.<o:p></o:p>The
court has pointed out in the case of ADEJUMO
v. ABEGUNDE AND ANOTHER [1965] GLR 499 that<o:p></o:p>