ECOBANK GHANA LTD vs. GOLDEN WEB LIMITED & 3 ORS [2019]DLHC6878

Date	2019-05-13
Suit No.	SUIT NO. TBFS/1/2019
Citation No.	[2019]DLHC6878

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

EBENEZER ADJEI BEDIAKO FOR YAW ESHUN FOR THE PLAINTIFF

AMPOMAH BERCHIE FOR FRANCIS KOFFIE FOR THE DEFENDANTS

[2019]DLHC6878
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													<main id="main" class="content" style="min-height: 60rem" >ECOBANK GHANA LTD<o:p></o:p>vs.<o:p></o:p>GOLDEN WEB LIMITED &amp;
3 ORS<o:p></o:p>[HIGH
COURT, KUMASI]<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">

SUIT
NO. TBFS/1/2019&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; DATE: 13TH MAY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EBENEZER
ADJEI BEDIAKO FOR YAW ESHUN FOR THE PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AMPOMAH
BERCHIE FOR FRANCIS KOFFIE FOR THE DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<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="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>During
the case management conference on 22nd June, 2018 before Her
Ladyship Mrs. Justice Angelina Mensah-Homiah, an objection was raised by
counsel for the plaintiff with regard to the propriety of a process filed for
and on behalf of the 1st Defendant namely: “1ST
DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM”. The said process was filed on
21st March, 2018. The basis of the objection was that the process was unknown
to the rules of court and accepted practice. Consequently, that process is said
to be void in law and the plaintiff is inviting the court to strike it out.<o:p></o:p>Legal Submissions<o:p></o:p>Counsel
for the plaintiff submits that the only process that a defendant may file after
a plaintiff has filed a Reply and Defence to Counterclaim is a “Rejoinder” and
that must be filed with leave of the Court. He contends that the document filed
by the 1st Defendant subsequent to the reply is not a Rejoinder. The document
was also filed without the leave of the Court and these make that document
void.Counsel cited the case of IDDRISU v AMARTEY [2009] SCGLR 670 and argued
that filing a document not warranted by the rules of civil procedure and
practice makes that document void ab initio and not even Order 81 of CI 47 can
cure it.<o:p></o:p>Counsel
for the defendant submits that Order 11 applies to counterclaim in the same way
as it applies to the plaintiff’s claim. In this regard, the counterclaimant,
who is an original Defendant is considered as the plaintiff to the
counterclaim; and the plaintiff in the substantive action is considered as the
defendant to the counterclaim.In the result, counsel submits that the
counterclaim should be treated as a statement of claim and the defence to the
counterclaim should be treated as a statement of defence. That, per the general
rules of pleadings, the defendant is entitled to file a reply in response to
the defence to the counterclaim, as it is essentially a statement of defence.
Counsel submits that IDDRISU v AMARTEY (supra) is not applicable to the
circumstances of this case.<o:p></o:p>The Issue<o:p></o:p>The
main issue here is whether the process filed on the 21st March 2018, termed
“1st DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM” is warranted by the
prevailing rules of civil procedure?<o:p></o:p>The Law<o:p></o:p>Order
82 rule 3 of CI 47 defines pleadings as:<o:p></o:p>“the formal allegations by the parties
to a lawsuit of their respective claims and defences with the intended purpose
of providing notice of what is to be expected at the trial.”<o:p></o:p>In
Poku v Frimpong [1972] 1GLR 230, CA Azu-Crabbe JSC explained the meaning
ofpleadings thus:<o:p></o:p>“The pleadings consist of the
statement of claim delivered by the plaintiff; the statement of defence, which
is the answer of the defendant; the reply, which is the plaintiff’s answer to
the defendant; and all subsequent pleadings, which are rarely delivered, such
as the rejoinder, the surrejoinder, the rebutter and surrebutter.”<o:p></o:p>The
Black’s Law Dictionary, 2nd edition also explained the meaning of pleadings as
follows:<o:p></o:p>“The pleadings are the formal
allegations by the parties of their respective claims and defenses, for the
Judgment of the court. Code Civ. Proc. Cal. 8 420. The individual allegations
of the respective parties to an action at common law, proceeding from them
alternately. In the order and under the distinctive names following: The
plaintiff’s declaration, the defendant’s plea, the plaintiff’s replication, the
defendant’s rejoinder, the plaintiff’s surrejoinder. the defendant’s rebutter,
the plaintiffs surrebutter; after which they have no distinctive names.
Burrill. The term “pleadings” has a technical and well-defined meaning. Pleadings
are written allegations of what is affirmed on the one side, or denied on the
other, disclosing to the court or jury having to try the cause the real matter
in dispute between the parties. Desnover v. Leroux. 1 Minn. 17 (Gil. 1).”<o:p></o:p>It
is clear from the sequence of processes filed in pleadings that a reply is
filed by a plaintiff to answer matters raised in the statement of defence and
it may also serve as the plaintiff’s defence to counterclaim. The next process
after a reply is a rejoinder where the defendant answers allegations in the
reply. Processes subsequent to the rejoinder are surrejoinder, rebutter and
surrebutter.<o:p></o:p>By
Order 11 rule 4, no pleading shall be filed subsequent to a reply except with
leave of the Court.<o:p></o:p>In
IDDRISU v AMARTEY [2009] SCGLR 670,the issue of whether the process termed
“Further Defence to Reply and Counterclaim” was warranted by the prevailing
civil procedure rules at the time came </main>