AHMED MUDDY ADAM vs. FRANK NUAMAH [2020]DLSC9389

Date	2020-02-05
Suit No.	CIVIL APPEAL NO: J4/68/2019
Citation No.	[2020]DLSC9389

DOTSE JSC (PRESIDING)

GBADEGBE JSC

PWAMANG JSC

DORDZIE (MRS) JSC

PROF. KOTEY JSC

BEN TAIWO ADEKANLA FOR THE PLAINTIFF/RESPONDENT/APPELLANT

KWAKU OSEI ASARE FOR THE DEFENDANT/APPELLANT/ RESPONDENT WITH HIM ABIGAIL ANTWI

[2020]DLSC9389
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													<main id="main" class="content" style="min-height: 60rem" >AHMED MUDDY ADAM<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>FRANK NUAMAH<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL
APPEAL NO: J4/68/2019&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;
DATE: 5TH FEBRUARY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BEN
TAIWO ADEKANLA FOR THE PLAINTIFF/RESPONDENT/APPELLANT <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

KWAKU OSEI ASARE FOR THE
DEFENDANT/APPELLANT/ RESPONDENT WITH HIM ABIGAIL ANTWI<o:p></o:p>

</div>CORAM:
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>DOTSE
JSC (PRESIDING), GBADEGBE JSC, PWAMANG JSC, DORDZIE (MRS) JSC, PROF. KOTEY JSC <o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>GBADEGBE
JSC <o:p></o:p>read
the following judgment of the Court:<o:p></o:p>The
question for our determination in the exercise of our ultimate appellate
jurisdiction is whether the decision of the learned justices of the
intermediate appellate court which reversed the decision of the trial court in
the matter herein which turns upon the practice and procedure relating to the
summary disposal of actions under the Rules of Court was a correct exercise of
their discretion. This is a point of procedural importance related to the
authority of courts to summarily dispose of actions before them without going
through a full-scale trial. In our opinion, having regard to the increasing
number of appeals emanating from decisions rendered by trial judges and the
intermediate appellate court which unfortunately reveal a misunderstanding of
the scope of the rules and the practice relating to it, we would like to
reiterate the exceptional nature of the power conferred on courts to summarily
dispose of actions founded on objections taken to pleading. Having given
anxious consideration to the issues raised in the matter herein, we are of the
opinion that the appeal should be allowed. Examining the record of appeal in
the matter herein, we think that it was without precedent and as we desire not
to encourage it, we straightaway express our disapproval of what was an unusual
attempt by the learned justices of the Court of Appeal to engage in a
preliminary hearing of an action based on affidavits. Turning to the parties
before us, we would like for reasons of convenience in this delivery to refer
to them simply as plaintiff and defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
action herein was initiated before the High Court when the plaintiff issued the
writ of summons herein to set aside a prior judgment of the High Court on
grounds of fraud, misrepresentation and breach of the right of hearing. After
service of the processes initiating the action on the defendant, he entered
appearance conditionally. Moments after filing the said appearance, the
defendant filed a statement of defence and an application to strike out the
statement of claim and dismiss the action. Having filed a defence to the action
and taken an objection to the offending pleading by the filing of the
application on which these proceedings are founded, the conditional appearance
lost its efficacy and was dissolved into an absolute appearance such that the
considerable submissions urged on us related hereto is of no moment to the
determination of the matter herein. The grounds on which the defendant’s said
application was based were said to be “for disclosing no reasonable cause of
action, frivolous and vexatious; and for being an abuse of the processes of the
court.” After hearing the parties on the objection, the learned trial judge in
a ruling contained at pages 260-265 of the record of appeal dismissed the
application. An appeal to the Court of Appeal was allowed resulting in the
plaintiff appealing to us. <o:p></o:p><o:p>&nbsp;</o:p>The
grounds of appeal filed in the matter are set out at pages 451 to 453 of the
record of appeal and referred to in the respective written briefs of the
parties. As the decision of the learned trial judge was overturned by the
leaned justices of the Court of Appeal, our determination of the question set
out above necessarily means that in our view the learned trial judge approached
his determination in accordance with the settled practice of the Court whiles
the Court of Appeal applied the wrong principles. Having answered the question
posed for our determination in the opening paragraph of this delivery, we now
proceed to provide our reasons therefor.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;In the first place, under the Rules of Court,
a party who applies to dismiss an action on the ground that the pleading
discloses no reasonable cause of action is deemed to admit the truth of the
averments contained in the statement of claim. See: Ghana Muslim Representative
Council v Salifu [1975] 2 GLR, 246. Although the said decision was based on
order 25r 4 of the old rules contained in LN 140A, we are of the opinion that
the new rules expressed in Order 11 rule 18 (1) (a) and that contained in the
repealed legislation are expressed in substantially the same words and as such
as a rule of construction, the same meaning must be given to them as indeed,
has been pronouncements of our courts on the point. See: Jonah v Kulendi &amp;
Kulendi [2013-2014] 1 SCGLR 272.&nbsp; So
strict is the rule construed that Order 11 rule 18 (2) expressly precludes
affidavit evidence from being resorted to in applications made under sub-rule
1(a). <o:p></o:p>&nbsp;<o:p></o:p>In
our considered opinion, as sub-rule 1(a) of Order 11 rule 18 precludes
contr</main>