Mallamibrahim Danso v Mensah Danso and Another (EAS/KF/HC/E1/175/2025) [2025] GHAHC 118 (10 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE KOFORIDUA HELD ON TUESDAY THE 10TH OF JUNE 2025 BEFORE HERLADYSHIPJUSTICE JENNIFERAHMED Suit No. EAS/KF/HC/E1/175/2025 MALLAMIBRAHIM DANSO PLAINTIFF/RESPONDENT VRS 1.KWABENAMENSAHDANSO 2.EMMANUELDANKWA DEFENDANTS/APPLICANTS RULING In an article entitled "Fair Hearing in Judicial Adjudication in Nigeria," published in the UNIZIK Law Journal Vol. 14, 2018, the opening profound statement that aligns with my decision is vividly encapsulated by the following quotation: "The right tofair hearing hasbeen said to beasoldasmankind." INTRODUCTION This ruling is informed by the application by the defendants to dismiss the plaintiff’s suit on the grounds that it discloses no reasonable cause of action, as per Order 11 Rule 18(1)(a) of the Civil Procedure Rules, 2004 (C.I. 47). After careful consideration 1 of the pleadings, arguments presented, and relevant case law, I find that the applicationdoesnotmeet the requisite threshold for dismissal. PRELIMINARYPOINT OF LAW Before delving into the substantive issues, I feel compelled to address a preliminary matter concerning the procedural propriety of the defendants' actions, which keeps recurring in many applications I have encountered while sitting as a Judge. The defendants filed a conditional appearance on the 29th of May 2025 and subsequently sought to move the instant motion under Order 11 Rule 18(1)(a). However, it is important to note that the wording of Order 9, which deals with applications to set aside writs or service thereof, does not align with the provisions ofOrder11Rule 18. Order9Rule 7(1) provides that: “Adefendantmayfile aconditionalappearance.”¹ This provision enables a defendant to appear in court without admitting to the claims; the intention or purpose is to provide a mechanism for the defendant to contest the proceedings without waiving his or her right to challenge the writ itself. However, I must emphasise that this rule does not relate to the substantive issues beforeme concerning thedismissal ofaclaim. Furthermore,Order9Rule 8provides: “Adefendantmayapply to theCourtfor anorder to— (a)set asidethewrit or service ofthewrit; (b)declare that thewrit or notice ofit hasnot been served onthedefendant;or (c) discharge any order that gives leave to serve the notice on the defendant outside thecountry.”² 2 The above provisions illustrate the procedural options available to a defendant to challenge the writ or service, but they do not in any way address the substantive claims presented in the plaintiff’s action. Incontrast, Order11Rule 18(1)(a) provides: “The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that it discloses no reasonable cause of actionor defence.”³ This rule specifically empowers the court to strike out pleadings that do not present a valid basis for a civil suit, which aims to prevent the court's resources from being misused oncases that, ontheir face, lack any merit. The procedural rules of our courts do not necessitate the filing of a conditional appearance when the defendant's intention is toseek a dismissal based onthe lack of “a reasonable cause of action” as provided for under Order 11 Rule 18(1)(a). Therefore,the defendants' seeming reliance on the proceduralrequirements of Order 9inconjunction withOrder11is misplaced. It is myview thatthe defendants should have filed their application directly under Order 11without the preliminary step ofa conditionalappearance. This distinction is not merely academic; it underpins the necessity for clarity in proceduralcompliance and the efficient administration of justice. The court must not allow procedural technicalities to obfuscate the substantive rights of the parties involved. Having sufficiently dealt with the preliminary issue above, I will now address the substantive ruling asfollows: In considering the substantive application to dismiss the plaintiff’s suit, it is essential to evaluate whether the pleadings disclose a reasonable cause of action. The test for 3 determining this is whether, assuming the facts as pleaded are true, the plaintiff wouldbe entitled torelief. In arguing the application, the defendants submit that certain paragraphs of the plaintiff's statement of claim (specifically paragraphs 12, 13, and 14) demonstrate that there is an existing judgment binding the defendants, which, according to the defendants, negates any cause of action. However, a careful analysis reveals that the plaintiff's contention is not merelyan attempt tore-litigate a settled matterbut rather toestablish aclaim based onthe defendants' allegedunlawful actions post-judgment. To make a definitive determination of the matter based solely on the face of the pleadings, it is pivotal that the defendant intending to invoke Order 11 Rule 18(1)(a) must have filed a statement of defence. The rationale behind this requirement is that the court requires a full face of pleadings from both parties to adequately assess whether the plaintiff’s action discloses no reasonable cause of action within the intendment of the rule. This is especially true given the established and numerous legal precedents indicating that no affidavit evidence is required for an application under Order11Rule 18(1)(a). The principle that a defendant must file a defence as a condition precedent to invoking Order 11 Rule 18(1)(a) is well established in case law. In Ampratwum Manufacturing Co. Ltd v. Divestiture Implementation Committee⁴, the Supreme Court accentuated the necessity of presenting a complete picture of the claims and defences involved in order to ascertain whether a claim could be dismissed outright as lacking merit. The court emphasised that dismissing a claim at an early stage without a full examination of the pleadings from both sides could be tantamount to denyingthe plaintiff their right to afairhearing. It must be emphasised that this Honourable Court is vested with the discretion to strike out pleadings only in clear and obvious cases where it is evident that the claim is untenable. The precedent set forth in Okofoh Estates Ltd v. Modern Science Ltd⁵ clarifies that the court should not dismiss claims outright unless it is clear that they 4 disclose no reasonable cause of action. The plaintiff's claim, which may arguably appear potentially weak, raises issues that, in the view of the court, warrant judicial examination, particularly regarding the defendants' alleged acts of trespass and interference. In Gwenartey & Glie v. Netas Properties & Investments & Others⁶, the court reiterated the importance of allowing cases to proceed to trial unless they are patently unarguable. It must be made clear that the court's role is not to act as a gatekeeper that dismisses claims prematurely but rather to ensure that all parties haveanopportunity topresent their cases fully before adeterminationis made. Given the above principles, it is clear that the defendants' application cannot succeed without their submission of a statement of defence. The absence of a defence leaves the court without a sufficient basis to consider the merits of the defendants' arguments regarding the plaintiff's claims. As noted in John Mahama v. Electoral Commission and Nana Addo Dankwa Akufo-Addo⁷, a court must have adequate material before it to make determinations that affect the rights of the parties. The defendants’ failure to file a defence means that the court is not equipped with a comprehensive understanding of the issues placed before it by the present application. In other words, the court must be in a position to assess the merits of both sides of the case fully before reaching a decision. It is a fundamental principle of justice that both parties should be given a fair opportunity to present their respective cases. Moreover, the principle established in Nene Fieso Gblie v. Netas Properties Investment⁸ underlines that applications for striking out pleadings must be made promptly upon noticing the defect, which reinforces the principle of procedural diligence. A defendant’s failure to file a defence not only hinders the application under Order 11 Rule 18(1)(a) but also reflects a lack of engagement with the proceedings, which canbe prejudicial tothe administrationofjustice. 5 In Republic v. High Court, Accra; Ex-parte Aryeetey⁹, the apex court held that the absence of a defence in the context of an application to strike out pleadings under Order 11 Rule 18(1)(a) is a significant gap that cannot be overlooked. The rationale, as opined by the Supreme Court, is that the court must be able to assess both the plaintiff’s claims and the defendants’ responsestoarrive atafair and just conclusion. The position was further reinforced in Dankwa & 3 Others v. AngloGold Ashanti Limited¹⁰, where the Supreme Court noted that applications for striking out must be made with a complete understanding of the issues as presented by both parties. The court's discretion to strike out claims should be exercised cautiously, which would ensure that parties are not deprived of their right to be heard unless the case is clearlyunsustainable. Conclusively, the defendants’ application under Order 11 Rule 18(1)(a) therefore fails to meet the necessary threshold as the issues presented by the plaintiff are neither plainly nor obviously unsustainable. The allegations of unlawful eviction and property destruction present a factual matrix that requires a full trial for resolution. The court is not to dismiss a suit simply because it may be difficult to prove; it must allow forthe possibility thata plaintiff may succeed in establishing his orher claims uponafull examinationofthe facts. Indeed, the court must ensure that it does not deprive the plaintiff of the opportunity to prove his or her case simply due to the procedural missteps of the defendant. As established in Dyson v. Attorney General¹¹, the court must be cautious in using summary processes to terminate claims, only doing so when it is indisputably clear thatthe case cannot succeed. Based on the foregoing considerations, the application to dismiss the plaintiff’s suit is hereby dismissed. The matter will proceed to trial where the substantive issues canbe fully ventilated. The court so orders! 6 SGD JUSTICEJENNIFER AHMED, MRS, JUSTICEOF THE HIGH COURT FOOTNOTES 1.Order 9Rule 7(1). 2.Order 9Rule 8. 3.Order 11Rule 18(1)(a). 4. Ampratwum Manufacturing Co. Ltd v. Divestiture Implementation Committee [2009]SCGLR 692. 5.OkofohEstates Ltd v. Modern Science Ltd [1996-97] SCGLR224. 6. Gwenartey & Glie v. Netas Properties & Investments & Others [2015-2016] 1 SCGLR605. 7. John Mahama v. Electoral Commission and Nana Addo Dankwa Akufo-Addo [2021]171GMJ 473SC. 8.Nene Fieso Gblie v. Netas PropertiesInvestment [2017-2020] 1SCGLR605. 9.Republicv. High Court, Accra; Ex-parte Aryeetey[2003-04] 1SCGLR 393. 10.Dankwa & 3Othersv.AngloGold Ashanti Limited [2019-2020] 1SCLRG 641. 11.Dyson v.Attorney General[1911] 1KB 410. 7