SIMAVI COMPANY LTD VRS FELIX NYARKO-PANG (LD/0541/2023) [2024] GHAHC 198 (7 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA (LAND COURT 7) HELD IN ACCRA ON FRIDAY, THE 7TH DAY OF JUNE, 2024 BEFORE HIS LORDSHIP ALEXANDER OSEI TUTU (J.) SUIT NO. LD/0541/2023 SIMAVI COMPANY LIMITED :: PLAINTIFF/RESPONDENT H/NO. 120, VINNERA ROAD, ODORKOR – ACCRA VRS FELIX NYARKO-PANG :: DEFENDANT/APPLICANT 29, MANU AVENUE, WESTLAND – ACCRA (GE 351 2048) ================================================== PARTIES: PLAINTIFF/RESPONDENT ABSENT DEFENDANT/APPLICANT ABSENT COUNSEL: FRANCIS JAGRI ESQ., WITH JONATHAN OSEI ESQ., H/B FOR EMMANUEL BRIGHT ATOKOH ESQ., FOR PLAINTIFF/RESPONDENT PRESENT ODAME ASANTE KWAKU ESQ., H/B FOR KWEKU Y. PAINTSIL ESQ., FOR DEFENDANT/APPLICANT PRESENT ====================================================== R U L I N G This Ruling is in respect of an Application on Notice filed by the Defendant praying this Court for an Order striking out paragraphs 5 and 6 of the Plaintiff’s Reply and Defence to Counterclaim. The Application was brought under Order 11 Rule 18 (1) (C) of the High Court (Civil Procedure) Rules 2004 (C.I. 47). The Defendant in arguing the Motion submitted that the law does not permit a party to raise new allegation or fact inconsistent with his previous claim in his 1 RULING DELIVERED BY J. ALEXANDER OSEI TUTU AT LAND COURT SEVEN IN SUIT NO. 0541/2023 ON 7TH JUNE, 2024 Reply. Therefore the allegation of the Plaintiff that the Defendant stole the Plaintiff’s money and used it to purchase the land is a fresh allegation and pray the Court to strike it out. The Applicant relied on the case of HAMMOND VRS ODOI. In his response, Counsel for the Plaintiff opposed the Application, believing that the Applicant misconceived the paragraphs complained of and the rule against departure. He noted that the paragraphs in issue are direct response to paragraph 2 of the Statement of Defence, where the Defendant sought to provide an appropriate consideration to the Plaintiff for the acquisition of the land and averred that if there was any payment at all by the Defendant, it was a refund of some monies that had been stolen from the Plaintiff’s Company. Order 11 rule 10 (1) of C.I. 47 provides; “A party shall not in any pleadings make any allegation of fact or raise any new ground or claim inconsistent with a previous pleading made by the party”. The underlying reason for the rule is to prevent a party from prosecuting his or her case or defending it on two inconsistent fronts. For instance, in the case of MAHAMA VRS ISSAH AND ANOR [2001–2002] 1 GLR 695, C.A., the Plaintiff pleaded that the land he had sued was a Stool land which he acquired from the Stool. However, in the course of the proceedings, he drifted that the land was acquired from the Lands Commission or the Lands Department. Similarly, in ODOI VRS HAMMOND [1971] 1 GLR 375, the Plaintiff’s claim was that the subject matter land belonged also to the NII WE FAMILY but in his Reply, he claimed the land was owned by the Osu Stool and no longer the NII WE FAMILY. In both cases, the Court of Appeal found the element of a departure by the Plaintiff from their original claims. 2 RULING DELIVERED BY J. ALEXANDER OSEI TUTU AT LAND COURT SEVEN IN SUIT NO. 0541/2023 ON 7TH JUNE, 2024 Notwithstanding the provision on the rule against departure, the law allows for a party to allege new facts in his Reply in support of his case. In ODOI VRS HAMMOND case supra, their Lordship held at page 385 thus; “The Plaintiff may allege new facts in his Statement of Claim, but he is not permitted to set up in his Reply a new claim or cause of action which was not raised either in the Writ of Summons or in the Statement of Claim. In his Reply, he can explain and define the original claim. The question we must pause and answer is whether the Plaintiff, has in its Reply put up a new claim or cause of action? In my view, the answer is in negative. The averments in paragraphs 5 and 6 of the Reply do not put forward any new claim or cause of action. They appear to be direct responses to the paragraph 2 of the Statement of Defence. They offer mere clarity to the dealings of the Defendant with the Plaintiff in the acquisition of the subject matter property. The Plaintiff in its claim had pleaded fraud and was quite not certain whether the Defendant has an assignment or transfer of the land in his name, hence pleaded that any “purported transfer or assignment of the disputed land to the name of the Defendant is tainted with fraud”. (See paragraphs 19 and 21 of the Statement of Claim). Therefore, if the Defendant in his Statement of Defence makes an affirmative statement of the Plaintiff divesting its interest in the land to him and even adds that he provided the appropriate consideration of the land, I do not see anything wrong with the Plaintiff’s paragraphs 5 and 6 of the Reply, especially considering the role of the Defendant in the affairs of the Plaintiff relative to the land. The averments in the Reply, in my view, are facts that dovetails into the issue and the subject matter. They are not in respect of a different land or cause of action. Therefore, they are well within the provision of the Reply and the rules of pleadings. 3 RULING DELIVERED BY J. ALEXANDER OSEI TUTU AT LAND COURT SEVEN IN SUIT NO. 0541/2023 ON 7TH JUNE, 2024 Accordingly, I am not sure I will be dispensing justice, if I order for the striking out of paragraphs 5 and 6 of the Plaintiff’s Reply. For that reason, I dismiss the Application of the Defendant seeking to strike out paragraphs 5 and 6 of the Plaintiff’s Reply. The Motion to strike out paragraphs 5 and 6 of the Reply by the Defendant is dismissed with costs of Two Thousand Ghana Cedis (GH¢2,000.00). (SGD.) H/L ALEXANDER OSEI TUTU JUSTICE OF THE HIGH COURT REFERENCES: CASE MAHAMA VRS ISSAH AND ANOR [2001–2002] 1 GLR 695, C.A. ENACTMENT THE HIGH COURT (CIVIL PROCEDURE) RULES 2004 (C.I. 47). 4 RULING DELIVERED BY J. ALEXANDER OSEI TUTU AT LAND COURT SEVEN IN SUIT NO. 0541/2023 ON 7TH JUNE, 2024