HIGH COURT, KUMASI
DATE:14TH MARCH, 1962
BEFORE: DJABANOR J.
JUDGMENT OF DJABANOR J.
By a writ of summons issued at Kumasi on the 16th February, 1959, the plaintiff-appellant claimed from the defendants-respondents “cash the sum of £G299 4s. 4d. being the balance of cocoa purchasing account and the cost of 17 empty cocoa bags which defendants had failed to pay after repeated demands”. It was in the undefended list.
On the 18th March, 1959, the defendants filed an affidavit in support of an application for leave to defend this action. Paragraphs 6 and 7 of the affidavit read as follows:
“6. That it was then found and admitted by plaintiff that I had supplied plaintiff with seventy-five (75) bags cocoa worth £G665 12s. 6d., and that plaintiff had given me by way of cash advances, £G505, plaintiff was therefore to refund to me £G160 12s. 6d. This amount he has not yet paid.
7. That the plaintiff rather owes me £G160 12s. 6d.
This was sought to be amended to read: “6. That first defendant was found to have supplied plaintiff with 812/3 bags of cocoa worth £G727 5s. and to have obtained cash advance to the tune of £G590.
7. That the plaintiff rather owes me £G137 5s.
In the premises I make this affidavit asking leave to defend the suit and to counterclaim for £G137 15s.”
On the 15th May, 1959, when the case was called the plaintiff asked leave to amend his affidavit and the amount claimed. This was granted. Defendant also asked leave to amend his affidavit but this was adjourned for a formal amendment to be filed. This was done on the 18th May, 1959.
On the 29th May, without formally granting the defendants leave to defend, and without allowing the amendment to be filed, and without ordering pleadings, by the agreement of counsel, the court referred the matter to a referee for enquiring into the accounts.
From all the circumstances I am prepared to accept that leave was granted to the defendants to defend.
I think the omission of this fact in the record book must have been an oversight for in any case actual leave was granted and the case was referred to a referee. But then no pleadings were ordered. I accept the writ as a statement of claim but there does not appear to be any defence filed much less a formal notice to file a counterclaim or even the counterclaim itself. In view of the rules and orders I am unable to say that the affidavit in support of leave to defend included the counterclaim. At the best it could only have been notice of a counterclaim—not the counterclaim itself.
Order 18 rule 4 of the Schedule to Cap. 4 (which was the relevant procedure in 1959) reads as follows: 4. (a) “No defendant shall be allowed to set up any such counterclaim or set-off unless he shall have lodged with
[p.170] of [1962] 1 GLR 169
the Registrar four clear before the return day a notice in original, and as many duplicates thereof as there are plaintiffs, containing his name and address and a concise statement of the grounds of such counterclaim or set-off, and shall have paid the same court and service fees as would be payable if he were claiming by writ of summons: Provided that the court may in its discretion, and on such terms as may seem just, allow the defendant to set up a
counter-claim or set off notwithstanding that such notice has not been dully lodged”.
It follows therefore that there was no proper counterclaim before the court and the judgment in favour of defendant on his counterclaim was bad and must be aside.
DECISION
(Sangodele v. Oyewele and Mensah, Djabanor, J.)
