WANYINARA v. BASSAN [1972] 2 GLR 277
HIGH COURT, SEKONDI
Date: 26 JUNE 1972
BEFORE: EDUSEI J.
CASES REFERRED TO
(1) Spedding v. Fitzpatrick (1888) 38 Ch.D. 410; 58 L.J.Ch. 139; 59 L.T. 492; 37 W.R. 20; 4 T.L.R.
505, C.A. (2) Thompson v. Birkley (1882) 47 L.T. 700; 31 W.R. 230, D.C.
NATURE OF PROCEEDINGS
APPLICATION for further and better particulars. The facts are fully set out in the ruling.
COUNSEL
James Mercer for the applicant.
J. K. Essiem for the respondent.
JUDGMENT OF EDUSEI J.
The plaintiff is applying for further and better particulars of paragraphs (5) and (16) of the statement of defence after her solicitor’s letter of such request to the defendant’s solicitor had been turned down.
Paragraph (5) of the statement of defence states as follows:
“Paragraph (4), (5) and (6) of the statement of claim are denied. The house in question is the self-acquired property of the late Ekra Kobina brother of the late Adjua Twintoh.” The plaintiff would like to know the way and manner the late Ekra Kobina acquired house No. 33/11 Boundary Road, Sekondi, the subject-matter in dispute. Paragraph (16) of the statement of defence also states:
“In further answer to these paragraphs the defendant confirms that he bought the house in question from the late Ekra Kobina with full knowledge of his family and has been in possession ever since. The defendant denies that the plaintiff has at any time, since the defendant took possession of the house, made any claim to it before the institution of this action.”
The whole purpose of pleading is to set out in a summary form the material facts on which a party relies for his claim or defence so that the opposite party is not taken by surprise at the trial. The opposite party must come to court knowing the case he has to meet. It is on these principles that further and better statement of particulars will be ordered by this court. [p.279] of [1972] 2 GLR 277
In taking paragraph (2) of the statement of defence I would ask: what are the facts on which the defendant relies to say that house No. 33/11 Boundary Road, Sekondi, is the self-acquired property of Ekra Kobina who sold the said house to the defendant? The nature of self-acquisition of the house by Ekra Kobina must be known to the opposite party, for merely saying that it was the self-acquired property is not enough. Did Ekra Kobina build the house himself or did he buy it from a third party by means of a deed of conveyance or according to customary law or by an auction through a court’s order? The way and manner of the acquisition must succinctly be stated in the pleadings, for the statement that it was the self-acquired property of Ekra Kobina is a conclusion based on facts and it is therefore a legal phenomenon but pleadings must contain facts and not law. Having stated that it was the self-acquired property of Ekra Kobina the defendant should have proceeded to give facts constituting how it became the self-acquired property of his vendor. If this is not done, the plaintiff will be kept in the dark as to how Ekra Kobina acquired house No. 33/11 Boundary Road, Sekondi.
Thus in Spedding v. Fitzpatrick (1888) 38 Ch.D. 410, C.A. where in an action to restrain trespass on a
road, the defendants pleaded that it was a highway, and were ordered to amend their defence so as to
show the mode or title in or under which they claimed that the road had become a highway, the
defendants amended their defence alleging that the road had for so many years been used by the public as of right and was a highway, having been dedicated to the public by the plaintiff and her predecessors in title or some of them. On the application of the plaintiff, it was held that the court will compel a party to give such information as to the nature of his case as is required to prevent his opponent from being taken by surprise at the trial. On appeal Cotton L.J. in his judgment at p. 414 said:
“A highway becomes such by being dedicated to the public, and proof of user by the public is in general sufficient evidence of dedication, unless it is shown that during the period of user there was no person who could dedicate the land to the public. But dedication to the public may be proved in another way, by proof of facts and declarations of the owner. Here if the defendants rely on anything but user, I think it is reasonable that the plaintiff should be informed before the trial what is the nature of the acts and declaration on which they rely, and of the periods at which they took place, without stating the details or giving particulars of their evidence.”
Fry L.J. agreed with Cotton L.J. and an amendment of the trial judge’s order was accordingly made. I
shall apply the same principle and say that the way and manner house No. 33/11 Boundary Road,
Sekondi, was acquired by Ekra Kobina should be made known to the plaintiff.
[p.280] of [1972] 2 GLR 277
As regards paragraph (16) of the statement of defence I, at first, in the course of arguments of counsel, was of a certain opinion but on reflection after reading the authorities I am of a different view now. It is correct that the defendant has stated that he bought the house from Ekra Kobina but the mode of purchase has not been stated, i.e. whether it was by a deed of conveyance or by customary law. The date of sale is not known and the purchase price has not been stated. In my judgment these facts are necessary so that the opposite party can come to court well knowing the case he has to meet and he also will be prepared to answer the defendant’s case. For instance, if the sale was by a conveyance the date and purchase price will appear therein and it is reasonable for the defendant to give these briefly in his pleadings to the plaintiff. Thus if a party relies on a written contract for his claim the usual pleading runs thus: “By a written contract dated so and so, the plaintiff . . .” This clearly shows that the party is relying on a particular written contract. If the claim is founded on a parol agreement it will be so stated. If the defendant is relying on customary law, that must be pleaded “with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the tribe or tribes to which it relates.” See Order 19, r. 31 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
The English courts have adopted the practice to order particulars much more freely than in former times and there is no good reason, in my view, against such practice being adopted in our courts. The object is to “prevent surprise at the trial, and limit inquiry at the trial to matters set out in the particulars. They tend to narrow issues, and ought to be encouraged”: Watkin Williams J. in Thomson v. Birkley (1882) 47 L.T.
700. They also avoid unnecessary expense; it must be known that particulars will not be ordered as a
matter of course, but only in appropriate cases bearing in mind the principles set out above. I think it is reasonable in the circumstances of this case to order the defendant to give particulars of the mode of purchase of house No. 33/11 Boundary Road, Sekondi, as well as the date of sale and the purchase price.
Costs of this application are assessed at ¢25.00 against the defendant. The defendant is to provide the particulars within two weeks from today.
It will yield fruitful results for counsel to read the chapter on particulars and the many illustrations taken from decided cases in Odgers on Pleading and Practice (19th ed.), pp. 152-155.
DECISION
Application granted.
