DIVISION: IN THE SUPREME COURT
DATE: 10TH JULY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND CRABBE JJ.S.C.
CASES REFERRED TO
(1) Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency
Company [1894] 1 Ch. 578; 63 L.J. Ch. 366
(2) Abbey v. Ollennu (1954) 14 W.A.C.A. 567
(3) Okunubi v. Assaf (1951) 13 W.A.C.A. 226
(4) Adkins v. North Metropolitan Tramways Company (1893) 63 L.J.Q.B. 361
(5) John Lancaster Radiators Limited v. General Motor Radiator Company [1946] 2 All E.R. 685; 176
L.T. 178; 90 S.J. 63, C.A.
(6) Thorp v. Holdsworth (1876) 3 Ch.D. 637
[p.293] of [1963] 2 GLR 291
NATURE OF PROCEEDINGS
APPEAL from a decision of Crabbe J. (as he then was) delivered in the High Court, Kumasi (unreported)
wherein he gave judgment in favour of the defendants in an action by the plaintiff for a declaration of title
to land. The facts are as set out in the headnote.
COUNSEL
Koranteng-Addow for the appellant.
No appearance by or on behalf of the respondents.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
[His lordship stated the facts as set out in the headnote and continued:] Now before passing on to the trial
and considering, the evidence which was adduced by the parties and the trial judge’s findings and ultimate decision, it seems to me to be necessary to ascertain and be precise about, the material allegations on which the plaintiff based or founded the reliefs claimed, which allegations, of course, are those which he had to establish by his evidence. As to this, undoubtedly one material allegation which the plaintiff pleaded as entitling him to the reliefs he claims was the judgments delivered in an action which his family
instituted against the second defendant for a declaration of title to the premises in dispute. It is clear,
however, that proof of the judgments does not entitle the plaintiff to the reliefs sought against the first
defendants, because the first defendants had acquired rights from the second defendant, before the
commencement of the action against the second defendant in which the first defendants were not parties,
which resulted in the judgment against the second defendant. That is the decision of the learned trial
judge who referred to the relevant authorities: the English case of Mercantile Investment and General
Trust Company v. River Plate Trust, Loan, and Agency Company,1 Abbey v. Ollennu,2 a local case, and
Okunubi v. Assaf,3 a Nigerian case; and it cannot be disputed that, on the premises that that which the
plaintiff relied on to establish his case was the judgments pleaded only, as was undoubtedly the case so
far as the second defendant was concerned, the learned judge’s decision was correct and sound.
It is argued however that the plaintiff averred in paragraph 1 of his statement of claim that, “the leasehold
property on plot No. N.T.E.R. 134, Kumasi, was built by members of the plaintiff’s family including the
second defendant,” and therefore founded his claim to the declaration sought in the writ on that
allegation. It is a possible view, so let it be accepted.
In that case note has to be taken of the fact that the allegation was expressly denied by the first paragraph
of the statement of defence in the following terms: “Save as is hereinafter expressly admitted defendants
deny each and every allegation of fact contained in the plaintiff’s statement of claim as if the same is set
out in detail and traversed seriatim.” It is then contended that the plea in that form offends against Order
19, r. 18 of the Supreme [High] Court (Civil Procedure) Rules, 19544 which provides that: “It shall not be
sufficient for a defendant in his defence to deny generally
[p.294] of [1963] 2 GLR 291
the grounds alleged by the statement of claim . . . but each party must deal specifically with each
allegation of fact of which he does not admit the truth, except damages.” It is finally contended that by the
operation of Order 19, r. 14 of the above stated rules which provide that: “Every allegation of fact in any
pleading . . . if not denied specifically or by necessary implication, or stated to be not admitted in the
pleading of the opposite party, shall be taken to be admitted,” and inasmuch as the allegation contained in
paragraph 1 of the statement of claim was not properly traversed as required by Order 19, r. 18, that
allegation contained in paragraph 1 of the statement of claim that the building on the plot was constructed
by the members of the plaintiff’s family “shall be taken to be admitted”; that from this, it follows that no
necessity arose for the plaintiff to adduce any evidence towards proof of that allegation.
It seems to me, however, that that contention stems from a misapprehension or misconception as to the
true meaning and scope of the provisions of Order 19, r. 18 of our local rules, corresponding to Order 19,
r. 17 of the English rules. In comments and explanations on the provisions of the English rule 17 which
can be seen in several of the books, dealing with procedure (e.g., the Annual Practice or White Book,
Bullen and Leake, and Atkins Forms and Precedents in Civil Proceedings), it is explained quite clearly,
firstly, that the phrase or terminology “deny generally” appearing in rule 17 of Order 19 (i.e., the
provision that: “It shall not be sufficient for a defendant … to deny generally”), is an illusion or reference
to, and only means, that “compendious form of traverse [under the old system of pleading] … known as
[pleading] the ‘general issue’ which had the effect of putting the plaintiff to the proof of all the facts
necessary to support his cause of action, and had the further vice of enabling the defendant to give in
evidence facts which might take the plaintiff by surprise” (see Atkin’s Encyclopaedia of Court Forms and Precedents in Civil Proceedings, Vol. XIII, p. 172). Secondly it is further explained that, adopting the
explanation in Atkin (supra pp. 172-173): “It has become a common practice, at any rate in the King’s
Bench Division, to use a traverse in the form that. . .’save as aforesaid, the defendant denies each and
every allegation of fact in the statement of claim as if the same has been set forth seriatim and specifically
traversed.” Similar explanation is given in Bullen and Leake’s Precedents of Pleading (11th ed.), p. 667,
in a footnote, that: “where the defendant denies every single allegation contained in the Statement of
Claim, he is not bound to copy out each allegation and deny it specifically; it is enough that his defence
makes it quite clear that every single allegation is denied.”
Then passing on to decided cases dealing specifically with the point, the first leading case appears to be
Adkins v. North Metropolitan Tramways Company.5 That was a case in which the plaintiff set out in his
statement of claim several allegations of fact on which to support a claim for personal
[p.295] of [1963] 2 GLR 291
injuries and damages against the defendants owing to their alleged negligence. The defendants simply
stated, in the statement of defence that they6 “deny each and all the several statements and allegations set
out in paragraph 2 of the statement of claim.” The plaintiff applied to strike out such a statement of
defence, and appealed from the refusal of both the master and the judge at chambers to allow his
application. On the appeal to the Divisional Court (Hawkins and Lawrence JJ.), it was held that the form
of defence, was intended and did in effect specifically deny each and every material allegation of the
statement of claim. Hawkins J. in the course of his judgment for the court, made this pertinent and
significant observations7:
“I should have thought that when a man says ‘I deny each and every allegation that constitutes a cause of
action in your statement of claim,’ that is equivalent to a denial specifically given and drawn out at length to
each of such allegations. A denial so given would certainly be longer than necessary, though it might be
more strictly in form. This is a long way off the old plea of the general issue, which no one alleges to be now
sustainable.”
Adkins v. Metropolitan Tramways (supra) was expressly adopted and confirmed in the subsequent case of
John Lancaster Radiators Ltd. v. General Motor Radiator Co., Ltd.8 That was:
“an action in which the plaintiffs alleged that the defendants had wrongfully and maliciously conspired to
defraud and injure the plaintiffs in their business, the statement of claim set out (inter alia) several acts
alleged to have been done by the defendants in furtherance of the conspiracy. The defence contained a clear
and comprehensive denial of the alleged conspiracy, a general denial of all the acts alleged to have been done
in furtherance thereof, and a denial of every item of damage. It further stated: ‘The defendants … deny each
and every allegation in the statement of claim contained as fully as if the same were herein set forth and
denied seriatim.’ The defence did not, however, set out, and deal specifically with, each allegation. The
plaintiffs appealed to have the defence struck out.”
The Court of Appeal (Morton and Tucker L.JJ.) held that,9 “it was obligatory on a defendant to deny one
by one each allegation in a statement of claim, and, as the defendants had denied every allegation of fact
in the statement of claim, it could not be said that the defence tended to prejudice … the fair trial of the
action” to warrant it being struck out.
In the course of the principal judgment by Morton L.J. he stated as follows10:
“The defendants have chosen to plead in a manner which alleges, in effect, that the statement of claim and
every allegation of fact in it is incorrect from beginning to end … The plaintiffs are left in no doubt about
what the attitude of the defendants is in regard to every single allegation in the statement of claim. They deny
every one of them.”
[p.296] of [1963] 2 GLR 291
Later in his judgment the learned Lord Justice mentions and discusses Adkins v. North Metropolitan
Tramways (supra) and adopts or confirms it. He went on to refer to Thorp v. Holdsworth11 which was
relied on by counsel before him, and distinguished it in these words12: “That case was heard by Jessel,
M.R., and the defence was plainly evasive and obscure.” Tucker L.J., concurring, said,13 “I do not think
that this defence offends against the rules of pleading.”
It seems reasonably clear from these authorities therefore that the statement of defence filed on behalf of
the first defendants adequately and sufficiently denied the allegation in paragraph 1 of the plaintiff’s
statement of claim and thereby put the plaintiff to proof of that allegation. It falls then to ascertain if the
plaintiff discharged that onus. The whole of the evidence tendered on behalf of the plaintiff is hereunder
reproduced:
“My name is Adjoa Serwah. I am a petty trader and I live in Kumasi. I know the plaintiff, Akwasi Akyer, he
is the head of my family. I hold a power of attorney from Akwasi Akyer to represent him in this action.
Akwasi Akyer is my uncle. I tender in evidence my power of attorney; accepted and marked exhibit A. I
know the late R. B. Duker, he was my uncle and a brother to Akwasi Akyer. The late R. B. Duker was a
member of my family. I know house No. N.T.E.R. 134, Kumasi. I live in that house. That house belongs to
R. B. Duker. I now say that it is our family house. Some time ago there was litigation about this house. I was
one of the plaintiffs in that action. I represented the family. The case was heard at the Asantehene’s Court
and it came on appeal to the Land Court. I tender in evidence a copy of the judgment of the Land Court …
Judgment of the Land Court dated the 26th June, 1958, accepted and marked exhibit B.
Witness continues under examination-in-chief—
To my knowledge my family has never got a loan from the first defendants. Until the family house was
attached my family did not know that it had been mortgaged to the first defendants. No member of my
family signed the mortgage deed of Duker. The family has brought this action seeking the declaration set
out in the writ of summons. Cross-examined by Mr. Annan — The lease shown to me is from the
Asantehene to the late R. B. Duker. Lease tendered through witness, no objection accepted and marked
exhibit 1.” I cannot find in the evidence above set out, any evidence adduced towards establishing the allegation that
the premises in dispute was built by members of the family as pleaded in paragraph 1 of the statement of
claim. It follows that the plaintiff was not entitled to a declaration that the property is family property, on
the basis, or by virtue of the allegation pleaded in paragraph 1 of the statement of claim.
Taking a broad-minded view of the trial, however, it appears without doubt, that the issue of the
construction of the premises in dispute by members of the plaintiff’s family was not property or
sufficiently canvassed, nor considered at all by the learned judge, even if only to hold that
[p.297] of [1963] 2 GLR 291
although raised it was not proved. In all the circumstances it seems to me that the ends of justice will be
better served by setting aside the judgment in favour of the defendants and remitting the action to the trial
court for trial de novo. I would order that each party pays his or its costs of this appeal but that the order
for payment of costs under the judgment set aside should remain unaffected as I consider the plaintiff
largely to blame for the course which the trial took.
The costs of the trial de novo will be in the discretion of the trial judge. Court below to carry out.
JUDGMENT OF OLLENNU J.S.C.
I agree.
JUDGMENT OF AKUFO-ADDO J.S.C.
I also agree.
DECISION
Judgment of the High Court set aside.
Case remitted to trial court for re-trial.
K.T.
