ANIM-ADDO AND OTHERS vs. ADDAE-MENSAH AND OTHERS [1995-96] 1 GLR 15

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicants for an order for accounts under Order 15 of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) against the defendant-respondents who opposed the application on the ground that it was res judicata and urged that that issue should be dealt with by the court as a preliminary issue. The facts are set out in the ruling.

COUNSEL

E D Kom for the plaintiff-applicants.

Chinebuah for the defendant-respondents.

JUDGMENT OF BENIN JA.

The endorsement on the plaintiffs’ writ of summons sued out on 3 August 1995, reads:

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“(i) The plaintiffs, as children of the late Patrick Kwaku Anim-Addo, claim from the first to fourth defendants as executors of the deceased jointly and severally an account of the income and disbursement made from the residuary real and personal estate as provided in clause (iv) of the will.

(ii) The plaintiffs, as children of the late Patrick Kwaku Anim-Addo claim from the second and fifth defendants jointly and severally accounts of moneys received and disbursement of such moneys from

Kwamin Trading Co as provided in clause III of the will of Patrick Kwaku Anim-Addo.”

A statement of claim has also been filed. The claims are basically for accounts. On 30 August 1995 the plaintiffs put in an application for an order for accounts under Order 15 of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) supported by an affidavit. There was also an affidavit in opposition in which the main contention was that the question of accounts had been dealt with in earlier proceedings and was therefore res judicata. The defence contended this should be taken as a preliminary issue and in view of this the application for accounts is misconceived and should be rejected accordingly.

At the hearing, counsel for the plaintiffs made submissions which briefly put, show that the order being sought should be granted. I do not intend to go into these submissions now without first dealing with the point raised by the defendants.

Defence counsel referred to Order 33, r 1(3) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) and submitted that the question of this action being res judicata was a preliminary issue to be tried before any order for accounts could be considered by the court.

Order 33 of LN 140A as substituted by LI 1129 has the following provisions:

1. (1) Where a writ is endorsed with a claim for an account or a claim which necessarily involves taking an account, the plaintiff may, at any time after the defendant has entered an appearance or after the time limited for appearing, apply for an order under this rule.

(2) An application under this rule must be made by summons and, if the Court so directs, must be supported by affidavit or

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other evidence.

(3) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be

due to either party be paid to him within a time specified in the order.”

It is Order 33, r 1(3) of LN 140A as substituted by LI 1129 which has given rise to some controversy by way of interpretation. Counsel for the defendants was of the view that once there was a preliminary issue it had to be determined first before the application for accounts could be heard and therefore so long as res judicata was raised as a preliminary issue it had to be dealt with first, thus the application for accounts was premature. For his part, counsel for the plaintiffs submitted that if there was a preliminary question it could be raised as a defence to the application for accounts. Another defence open to the defendant is that he is not an accounting party. Thus if the court dismisses the defence, if any, then it may proceed to grant the application for accounts.

The words for emphasis in Order 33, r 1(3) of LN 140A as substituted by LI 1129 will be “on the hearing of the application.” To appreciate what this means it is necessary to have regard to the preceding subrules, ie Order 33, r 1(1) of LN 140A as substituted by LI 1129 which entitles the plaintiff to apply for an order of accounts as soon as the defendant so enters appearance and Order 33, r 1(2) of LN 140A as substituted by LI 1129 which directs how the applicant is to come before the court.

When the summons is filed, it is to be placed before the court which may then decide whether an affidavit or some other evidence is necessary. But as a matter of practice applicants annex affidavit or other acceptable evidence to the summons without any direction from the court which invariably always accepts it.

When the required evidence is before the court, the respondent is entitled without any direction by the court, to file an affidavit or provide information to the court in an acceptable form, for example in a statement of defence that he has something against the grant of the application. The defence will only be heard when the application has come up for hearing and the applicant has been heard. “On the hearing

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of the application” therefore means at the stage when the applicant wants to move his application for accounts. There, the respondent will have to tell the court that there are preliminary issues which do not entitle the applicant to an order for accounts at this stage. Thus the preliminary issue as stated in Order 33, r 1(3) of LN 140A as substituted by LI 1129 means an issue which has to be determined before even the question of accounts can be considered. The preliminary issue, in my view, is not to take the place of a defence to the application. The preliminary issue will include such matters as jurisdiction of the court, statute of limitation, or any other legal point which can be taken at the early stages of litigation and which can be disposed of summarily at that stage. But most importantly that the defendant is not an accounting party. When any such preliminary matter has been disposed of, then the defendant may raise any defence he may have to the application for accounts itself.

Such defence may take several forms, for instance that it is premature, or that it can only be ordered upon plaintiff’s success at the trial, or that it is simply not possible for the accounts to be taken due to several factors which cannot be conveniently stated here. Thus “preliminary issue” is to be distinguished from a defence or an answer to an application for accounts. Preliminary issue, in my view, will not include matters like capacity of the plaintiff, res judicata, estoppel, etc which actually call for pleadings and evidence to establish at the trial itself. Thus the question whether the action itself is res judicata is not an issue which can be determined before pleadings are closed and without evidence being led to establish it. It is for these reasons that I dismiss the objection raised and order the hearing of the application to proceed. No costs awarded.

DECISION

Preliminary objection dismissed. Hearing of application for accounts to proceed.

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