IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
GAEWU JSC
ADJEI-FRIMPONG JSC
ADJEI JSC
AMALEBOBA JSC
CIVIL APPEAL NO. J4/23/2025
18TH MARCH, 2026
EDWIN ANSAH HORTHMAN ……….. PLAINTIFF/RESPONDENT/RESPONDENT
VRS
MASAUD ABUBAKAR ……….. DEFENDANT/APPELLANT/APPELLANT
JUDGMENT
ADJEI-FRIMPONG, JSC:
This appeal involves a simple procedural issue; the power of trial Courts to enter judgment on admissions upon failure of a party to answer a request to admit facts pursuant to Order 23 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Could such judgment be entered even in the face of specific denial of the substance of the Plaintiff’s claim on the pleadings? And can such judgment be entered regardless of the nature of the Plaintiff’s reliefs?
The Plaintiff (before us as Plaintiff/Respondent/Respondent) commenced an action in the High Court seeking the following reliefs:
a. A declaration that the purported sale of the land by the Defendant to the Plaintiff which is situate at North-Labone, Accra and being the subject matter of this suit [was] fraudulently made.
b. An order for the recovery of USD 600,000 or its equivalent in Ghana cedis at the time of payment plus an additional sum of GHC 80,000 being monies owed by Defendant to the Plaintiff.
c. Interest on the said amount at the prevailing commercial bank rate from the 19th of May 2017 till date of final payment.
d. An order for the sale of the said property located at Mantey-Tsuru, Accra and registered as No. G.A. 48747 to offset the debt agreed.
e. Costs, including Solicitors fees.
f. Any other order(s) that the Honourable Court would deem fit.
The Plaintiff’s story is that, some time in 2016, the defendant represented to him that he owned a 0.58- acre plot of land at North-Labone which he was selling. On this representation, he agreed to buy the plot. For that, he made two payments of Six Hundred Thousand United States Dollars (USD 600,000) and eighty thousand Ghana Cedis (GHC 80,000) to the defendant. He however went to the land to discover that the defendant was not the owner and that the documents he prepared for him were fraudulent. He thus alleges fraud the particulars of which he sets out as follows:
“5(a) The Defendant sold or purported to sell land to Plaintiff which he knew he had no title to.
5(b) The documents of title to the land never emanated from the Lands Commission but were fake having been confirmed by the Lands Commission by it letter dated 26th June, 2018.”
The Plaintiff further pleads that the Defendant later agreed to refund his money to him. And as security for that, he handed over title documents over another property at Mantey-Tsuru, Accra No. G.A. 48747 Block 1 Section 093 to him. The Defendant has evinced every intention not to refund the money.
The Defendant (as Defendant/Appellant/Appellant in this Court) resisted the Plaintiff’s claim by a statement of defence filed on 17/12/18. He pleads that the plot was sold to the Plaintiff rather by a company called Regards Promotions through its Managing Director one Bahoumson Omar. He also claimed that the undertaking to refund the money was not voluntarily given. In effect, the Defendant denied defrauding the Plaintiff and also owing him any amount. The alleged undertaking, he pleads was not voluntarily given by him.
The Plaintiff filed a reply to the defence and joined issues with the Defendant after which he filed an application for directions. The following issues were set out:
“a. Whether or not Plaintiff paid to the Defendant personally an amount of Six Hundred Thousand United States Dollars (USD 600,000.00) plus an additional sum of Eighty Thousand Ghana Cedis (GHC 80,000.00) as consideration for the plot of land measuring 0.58 acre situated at North-Labone, Accra.
b. Whether or not the documents of transfer executed by the Defendant in favour of Plaintiff are fake.
c. Whether or not the Undertaking dated the 19th day of May 2017 was made by the Defendant voluntarily
d. Whether or not Plaintiff is entitled to his claims
e. Any other issue(s) arising from the pleadings”
On 17th June, 2019, the trial court considered the application for directions and made the following orders:
“BY COURT:
1. Application for direction is duly taken. The triable issues are those contained in the application for direction filed on 1/02/2019.
2. Lawyers for the parties shall file Witness Statements within 28 days from today.
3. Pre-trial checklist shall be filed by them.
4. I also direct that this cause in which Order 23 of C.I. 47/04 if applied probably could help resolve or narrow the range of triable issues set down for trial. Plaintiff’s lawyer shall file notice to admit facts and or documents on the defence and formulate the questions appropriately.
5. The case is adjourned to 25/07/2018 for Case Management Conference.”
In apparent compliance with the order of the trial court, the Plaintiff proceeded to file Request to admit facts pursuant to Order 23 rule 2(1) of C.I. 47 in which defendant was requested to admit the following:
1. Sometime in 2016, you collected USD 600,000.00 from the Plaintiff as payment for 0.58 acres of land situated at Norh Labone, Accra.
2. You subsequently collected GHC80,000.00 for stamp duty from the Plaintiff.
3. You failed to give possession of the said land to the Plaintiff after receiving the said payments.
4. On the 19th of May 2017, you signed an undertaking to refund the said USD600,000.00 and the additional GHC80,000.00 within thirty (30) days.
5. You again failed to pay within 30 days.
The request was not answered to by the Defendant. The reason for the default is not indicated on record. We note it is not relevant to this discourse. In further accord with the trial court’s order however, the Plaintiff filed a witness statement on 22nd July 2019 to which he attached the relevant documents to prove his claim on merit.
Now, before trial would commence, the Plaintiff filed an application for judgment on admission on the basis of a search at the registry of the court which revealed that the Defendant had failed to respond to his request to admit facts. The trial judge granted the application and entered judgment for the Plaintiff for the monetary claims but made no pronouncement on the declaratory relief and the fraud on which it was based.
The Defendant filed an appeal in the Court of Appeal on two grounds namely; that the Court below erred in law by granting the Plaintiff judgment on admissions and also that the judgment was against the weight of evidence.
The learned Justices of the Court of Appeal agreed with the trial Judge that the failure of the Defendant to respond to the notice to admit facts having turned into admission of the facts in issue, the trial court was entitled to enter judgment for the Plaintiff under Order 23 rule 6 (2).
The mainstay of their lordships’ decision was their view that the fact that there was a denial on the pleadings did not bar the Plaintiff from applying for judgment on admission citing for support, the case of UNITED STATE VRS YOUNG NO. 87 CIV. 9159 1990 WR 135734. Their Lordships also declined to admit the omnibus ground of appeal on the basis that the judgment was interlocutory, and no evidence was led in full trial for that ground to apply.
Appeal in the Supreme Court.
The grounds of appeal in this Court are as follows:
“I. The Court below erred in law by finding that the High Court rightly granted the Plaintiff/Respondent/Respondent judgment on admission pursuant to Order 23 of the High Court (Civil Procedure) Rules, C.I 47.
PARTICULARS OF ERROR
a. The Court on determining an application for judgment on admission upon failure to answer a notice to admit fact, ought to consider the entire record, statement of defence and pleadings of the Defendant, in determining the application for judgment on admission.
b. The matters sought to be admitted in the said notice of admission, the basis of the judgment on admission had been denied by the Defendant in the entire record, statement of defence and pleadings of the defendant.
c. The Court can only grant declaratory reliefs as endorsed on the Plaintiff’s writ of summons and statement of claim only after the parties adduce evidence and there is argument made by the parties.
d. An allegation and relief for fraud as pleaded by Plaintiff in his statement of claim could only be determined by the High Court upon trial on evidence and argument.
e. The monetary claims of the Plaintiff were intricated and dependent on the declaratory reliefs of fraud claimed by the Plaintiff against the Defendant.
II. The Court below erred in finding that the ground of appeal “the judgment is against the weight of evidence” is inapplicable in the present case.
i. The judgment on admission is a final judgment, and as such the omnibus ground of appeal may properly be invoked in law.
Arguments of the Parties
The argument of Defendant’s Counsel rests on two key points which he contends the two lower courts failed to recognize in making their decisions. The first is that on the pleadings, there had been a specific denial of the Plaintiff’s claim resulting in joinder of issues for trial. It was in respect of the matters specifically denied that the trial court (as can be gleaned from the order quoted above), mandated the Plaintiff to issue the request to admit facts of.
Whilst Counsel agrees that in terms of Order 23 rule 6 of C.I. 47 a party was entitled to obtain judgment on admissions against the adversary when a fact is admitted or deemed admitted upon request to admit, the authorities prescribe that such admission must be clear, unambiguous and unequivocal. EWUSIE MENSAH VRS EWUSIE MENSAH [1992]1 GLR 271; SSB VRS BINEY [1997-98]2 GLR 886; MICHELLETTI POLLA LTD VRS CRABBE [1976]1 GLR 108 cited. He contends that by the specific denial by the Defendant of the substance of the Plaintiff’s claim, the requirement prescribed for judgment on admission was not met.
Counsel turns to the nature of the reliefs of the Plaintiff which include a declaratory relief founded on an allegation of fraud with particulars set out, which required a full trial on the merit. He argues out the principle that judgment on admission ought not be entered where, as here, serious questions will be left to be argued or where a matter cannot be conveniently tried on a motion. Reference to S. KWAME TETTEH, Civil Procedure, A Practical approach, page 324.
Counsel notes that even though the learned trial judge seemed not to have pronounced judgment on the declaratory relief, the other reliefs which were consequential were founded on the substantive relief which sought declaration that the Defendant had defrauded the Plaintiff. In the words of Counsel; “there cannot be a convenient segregation of the substantive declaratory relief anchored on fraud from the consequential relief”.
Counsel further notes the fact that the judgment entered in the sum of $600,000 was excessive as it did not take into account the Plaintiff’s admission of a refund of $100,000 in his reply to the statement of defence.
On the second ground of appeal, Counsel faults the Court of Appeal for treating the judgment on admission which had settled the rights of the parties as interlocutory citing the case BANK OF AFRICA VRS 2K FARMS LTD Civil Appeal No. J4/36/2018 dated 23rd May 2018 wherein such cases as POMAA VRS FOSUHENE [1987-88]1 GLR 244; REPUBLC VRS HIGH COURT (FAST TRACK DIVISION) EX PARTE STATE HOUSING CO.LTD NO.2 (KORANTENG-AMOAKO INTERESTED PARTY) [2009] SCGLR 185 were cited.
He cites the case of TUAKWA VRS BOSOM [2001-2002] SCGLR 61 and ASAMOAH & ANOR VRS OFFEI [2018-2019]1 GLR 655 to argue that it was the duty of the Court of Appeal as appellate court to analyze the entire record before arriving at a decision as to whether the trial judge rightly decided the matter.
For the Plaintiff’s on the other hand, Counsel submits that the learned Justices of the Court of Appeal were right in rejecting the Defendant’s argument that the denial of the claim on the pleadings was a bar to entering judgment on admission on failure to answer request to admit facts. Counsel also agreed with the dictum of the Southern District of New York Federal District Court in the case of UNITED STATES VRS YOUNG (supra) thus, a traverse of facts in a statement of defence does not preclude a Plaintiff (at any time, as the rules prescribe) from bringing a notice seeking an admission by his opponent on certain facts.
Additionally, Counsel cites the case of ARMAH VRS ADDOQUAYE [1972]1 GLR 109 in which reference was made to Order 32 rule 6 of LN 140 A that, it was permissible for a party at any stage to move for such judgment on admissions of facts made either on pleadings or otherwise without waiting for the determination of any other question between the parties.
Counsel further rejects the Defendant’s contention that the admission was clear and unequivocal drawing the distinction that in this case judgment on admission was on the basis of a default to answer request to admit facts and not that the Plaintiff relied on admission of facts made. He says the case would have been different had the Defendant responded to request to admit and the admission he might have made was unclear and not unequivocal.
On the question of the Plaintiff having claimed declaratory relief based on allegation of fraud, Counsel observes that the learned trial Judge in the judgment did not touch on the issue of declaratory relief. Reference is made to the questions contained in the request to admit facts the answers to which according to him would have constituted a cause of action separate from the fraud allegation and the declaratory relief. The Plaintiff was therefore entitled to judgment on admission without waiting for the issue of fraud to be determined.
On the judgment being excessive having failed to take into account the $100,000 admittedly refunded, Counsel submits that the Plaintiff in any case had taken onto account the said refund in his entry of judgment.
Arguing the second ground of appeal, Counsel supports the position taken by the learned justices of the Court of Appeal and cites the case of ATUGUBA & ASSOCIATES VRS SCOPION CAPITAL (UK) LTD J4/4/2019 [GHASC] 18 where this court determined that the omnibus ground of appeal is usually common in cases in which evidence was led and that such ground was misconceived in interlocutory appeals where no evidence was led. For Counsel, the omnibus ground of appeal was “otiose” and had to be dismissed.
Resolution
The fundamental point to note in determining this appeal is that the jurisdiction to enter judgment on admission pursuant to Order 23 rule 6(2) is discretionary. See LACANSHIRE WELDERS LTD VRS HARLAND & WOLF [150]2 ALL ER 1096 at 1097. A party has no automatic right to it. The power rests with the court to exercise, doubtlessly upon the circumstances of each case. The language of the rule is clear on this point. It states:
“Where an admission of the truth of fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may apply by motion to the Court or to the judge for such order as the party may be entitled to on admission without waiting for the determination of any question between the parties, and the Court or judge may make such order as is just.”
Therefore as we are here dealing with the exercise of discretion by the lower courts, we, as second appellate Court ought not to interfere with the exercise of the discretion unless we are satisfied either that the courts below misdirected themselves on some matter and as the result arrived at a wrong decision or that it is manifest on examining the whole case that the courts below were clearly wrong in the exercise of the discretion which has resulted in an unjust result. See IN RE BOB KWAME & CO. LTD.; GYINGYI VRS BENARD & ANOR [1989-90] GLR; OWUSU VRS OWUSU-ANSAH [2007-2008].
Let us now consider the scope of the rule which is founded on the concept of admission. An admission in law generally refers to a statement, oral or written (expressed or implied) which is made by a party or his agent to a civil proceeding and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. It is generally presumed that no man would declare or accept anything against himself unless it was true. Consequently, unless explanations are given which satisfy the Court that the admission should not be so regarded, due weight is given to it as such. Mostly, the admitting party is rendered bound by it unless it was sufficiently explained away. See TAGOE VRS MANTSE OF AKUMAJAY (1946)12 WACA 31; OKAI VRS AYIKAI (1946)12 WACA.
By its very nature therefore, an admission where well-made, facilitates resolution of issues in proceedings. It takes away the obligation to prove a fact in issue. It thus narrows the controversy in the case, obviates the presentation of potentially long evidence and thereby shortens or expedites the trial. It is for this procedural utility that the rules allow a party to serve notice on the adversary to admit the truth of a fact or the authenticity of a document. Order 23 Rule 2 sub-rule (1) and Rule 3 sub-rules 1-3 therefore provide:
“2. (1) A party may at any time, by serving a request to admit, request any other party to admit for the purposes of the cause or matter only, the truth of a fact or the authenticity of a document. The request shall be as in Form 12 in the Schedule.”
3. (1) A party on whom a request to admit is served shall respond to it within fourteen days after it is served by serving on the requesting party a response to request to admit. The response shall be as in Form 13 in the Schedule.
(2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the cause or matter only, to admit the truth of the facts or the authenticity of the documents mentioned in the request to admit.
(3) A party shall also be deemed, for the purposes of the cause or matter only, to admit the truth of the facts or authenticity of the documents mentioned in the request, unless the party’s response
(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or (b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.”
The Subrules (2) and (3) create a specie of admission that is referred to as “deemed admission” (or adoptive admission). That is conceptually different from a direct or express admission of a fact or authenticity of a document. There is deemed admission where a party either fails to adequately traverse an allegation or where, as here, the party on whom a notice to admit is served, fails to respond to the notice in accordance with the prescription of the rules. A typical example of the former is provided for under Order 11 Rule 13 subrule (1) which states that “. . . any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.”
Another example is contained in Order 15 Rule 5 subrule (1) where, a third party who, having been duly served with the third Party notice, fails to file appearance or having been ordered to serve a defence, fails to do so, is deemed to have admitted the claim stated in the third party notice and is bound by any judgment so far as relevant to any claim, question or issue stated in the third party notice.
Order 23 Rule 6 subrule (2) allows a party to apply to the Court by motion for judgment on admission without waiting for the determination of any question between the parties and the Court may make such order as is just. But the hackneyed principle is that the admission must be clear, unambiguous and unequivocal. A number of respectful authorities bear on this point. See SSB VRS BINEY [1997-98]2 GLR 886; ADJAVON VRS HANA INDUCTRIAL HOLDING [1980] GLR 131; POMAA VRS FOSUHENE [1987-88]1 GLR 244. Elsewhere in the STELLY VRS PAPANIA 939 S.W. 2d 650 Tex., where judgment on admission had been obtained in the trial Court, the Court of Appeal of Texas set aside the judgment entered on the basis of admission because there was a genuine issue regarding the ownership and control of the premises on which Papania fell and broke his leg. Even where the admission is clear unambiguous and unequivocal, judgment is not automatic. The Court must still ensure that the judgment or order is fair and just and that there will be no pending issues that go to the root of the matter.
Learned Counsel for the Plaintiff seems to posit that the requirement of clarity of admission applies to admissions actually made and not to deemed admissions as here, for failure to answer a request to admit facts. This position is untenable.
Clarity of admission must be required in every case where a party applies to the Court to enter judgment on admission. Whilst it is the case that the authorities on clarity of admission as a requirement for judgment on admission have mostly arisen in cases of direct admission instead of deemed admission, there is no reason why a deemed admission must not meet the requirement of clarity and unequivocation. The reason is plainly this; by the application for judgment on admission, the applicant is asking the Court to be excused from proving anything on the issue because the fact is admitted. Such applicant has the burden of demonstrating that there is no genuine controversy about the material fact and that he was entitled to judgment as a matter of law.
The Court in exercise of its discretion ought to be satisfied even in the absence of answers to the request to admit that, on the record available including the pleadings, no controversy hangs around the material facts and that the applicant is entitled to such judgment. Such controversy could occur where, as in this case, there is deemed admission by reason of default to answer the request, yet there is a specific denial of the substance of the Plaintiff’s case. One must be mindful of the language of the rule requiring that the Court makes “the order as is just”. We believe a judgment will not be just if it was entered in the face of cogent outstanding issues or where the matters involved were not fit for judgment on admission.
It is always important to recognize that the purpose of the rule is to simplify trials by eliminating matters about which there is no real controversy. The rule was never intended to be used as a demand upon a Plaintiff or Defendant to admit that it had no cause of action or good defence. SANDERS VRS HARDER 148 TEX. 593 277 S.W. 2d 206 (1950). The rule was not intended to entrap the unwary and must not be construed to bar the pursuit of the truth.
The learned Justices of the Court of Appeal relied on the case titled UNITED STATES V YOUNG cited as NO. 87 CIV 9195 1990 WL 135734. From what we have observed, the citation accompanying the case points to a different case title. The case with that citation is MICHAEL PEREZ VRS MIAMI-DADE COUNTY otherwise cited as 297 F3d 1255 (11TH Cir. 2002).
In that decision, even though Judge TJOFLAT had noted in his speech thus: “The mere fact that a party has previously denied the matter about which an admission is sought does not obviate the need to respond to a Rule 36 request for admissions”, that was not the ratio of the case. The central issue the Court was addressing was whether the trial district Court abused its discretion in denying the Defendant’s motion to withdraw their admission made pursuant to Rule 36(b) of the Federal Rule of Civil Procedure. An important fact of the case was that the request the Defendant failed to answer had been a subject of an earlier request which the Defendant had denied. The Court had found that a grant of the motion to withdraw the admission “would have certainly aided in the ascertainment of the truth and the development of the merits”. And that in the circumstances of the case, “the prospect of deeming the controverted fact as having been admitted seems to be anathema to the ascertainment of the truth”. It was within this context that the dictum of Judge TJOFLAT relied upon by the Learned Justices of the lower Court was made. Had their Lordships applied their minds to the facts of the case and the context in which the statement was made, they would not have allowed themselves to be so passionately persuaded by the decision.
It cannot be a legal proposition worthy of prescription that parties are at liberty to issue request to admit facts where the same facts have been specifically and openly denied in the pleadings in a manner that sets the stage for a full-blown trial. Such course will cause distortion in the judicial process and subject it to ridicule. Mostly, it raises questions about the bonafides of the requesting party to formulate questions about matters which have already been denied in the existing pleadings. Whilst, in terms of the rule, parties may issue request to admit facts at any time (See ARMAH VRS ADDOQUAYE supra), sound judicial practice and fairness to judicial process require that questions are formulated with due regard to matters specifically pleaded or denied on record. And where the request culminates in an application for judgment on admission, it becomes the bounden duty of the court to consider all the facts on record to make a determination which is just. And in matters of this, one case cannot be regarded as an absolute precedent for another.
In the instant case, the Plaintiff had pleaded as follows:
“3. Sometime in 2016, Defendant represented to the Plaintiff that he had a plot of land measuring 0.58 acre situate at North-Labone, Accra to sell.
4. That on the basis of the said representation, the Plaintiff paid to Defendant an amount of Six Hundred Thousand United States Dollars (USD 600,000.00) plus an additional sum of Eighty thousand Ghana Cedis (GHC 80,000.00) as consideration for the land.
5. Plaintiff says that upon the payment of the said amount, he went unto the land only to discover that the Defendant did not own the land and the documents of transfer executed by him for Plaintiff turned out to be fake.
PARTICULARS OF FRAUD
“5(a) The Defendant sold or purported to sell land to Plaintiff which he knew he had no title to.
5(b) The documents of title to the land never emanated from the Lands Commission but were fake having been confirmed by the Lands Commission by it letter dated 26th June, 2018.”
6.The Plaintiff says that following this the Defendant by an agreement/undertaking dated the 19th May 2017 Defendant agreed to refund the entire amount within a period of thirty (30) days from the date of signing the undertaking which date was precisely [sic]
7. That as security for the payment for the sum Defendant handed over to Plaintiff original copies of his Land Title Certificate No. G.A. 48747 in respect of property located at Mantey-Tsuru, Accra shall be sold to offset part of the debt.
8. That it was also agreed that upon failure to pay the said amount, the Defendant’s property situate at Mantey-Tsuru, Accra shall be sold to offset part of the debt.
9. That at the time fixed by the Defendant himself for the payment of the debt has long lapsed and the Defendant has refused/failed and/or neglected to pay the said amount in spite of various demands, including Solicitor’s letters made by Plaintiff.
10. That Plaintiff says the Defendant has evinced an intention not to pay the said sum unless compelled by this Honourable Court.”
The Defendant’s statement of defence of 17/12/18 contains the following pleading:
“3. The Defendant denies paragraphs 4 and 5 of the statement and say that the land was validly granted to the Plaintiff by a company known as Regards Promotions through its Managing Director Bahoumson Omar.
4. Paragraphs 6, 7 and 8 of the statement of claim are denied and Defendant will put Plaintiff to strict proof thereof.
5. The Defendant says that the said undertaking was not voluntarily made by him
6. Paragraph 9 of the statement of claim is denied and Defendant will put Plaintiff to struck proof of the said averment.
7. In general answer to the statement of claim the Defendant says that the Plaintiff is not entitled to the reliefs sought or at all.”
The Plaintiff in a reply joined issues with the Defendant on the statement of defence. Out of that, issues including those related to fraudulent preparation of document and the voluntariness of the undertaking were raised in the Plaintiff’s application for direction (as set out in this judgment). Indeed, in a witness statement filed on 22/7/19 the Plaintiff alluded to all the matters contained in the pleadings and attached documents by which he sought to prove them.
Upon our careful examination of the pleadings, we find that the fraud allegation was the fulcrum around which the whole claim revolved. By the pleadings and particulars, we understand the Plaintiff as saying the Defendant made a representation about his title to the land to him which he knew was false at the time and out of which he obtained the payments from him. Not only that, in the scheme of the fraud the Defendant procured the preparation of fake documents over the land to him. These were denied in defence. The denial was backed by an explanation that another entity sold the land to the Plaintiff and again that the undertaking was not voluntary. This discourse set the stage for a full trial where the requisite burdens assumed on the pleadings were to be discharged as matters of law.
We therefore hold that there were serious issues involved in the case which could not be conveniently determined on a motion. The judgment on admission entered by the trial Court and affirmed by the Court of Appeal left in the trail of the suit, pending issues that went to the root of the claim. We also think that by the state of the pleadings, the deemed admission for the Defendant’s default did not pass the test of clarity and unequivocation required for the invocation of the rule to enter judgment on admission. Again, we expect it to have dawned on the lower Courts that the formulation of the questions in the Plaintiff’s request around many of the matters which had been specifically denied in the pleadings cast a serious doubt on the bonafides of the Plaintiff in proceeding to issue the request. This was capable of robbing him of any merit to the exercise of the discretion vested in the Court under the rule.
In the event, we hold that the lower Courts exercised the discretion not in accord with law and the decisions have occasioned injustice. We therefore decide to interfere with the exercise of the discretion and set aside the judgment on admission entered by the trial Court on 21st October 2019. We allow the appeal on this ground alone. We do not consider it necessary to touch on the omnibus ground of appeal assuming arguendo that same were legitimate. We remit the case to the trial Court to be determined on the merits.
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
ADJEI, JSC:
The Defendant/Appellant/Appellant, being dissatisfied with the judgment of the High Court delivered on admissions under Order 23 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) in favour of the Plaintiff/Respondent/Respondent on 21st October, 2019, appealed to the Court of Appeal, which affirmed the High Court’s judgment. The Defendant, dissatisfied with the judgment of the Court of Appeal delivered on 13th July, 2023, filed an appeal to this Court on 26th July, 2023. For the purposes of this appeal, the Plaintiff/Respondent/Respondent shall be referred to as the Plaintiff, and the Defendant/Appellant/Appellant as the Appellant.
The facts of the case as could be gleaned from the record of appeal are that the Plaintiff issued a writ of summons against the Defendant to recover an amount of USD 600,000.00 or its equivalent in cedis at the time of payment plus an amount of GH¢ 80,000.00 being the monies the Defendant owes the Plaintiff, the interests on both amounts, and an order for the sale of Property No. G.A. 48747 Mantey-Tsuru to satisfy part of the debt as agreed between the parties.
The Plaintiff averred that the Defendant, who styled himself as a businessman, represented to him that he had a plot of land measuring 0.58 acres at Labone, Accra, to sell, and that they agreed on a purchase price of USD 600,000.00 and GH¢80,000.00. The Plaintiff fully paid for the plot and subsequently found that the Defendant did not own the land and could not have sold it to him. According to the Plaintiff, a search conducted by him at the registry of the Lands Commission also revealed that ownership of the plot was not vested in the Defendant. The Plaintiff pleaded fraud against the Defendant and provided particulars, including nemo dat quod non habet, in his amended statement of claim. The Plaintiff demanded a refund of the purchase price, and the Defendant executed an undertaking to pay the amount within 30 days of execution. The Defendant used his property at No. 263, Block 1, Section 093, Mantey-Tsuru, Accra, with Land Title Certificate No. G.A. as security for the payment of the debt. The Defendant failed to pay, as a result of which the Plaintiff maintained the suit against him.
The Defendant, in his statement of defence, admitted the sale of the land and stated that the land was validly sold to the Plaintiff by a company known as Regards Promotions through its Managing Director, Bahoumson Omar, and proceeded to aver that the undertaking made by him was not voluntarily made.
The Plaintiff, in the course of the proceedings, filed an application for summary judgment, which the Defendant fiercely opposed with an affidavit, as he had not then filed his statement of defence. The statement of defence stated that the sale was between the Plaintiff and Regards Promotions, the owners of the land. The Plaintiff withdrew the application for summary judgment, and when the Defendant filed his statement of defence, the Plaintiff filed an application for directions to set down three issues for determination. The three main issues that were set down are as follows:
“(a) Whether or not Plaintiff paid to the Defendant personally an amount of Six Hundred Thousand United States Dollars (USD 600,000.00) plus an additional sum of Eighty Thousand Ghana Cedis (GH¢80,000.00) as consideration for a plot of land measuring 0.58 acre situated at North-Labone, Accra.
(b) Whether or not the documents of transfer executed by the Defendant in favour of the Plaintiff are fake.
(c) Whether or not the Undertaking dated the 19th
day of May, 2017 was made by the Defendant voluntarily.”
The High Court conducted case management after which the parties filed their respective witness statements. After the issues contained in the application for directions had been set down for hearing and the witnesses had filed their respective witness statements, the Plaintiff filed a Request to Admit Facts Under Order 23 rule 2 (1) and posed the following questions for admission or denial.
“1. Sometime in 2016, you collected USD 600,000.00 from the Plaintiff as payment for 0.58 acres of land situated at North Labone, Accra.
2. You subsequently collected GH¢80,000.00 for stamp duty from the Plaintiff.
3. You failed to give possession of the said land to the Plaintiff after receiving the said payments.
4. On the 19th of May 2017, you signed an undertaking to refund the said USD 600,000.00 and the additional GH¢80,000.00 within thirty days.”
The Defendant did not respond to the request within the time provided, after which the Plaintiff filed an application for judgment for failure to admit or deny the request made. The High Court gave judgment in favour of the Plaintiff for the reliefs sought. The Defendant appealed to the Court of Appeal, which also affirmed the judgment of the High Court. The Defendant is before this Court challenging the procedure upon which the judgment was entered against him and affirmed by the Court of Appeal. The Defendant, dissatisfied with the judgment of the Court of Appeal, filed an appeal to this Court on 26th July, 2023, for the reversal of same. The two grounds of appeal are as follows:
“2. The grounds of appeal are;
1) The Court below erred in law by finding that the High Court rightly granted Plaintiff/Respondent/Respondent judgment on admission pursuant to Order 23 of the High Court, Civil Procedure Rules, C.I. 47.
PARTICULARS OF ERROR.
a. The Court in determining an application for judgment on admission upon failure to answer a notice to admit fact, ought to consider the entire record, statement of defence and pleadings of the Defendant, in determining the application for judgment on admission.
b. The matters sought to be admitted in the said notice of admission, the basis of the judgment on admission had been denied by the Defendant in the entire record, statement of defence and pleadings of the defendant.
c. The Court can only grant declaratory reliefs as endorsed on the Plaintiff’s writ of summons and statement of claim only after the parties adduce evidence and there is argument made by the parties.
d. An allegation and relief for fraud as pleaded by plaintiff in his statement of claim could only be determined by the High Court upon trial on evidence and argument.
e. The monetary claims of the Plaintiff were intricated and dependent on the declaratory relief of fraud claimed by the Plaintiff against the Defendant.
II)
The Court below erred in finding that the ground of appeal “the judgment is against the weight of affidavit evidence” is inapplicable in the present case.
i. The judgment on admission is a final judgment, and as such the omnibus ground of appeal may properly be invoked in law.”
I discuss the ground (I) of the appeal, which attacks the procedure under which the application for judgment on admission was granted. The Defendant’s position is that the judgment obtained under admission was wrong by the fact that he had denied all the material averments in the Plaintiff’s claim and his refusal to deny or admit the facts contained in the notice filed in pursuance to Order 23 rule 2(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) did not give jurisdiction to the High Court to proceed with the matter and enter judgment against him. The High Court granted the application based on the ratio in Ewusie-Mensah v Ewusie Mensah and Another [1992] 1GLR 271, SSB v Biney [1997-98] 2GLR 886, and Michelleti Dolla v Crabbe [1976] 1 GLR 108. The ratio in Ewusie-Mensah v Ewusie Mensah and Another, supra, was about a plaintiff who admitted some facts in both his evidence-in-Chief and cross-examination, and the Defendant filed an application for judgment on admission, and the High Court held that judgment on admission can be made at any stage of the proceedings, but cannot be premised on oral evidence. In fact, the ratio has nothing to do with the case in point, and the High Court could not have used it to persuade itself. In the case of Michelleti Dolla v Crabbe [1976] 1 GLR 108, there is also a case where the Plaintiff orally made an application for admission at the application for directions stage and was granted, but the Court of Appeal reversed it on the grounds that judgment on admission cannot be made upon oral application. The case in point is also not relevant to the case under consideration.
The ratio in SSB v Biney [1997-98] 2 GLR 686, is that where a defendant in its pleadings admits part of a liquidated amount and the admission is unequivocal, the court shall enter judgment on admission upon an application filed for that purpose. The case does not relate to a notice to admit or deny, in which the defendant denied some averments in the pleadings, and his failure to respond to the notice is considered an admission that replaces those averments in his statement of defence.
The Court of Appeal in affirming the decision of the High Court relied on Order 23 rules 1, 2, and 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and applied it strictly to overrule the averments in the statement of defence which denied all the material averments in the statement of defence and substituted same with the legal effect of failure to respond to notice to admit or deny and held that the Defendant is deemed to have admitted the truth of the questions posed. I proceed to quote extenso Order 23 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). It provides thus:
“1. A party to a cause or matter may give notice, by that party’s pleadings, or otherwise in writing, that the party admits the truth of the whole or part of the case of any other party.
2. (1) A party May at any time, by serving a request to admit, request any other party to admit for the purposes of the cause or matter only, the truth of a fact or authenticity of a document. The request shall be as in Form 12 in the Schedule.
(2) A copy of any document mentioned in the request to admit shall, where practicable, be served with the request, unless a copy is already in the possession of the other party.
3. (1) A party on whom request to admit is served shall respond to it within fourteen days after it is served by serving on the requesting party a response to request to admit. The response shall be as in Form 13 in the Schedule.
(2) Where the party on whom the request is served fails to serve a response as required by subrule (1), the party shall be deemed, for the purposes of the cause or matter only, to admit the truth of facts or the authenticity of the documents mentioned in the request to admit.
(3) A party shall also be deemed, for the purposes of the cause or matter only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party’s response (a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or
(b) Refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.”
From the records of appeal, both the High Court and the Court of Appeal relied on Order 23 rule 3 (3) of C.I. 47 to give judgment for the Plaintiff regardless of the Defendant’s statement of defence, which admits that he signed the undertaking but was not voluntary, that would require evidence to resolve it. The basic rules for statutory interpretation are that a statute must be read as a whole to ascertain the intention of parliament or the purpose for which the text is meant to achieve. The purpose of admissions in civil proceedings is to ensure that a practical approach is used to hold parties to clear admissions that render a trial unnecessary. The Notice of Request to Admit or Deny must be made in good faith with regard to matters in the pleadings that are not clear. Where facts have been clearly denied by a party, the other party shall not request the party to admit or deny; the response or denial to the admission would be substituted for the parties’ pleadings, which is binding on that party. The essence of the Notice of Request to Admit or Deny is to ensure that facts which have not been admitted or denied by the party are answered to facilitate the hearing of the matter, and it is not meant to truncate trials in respect of matters where evidence would be required.
The general position of statutory interpretation is that all laws shall be interpreted to receive a sensible interpretation in order to ensure that general terms are interpreted within the text and not to lead to injustice, oppression, or absurd consequences. It is the duty of the courts to interpret broad language in a law within its purpose or the intention of the legislature even in cases where it is not within the letter and therefore cannot be within the law to ensure that the interpretation will not lead to absurdity. In church of Holy Trinity v. United States, 143 U.S 457(1892), the U.S. Supreme Court stated in statutory interpretation thus:
“It is the duty of the Courts, under those circumstances, to say that, however broad the language, of the statute may be, the act, although within the letter is not within the intention of the legislature, and therefore cannot be within the statute”.
The approach adopted by both the High Court and the Court of Appeal to interpret Order 23 rule 3 is not within the intention of the legislature and therefore cannot be within the Rules, and should have been limited to matters which are unclear in the pleadings of the Defendant.
The English Court of Appeal case of Gibbings v Strong (1884) 26 ChD 66, one of the locus classicus on admissions, provides that a judgment or order may be made on admissions in pleadings or in any other way, including affidavits, correspondence, or other documents, provided they are clear and unequivocal that the defendant has not got any defence. The court further held that its power to act on admissions is discretionary, and that it must satisfy itself that the case is appropriate for judgment on admissions; otherwise, the parties shall proceed to trial.
The case of Graves v Terry (1882) 9 QBD 170, also provides that a party cannot force an admission on another party through pleading rules where the pleadings suggest that the defendant has a valid defence to the merits of the action, and the courts shall not enter a judgment simply based on a strict interpretation of admissions in the pleadings. The principle is that admissions are not intended to create technical traps that compel a defendant with a valid defence to admit a case he intends to defend. The court’s discretion to enter judgment based on admission shall be exercised where there is no ambiguity and the admission is clear and unequivocal.
In the case in point, the Plaintiff pleaded fraud against the Defendant and provided particulars of same. The trite position is that fraud is a scarlet sin, and whenever fraud is pleaded, the party who pleaded it has an onerous burden to prove the issue of fraud beyond a reasonable doubt. From the record of appeal, the High Court and the Court of Appeal permitted the Plaintiff to use admissions to discharge the evidential burden imposed on him by law under the guise of his failure to respond to Notice of Request to Admit or Deny. It was premature for the High Court to give judgment regardless of the plea of fraud, which could only be proved upon evidence.
I am of the considered opinion that Order 23 of C.I. 47 is not meant to set a technical trap to force parties to admit a case they have categorically denied in their pleadings, and any interpretation of Order 23 of C.I. 47 that would substitute the response to a Notice of Request to Admit or Deny the truth of a fact or an authenticity of a document for facts contained in a pleading shall be rejected, and the courts below fell into a trap when they substituted the defendant’s failure to respond to the notice for his pleadings.
Order 23 rule 3 of the High Court (Civil Procedure) Rules, C.I. 47 on the effect of Notice of Request to Admit or Deny the truth, shall be given its ordinary meaning within the context in which judgment on admission can be entered by taking into account the subject matter, the scope, the purpose, and, to some extent, the background. In this era of purposive interpretation, there is no concentration on language to the exclusion of the context, and within the context of the rules, Notice of Request to Admit or Deny the truth shall be limited to matters where there is neither a clear admission nor a denial.
Assuming that Order 23 of C.I. 47 is to be interpreted strictly, so that the Defendant’s refusal to respond to the Notice of Request to Admit or Deny amounts to admission, the two courts below could not have given judgment to the Plaintiff if they had examined the questions contained in the notice. The Courts below held that the Defendant is deemed to have admitted the following:
“a. Sometime in 2016, Respondent collected USD 600,000.00 from the Plaintiff as payment for 0.58 acres of land situated at North Labone, Accra.
b. Respondent subsequently collected GH¢80,000.00 for stamp duty from the Plaintiff.
c. Respondent failed to give possession of the said land to the Plaintiff after receiving the said payments.
d. Respondent signed an undertaking on the 19th of May, 2017, to refund the said USD 600,000.00 and the additional GH¢80,000.00 within thirty (30) days.”
The Defendant in paragraph 5 of his statement of defence pleaded thus:
“5. The Defendant says that the said undertaking was not voluntarily made by him.”
The parties joined issues with the undertaking and issue (c) of the application for directions filed on 1st February, 2019 attests to that, and it provides thus:
“(c) Whether or not the undertaking dated the 19th day of May, 2017 was made by the defendant voluntarily.”
As stated above, assuming that all four questions were admitted or deemed admitted, the question of whether the undertaking was voluntarily made ought to be proved, as the questions did not cover that issue and would require evidence to do so.
The High Court and the Court of Appeal heavily relied on the U.S Southern District of New York case of United States v Young, No. 87 CIV 9159, 1990 WL 135734, on admission, whose rules are completely different from those in Ghana. The U.S Court, which the courts below allowed themselves to be persuaded by, is analogous to the High Court in Ghana, and where there are decisions from the Common Law and the Supreme Court of Ghana, which are binding on the courts, the courts are bound to follow the decisions of the received Common Law and those of the Supreme Court. The legal effect of failure to respond to a Notice to Request to Admit or Deny the truth of a matter or the authenticity of documents was discussed by the Supreme Court in the case of John Dramani Mahama v Electoral Commission & Nana Addo Dankwa Akuffo-Addo (unreported, Writ No. J1/ 05/ 2021, Judgment of 4th March, 2021, and the Supreme Court held that where facts to be provided to a Notice to Request to Admit or Deny the facts in a notice are already contained in the pleadings or evidence or both, failure to respond would not amount to admission. The Supreme Court, speaking through Anin Yeboah, CJ, held thus:
“Contrary to counsel for the Petitioner’s written address that paragraphs 13 and 14 of the Petition stand unchallenged on record by virtue of Order 23 rules (1) and (3) of the High Court (Civil Procedure) Rules, C.I. 47, since the 1st Respondent failed to answer the Notice to Admit Facts served on it the Petitioner tendered Exhibit “B” the Press Release of the 1st Respondent dated 10 December, 2020. The pleadings, Exhibit “B”, and the testimony of PW1 spoke to issues raised in this request to Admit Facts…”
The Defendant’s pleadings speak to all the questions contained in the Notice, and failure to respond to them would not constitute an admission, and same cannot be substituted for the averments contained in the statement of defence. The Defendant, in his paragraphs 4 and 5 of his statement of defence, averred that the land was validly granted to the Plaintiff by a company known as Regards Promotions through its Managing Director, Bahoumson Umar, and would put the Plaintiff to strict proof of his averments contained in paragraphs 4, 5, 6, 7, and 8 of his statement of claim. Whether he took the money for himself or for the company cannot be determined from the pleadings and would require evidence to resolve it.
Ground 1 of the appeal succeeds, and the suit is remitted to the High Court for trial of all issues raised in the application for directions, to be resolved based on the evidence on record.
Ground 2 of the appeal is misconceived as no evidence was adduced before the High Court; furthermore, there was no affidavit evidence that was considered, and it is wrong to state that the judgment is against the weight of evidence on record. The dismissal of this ground of appeal is inconsequential to the order made by this court to remit the case to the High Court for evidence to be adduced in accordance with the law.
The proceedings are remitted to the High Court, differently constituted for a trial.
(SGD.) D. D. ADJEI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALFRED AGYEI-MENSAH ESQ. FOR THE DEFENDANT/APPELLANT/APPELLANT.
CHARLES TETTEY ESQ. FOR THE PLAINTIFF/RESPONDENT/RESPONDENT WITH
REDEEMER ADJAKU ESQ. AND PRAISE ARTHUR ESQ.
