Division: IN THE HIGH COURT, ACCRA
Date: 14 AUGUST 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
This is an application by the defendant for further and better particulars under Order 19, rule 7 of the Supreme [High] Court (Civil Procedure) Rules, 1954.1 It seems strange that although Order 19, r. 8 provides that before applying for particulars by summons or notice, a party may apply for them by letters, the applicant has sought to apply in the first instance to the court. At the time of the hearing of the application I had every reason to strike off the application but my hand was tied down by the use of the word “may” in rule 8. Nevertheless I wish to stress that in future unless rule 8 is complied with in the first instance, I shall not consider any application to the court under rule 7 for further and better particulars.
Indeed, the practice in England as stated in the White Book is that the master will insist that the applicant should apply in the first instance to the other party by letter. I am convinced that that has been the practice in Ghana. The equivalent of the Ghana rule 7 in the English Rules also uses the word “may” but in practice the proper step is to apply in the first instance by letter.
Order 19, r. 4 provides that every pleading shall state material facts only and not the evidence by which they are to be proved. Other 19, r. 9 also provides that: “Particulars of a claim shall not be ordered under Rule 7 to be delivered before defence unless the Court or judge shall be of opinion that they are necessary or desirable to enable the defendant to plead or ought for any other special reason to be so delivered.” I have considered the particulars asked for in the application very carefully and I am unable to say with confidence that the particulars sought are necessary to enable the applicant to deliver his defence or that there are special reasons for their delivery under an order of this court. Learned counsel for the applicant sought to rely on the cases of Milbank v. Milbank,2 Marshall v. Inter-Oceanic Steam Yachting Co.3 and Spedding v. Fitzpatrick.4 I cannot find any principles of the law of pleading in these cases which justify
the applicant in making this application. In Spedding v. Fitzpatrick Cotton L.J. stated5:
“The object of particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise . . . The old system of pleading at common law was to conceal as much as possible what was going to be proved at the trial, but under the present system it is our duty to see that a party so states his case that his opponent will not be taken by surprise.”
In the present suit, the statement of claim has given the applicant sufficient information to enable him to prepare his defence. All the particulars requested by the applicant are matters of evidence by which the respondent may seek to prove his title. Order 19, r. 4 clearly prohibits the inclusion of matters of evidence in pleadings and the respondent is therefore under no obligation to provide the particulars sought by the application.
The particulars sought are by their very nature interrogatories without the question mark at the end of each sentence. In Lister v. Thompson6 the court refused to order further particulars, describing the particulars required as a series of interrogatories and oppressive and an attempt to evade the practice and rules of the court.
The applicant has also asked the respondent to confirm whether or not the necessary consent and concurrence of the minister has been obtained under the Local Government Ordinance.7 This Ordinance has been repealed8 and I cannot see the purpose of the request unless the applicant has another act in mind, i.e. the Administration of Lands Act, 1962.9 If the intention of the applicant is to raise the illegality or nullity of the respondent’s grant it seems to me that it is not necessary to plead such illegality. In North-Western Salt Co. Ltd. v. Electrolytic Alkali Co., Ltd.10 Vaughan Williams L.J. stated as follows11:
“I do not think that to raise a question of illegality it is necessary that the defence of illegality should be pleaded, for the Court is bound to deal with illegality of its own motion, and it matters not one bit which side puts in the document disclosing illegality.”
Farwell L.J. also put it this way: “When it is apparent on the face of a contract that it is unlawful, it is the duty of the judge himself to take the objection, and that, too, whether the parties take or waive the objection.”12 The same learned judge stressed that the rule which deals with illegality, etc. does not abrogate or limit rule 4 but points out that certain facts must be pleaded if certain points are to be raised. If, for instance, the contract sued on is ex facie illegal or void there are no facts to plead and the defendants are not bound to plead that it is illegal because that is law, not fact; but if it is not so ex facie and he desires to raise the plea on facts ultra, they must plead those facts.
I am therefore of the opinion that the particulars sought by the applicant in this application are not necessary and that the application should be refused. The application is therefore dismissed and struck off with 20 guineas costs.
DECISION
Application refused.
T. G. K.
