Adjudicating on a matter not raised in the pleadings
In my view the court, after inspecting the land or at least after the plan had been prepared, should have either nonsuited the plaintiff with liberty to bring fresh action or else should have ordered fresh pleadings to be filed so as to reflect and show clearly on the pleadings the subject-matter of contention between the parties. Not having done this, it was in my view incompetent for the court to adjudicate on a matter not brought before it by the parties: see Kwame v. Barnier6
We would first comment that the learned judge was at this juncture departing completely from the pleadings, the issues settled in the summons for directions and the evidence adduced; and was constructing a new and inconsistent case for the parties. The action was based squarely on the well-known equitable doctrine of specific performance.
Ascertaining the claim where there are no pleadings
The suit being one in a local court where there are no pleadings, we have to look, not only at the wording of the writ, but also at the whole of the proceedings to ascertain the real nature of the plaintiff’s claim and the issues raised.
Ascertaining the issues where there are no pleadings
It is trite law that in suits before native tribunals where there are no pleadings, the real issues for trial are ascertained by reference to the evidence in the case and not by looking merely at the claim on the writ of summons.
In the case of England v. Palmer (14 W.A.C.A. 659) it was held: “(1) In a trespass action an averment of ownership is consistent with, and amounts to, an averment of possession, for ownership may be proved by proof of possession. (2) The allegation, in such an action, that the plaintiff is owner puts possession and not ownership in issue, as possession is all that he need prove”.
An allegation that agreed prices were exceeded presupposes that prices were agreed; it is the precise opposite of the case the appellant now advances, that no price was ever agreed. The two positions cannot stand together, and a party may not run both. This migration from “the agreed prices were inflated” to “there were no agreed prices” is exactly the kind of fundamental shift between a party’s pleaded case and its argument which should disentitles it to relief on the point.
It follows, therefore, that the High Court may entertain a suit in which a judgment of the Supreme Court is sought to be impeached on grounds of fraud. Whether or not a judgment of a Court was obtained by fraud is a mix question of law and facts. Indeed, where a party pleads fraud in an action, that party is required to give particulars of the alleged fraud and marshal evidence at the trial to prove the allegation of fraud.
It is a cardinal principle of law that parties are bound by their prior pleadings and cannot approbate and reprobate whenever it suits their interest or is advantageous for them to do so. Pleadings constitute the foundation upon which every civil action is built. It is through the pleadings that each party discloses the material facts upon which he relies and it is those pleaded facts that determines the evidence that a party could properly lead. Consequently, a trial Court is enjoined to evaluate the evidence before it against the backdrop of the pleaded case.
Unfortunately, however, no authority was cited or referred to in support or confirmation of such an important and far-reaching proposition; and what is more important is, that it appears to be plainly in conflict with a number of local as well as English authorities, both prior and subsequent to it, which have established the rule that a court in determining or deciding the issues in a case, is in the last resort, bound to have regard to and decide only those issues, or material controversial facts, of which notice has been given in or by the pleading of a party and thereby raised for determination.
It seems to me that it is the purpose of such particulars that they should help to define the issues, and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant, and how much irrelevant, to those issues. Proper use of them shortens the hearing and reduces costs. But, if an appellate court is to treat reliance on them as pedantry or mere formalism, I do not see what part they have to play in our trial system....In my view, where the question is, as here, as to sufficiency of evidence, the state of the pleadings is of more importance than the way in which the case is shaped in argument.
To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.
Reply to plead new facts in answer to a defence of limitation
If counsel intended to put forward the further explanation now advanced in the final address, he was in duty bound to give notice of it by filing formal reply “confessing” that the original cause of action set up as consisting in the recording of the records and selling same did lapse; but then alleging or setting up new acts, as now stated in the final address, that there had been continuance of sale of the offending records within a period of three years before the action was brought, in respect of which the plaintiff was entitled to maintain an action. That not having been done, however, in my view, no question of fresh acts within three years of action brought arose at all for consideration
