Striking out pleadings in Ghana case law.

The only evidence before the learned judge was affidavit evidence, and if the only ground on which a statement of claim can be said to disclose no reasonable cause of action is, as Mr. Reindorf contends, that the action is unlikely to succeed, then affidavit evidence is inadmissible on an application to strike it out.

GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v. SALIFU AND OTHERS [1975] 2 GLR 246 [1975] SLR (CA) 24 · Court of Appeal · 1975 · AZU CRABBE CJ

In this case, whether the first defendant had the power to do what he did, or whether some members of the Ghana Muslims Representative Council can by a resolution at a national convention reconstitute the national executive committee of the council, depends on the true construction of the terms of the rules of the constitution. This cannot be done until either a defence has been filed so that the court can deal with the case under Order 25, rr. 2 and 3 of L.N. 140A or unless the court has heard evidence. The court will not permit a plaintiff to be “driven from the judgment seat,” without considering his right to be heard, “excepting in cases where the cause of action is obviously and almost incontestably bad”: per Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410 at p. 419, C.A. And again, as the Lord Justice said later in the same case at p. 420 “an order of this kind ought not to be made where there is any reasonable ground for argument as to the maintainability of the action.”

GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v. SALIFU AND OTHERS [1975] 2 GLR 246 [1975] SLR (CA) 24 · Court of Appeal · 1975 · AZU CRABBE CJ

Order 25, r. 4 reads: “The Court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.” It seems obvious that Mr. Reindorf s appeal here is to rule 4. How is the power under this rule to be exercised ? It is clearly a matter in the judicial discretion of the judge, and a pleading will only be struck out under the rule in a plain and obvious case, where it is apparent that even if the facts are proved, the plaintiff is not entitled to the relief he seeks: Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. [1899] 1 Q.B. 86 at p. 91, C.A.; Barton, Thompson & Co., Ltd. v. Stapling Machines Co. [1966] 1 Ch. 499. The jurisdiction conferred by this rule, it has been said, is one, to be exercised with extreme caution: Moore v. Lawson (1915) 31 T.L.R. 418 at p. 419, C.A.

GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v. SALIFU AND OTHERS [1975] 2 GLR 246 [1975] SLR (CA) 24 · Court of Appeal · 1975 · AZU CRABBE CJ