Order 13 rule 6: default judgment on claims not otherwise provided for
We think that the purpose of the insistence that the courts make declarations only after hearing the parties is sufficiently retained in Order 13 rule 6 ( 1) and (2) of the High Court Rules, CI 47 by the requirement that in actions to which the claim that resulted in the judgment in which the declaratory judgment was granted (actions not specifically provided for), the court shall give such judgment as the plaintiff may be entitled by his statement of claim.
Order 2 rule 4(2): indorsement of residence outside Ghana
In the case of an action commenced on behalf of a person resident outside Ghana, Order 2 Rule 4(2) of C.I. 47 requires that the fact of the said residence outside Ghana and the plaintiff’s residential address outside Ghana, must be indorsed on the writ of summons before the writ is filed. Failure to make these indorsements has been held to go to the very existence or capacity of the plaintiff to be able to institute the action. Accordingly, the Court has not hesitated to declare as non-existent a plaintiff whose residential address outside Ghana is not disclosed on the writ of summons but on whose behalf a writ has been issued in Ghana. The implication has, therefore, been that the writ issued on behalf of such undisclosed or non-existent persons is void for want of capacity to sue.
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.
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.
Where a case is called, as in the instant matter, and a party is present but refuses to participate in the trial for the reason that his lawyer was not present, the court has every power under its case management functions to deal with the case in any manner which the court deems fit including adjourning the matter to another date or by striking it out and hearing the other party who was ready to be heard on his claim.
Order 4 rule 5(2)(b): joinder of a necessary party
My Lords, I respectfully recognize that, upon the true and proper interpretation of Order 4 rule 5(2) of C.I. 47, an application for joinder ought to be granted where the presence of the party is necessary to ensure that all matters incidental to the proceedings are effectually and completely determined.
Order 4 rule 9(1): suit by or against the occupant of a stool or skin
Order 4 rule 9(1) of C.I.47 which did not exist in the old Civil Procedure Rules 1954 (LN140A) clearly permits the occupant of a stool or skin or the regent or caretaker where the stool is vacant to sue and be sued on behalf of or as representing the stool. This provision thus clothes the occupant of a stool or skin to represent the stool or skin and also be sued on behalf of stool or skin.
Order 63 rules 8 and 10: damages for infringement of an intellectual property right
It is refreshing to observe that the three factors to consider in awarding damages as stated above have, by and large, been codified in the High Court (Civil Procedure ) Rules, 2004 (C.I. 47). Order 63 Rules 8 and 10 thereof provide: 8.1) Where in an action for actual or threatened infringement of an intellectual property right the infringement is proved, the Court may order the party responsible for the infringement to pay to the right holder damages which are adequate to compensate for the injury, the right holder has suffered 2) The Court may in addition to awarding damages under sub rule (1), order a person whom it has found to have infringed the property right of a right holder, to pay the costs of the right holder 10. The Court may in an action for actual or threatened infringement of an intellectual property right, having regard to the circumstances and in particular to (a) The flagrancy of the infringement, and (b) The benefit accruing to the defendant by reason of the infringement award additional damages as the case may require.
Order 81: non-compliance with the rules and a breach of natural justice
So fundamental is the right of hearing that when there is a breach notwithstanding the clear provisions of Order 81 of CI 47, which has brought into being a new regime of non-compliance with the rules of procedure, proceedings that suffer from its breach cannot be rectified by courts. When this occurs, we think that the court has no discretion in the matter but to make an accession to the relief of certiorari.
Order 82 Rule 3 of CI 47 on Interpretation define ‘writ’ to include a writ of summons and statement of claim or a petition in a cause or matter. This expansive definition of a writ under CI 47 does not include originating notice of motion under any enactment under Order 19. Counsel for the Respondents’ contention that the originating motion on notice ought to have been indorsed with the representative capacity of the deponent to the affidavit is to our mind unlikely, unconvincing, and far-fetched. Originating motion on notice is not a writ as defined under CI 47.
