BANK OF WEST AFRICA LTD. v. HOLDBROOK [1966] GLR 164

Division: HIGH COURT, CAPE COAST

Date: 14 FEBRUARY, 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D. 489; 56 L.J.Ch. 1081; 57 L.T. 337; 36 W.R. 217; 3 T.L.R. 848.

(2) Attorney-General of Duchy of Lancaster v. London and North Western Rly. Co. [1892] 3 Ch. 274; 62 L.J.Ch. 271; 67 L.T. 810, C.A.

(3) Day v. William Hill (Park Lane), Ltd. [1949] 1 K.B. 632; [1949] L.J.R. 689; 65 T.L.R. 73; [1949] 1 All E.R. 219, C.A.

(4) Lawrence v. Lord Norreys (1890) 15 App.Cas. 210; 59 L.J.Ch. 681; 62 L.T. 706; 38 W.R. 753; 54 J.P. 708; 6 T.L.R. 285, H.L.

(5) Dyson v. Attorney-General [1911] 1 K.B. 410; 81 L.J.K.B. 217; 105 L .T. 753; 27 T.L.R. 143; 55 S.J. 168, C.A.

NATURE OF PROCEEDINGS

INTERLOCUTORY APPLICATION by the defendants to have an action struck out under Order 25, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

COUNSEL

Kudjawu for the applicants.

Respondent in person.

JUDGMENT OF ARCHER J.

This is an application by the defendants under Order 25, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 for an order to strike out the plaintiff’s statement of claim and the writ of summons on the ground that “it discloses no reasonable cause of action and is frivolous and vexatious and that the defendants be at liberty to sign judgment for their costs of defence and this application.” 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.”

The endorsement on the plaintiff’s writ of summons reads:

“(a) The plaintiff’s claim is for a document made on or about 31 August 1962 to be set aside on the ground that it was obtained by fraud and undue influence . . .

[p.166] of [1966] GLR 164 (b) ¢84,000 (eighty-four thousand cedis) damages for breach of contract, fraudulent misrepresentation and deceit.”

Then the crucial paragraph among other paragraphs in the statement of claim reads:

“(3) On or about 31 August 1962, the defendant bank in breach of the contract through their London agents at 37 Grace Church Street, London, E.C. 3, England, aforesaid, made untrue statements to the plaintiff in consequence of which the defendant bank obtained a document made on or about 31 August 1962, from the plaintiff by false representation.”

The plaintiff has since filed notice asking leave to amend 31 August 1962 to read 31 July 1962. The defendants in support of their application filed an affidavit of fifteen paragraphs together with copies of seven documents including the document dated 31 July 1962 as exhibits for consideration by the court. The plaintiff also filed an affidavit, containing fourteen paragraphs with exhibits, in opposition and has since filed another notice asking leave of the court to amend his statement of claim by adding particulars of claim and damages as follows:

“Loss of earnings and injury to credit, consortium and comfort for 5 years 1961 to 1966 at £G4,000 per annum £G20,000

Interest on £G2,000 for 10 years at £100 1,000

General damages 14,000

£G35,000”

This is a magnificent and handsome claim which would increase the flow of saliva even in the mouth of a wealthy man.

I think the law on Order 25, r. 4 is settled. In Republic of Peru v. Peruvian Guano Co.,2 Chitty J. said: “On this point the Defendants tendered affidavits to shew what his authority was and that it had not been exceeded. But under rule 4 no affidavit is admissible. That is plain from the terms of the rule itself. In regard to the second branch of the rule relating to the stay of frivolous and vexatious actions, the inherent jurisdiction of the Court over these actions remains unaffected, and on an application to stay a frivolous or vexatious action affidavits are admissible, not by virtue of the rule, but of the general jurisdiction of the Court.”

[p.167] of [1966] GLR 164

There is also authority in Attorney-General of the Duchy of Lancaster v. London and North Western Rly. Co.3 where Lindley L.J said, “It appears to me that the object of the rule is to stop cases which ought not to be launched—cases which are obviously frivolous or vexatious, or obviously unsustainable.” Lopes L.J. in the same case and at the same page clarified this principle when he said no reasonable cause meant “no reasonable cause disclosed upon the face of the pleadings.” A. L. Smith L.J. went further and said4: “It seems to me that when there is an application made to strike out a pleading, and you have to go to extrinsic evidence to shew that the pleading is bad, that rule does not apply. It is only when upon the face of it it is shewn that the pleading discloses no cause of action or defence, or that it is frivolous and vexatious that the rule applies. In this case it is manifest that you must go to extrinsic evidence to shew that the pleading is bad, and directly it comes to that, the rule does not apply.”

I am also fortified with the modern case of Day v. William Hill (Park Lane), Ltd.5 where Bucknill L.J. repeated the principle in the following words:

“When one is considering whether an action is frivolous and vexatious one can, and must, look at the pleadings and nothing else. The court cannot assume that possibly, when the case comes to trial the plaintiff may be able to put forward some other and better reason for succeeding. One must look at the pleadings as they stand.”

In the present case the plaintiff has alleged misrepresentation, fraud and undue influence without giving full particulars. I think the law on the point is clear. Order 19, r. 6 provides that: “In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading; provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading.” If one looks at the statement of claim, there is no doubt that the averments relating to misrepresentation, fraud and undue influence

[p.168] of [1966] GLR 164 contain no sufficient particulars. To enable the defendants to appreciate the nature of the case against them, to prevent them from being taken by surprise, to enable them to know what evidence ought to be prepared for trial, to limit and define the issues to be tried and to tie the hands of the plaintiff so that he cannot without leave go into any matters not included, it is essential that the charges of fraud and misrepresentation must be pleaded with the utmost particularity.

However these defects in pleading are not fatal and do not in limine entitle a court of law to dismiss an action on the ground that the pleadings do not disclose any reasonable cause of action. The defendants are at liberty to ask for particulars under Order 19, r. 8 and if the plaintiff refuses to deliver them, the defendants are at liberty to apply to the court for an order. One should have thought that the defendants would resort to these privileges first.

It may be argued that even though I am not prepared to entertain the application under Order 25, r. 4 because extrinsic evidence would be necessary before deciding whether or not the statement of claim discloses no reasonable cause of action or it is frivolous and vexatious, yet I may wish to exercise the inherent jurisdiction of the court to dismiss this action as being frivolous, vexatious and as an abuse of the process of the court after considering the extrinsic evidence, that is, the affidavits filed by both parties. My answer is very simple. The application before me does not in the alternative invoke the inherent jurisdiction of the court and I am most unwilling on my own initiative to exercise that discretion. Lord Herschell in Lawrence v. Lord Norreys6 speaking of this jurisdiction to dismiss actions in limine said, “It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases,” and Fletcher-Moulton L.J. in Dyson v. Attorney-General said7:

“Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. But from this to the summary dismissal of actions because the judge in chambers does not think they will be successful in the end lies a wide region, and the Courts have properly considered

[p.169] of [1966] GLR 164 that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in cases where the action is an abuse of legal procedure. They have laid down again and again that this process is not intended to take the place of the old demurrer by which the defendants challenged the validity of the plaintiff’s claim as a matter of law. Differences of law, just as differences of fact, are normally to be decided by trial after hearing in Court, and not to be refused a hearing in Court by an order of the judge in chambers . . . To my mind it is evident that our judicial system would never permit a plaintiff to be ‘driven from the judgment seat’ in this way without any Court having considered his right to be heard excepting in cases, where the cause of action was obviously and almost incontestably bad.” I have taken the decision not to exercise the court’s inherent power although not invoked by the defendants because the plaintiff is not acting through solicitors and not represented by counsel. The writ of summons, the statement of claim and the proposed amendments were presumably drafted by himself. Before the hearing of the application, counsel for the defendants protested at the presence of the plaintiff at the table reserved for the Bar but the plaintiff, after inquiry by the court as to his credentials, explained that although his name was not yet on the Roll of Lawyers in Ghana, he was “in the process of “ having ultimately his name inscribed in that Honourable Roll. Notwithstanding this revelation I am not prepared to credit him with sufficient knowledge of the subtleties and niceties of pleading while “he is in the process of” going through the mill. I think it would be unjust “to drive him away from the judgment seat” at this stage of his action. His present action is one in which fullness and candour of statement are more imperatively required but in which both have been if not studiously then inadvertently withheld. Nevertheless, stripped of its general assertions, I cannot say at this stage that the statement of claim presents to my mind a tissue of improbabilities which ought not to be sent to proof.

I therefore hold that:

(1) without extrinsic evidence, it is impossible to decide that the plaintiff’s action discloses no reasonable cause of action and is frivolous or vexatious as Order 25, r. 4 excludes such extrinsic evidence and enjoins the court to confine itself to the pleadings because the operative words in the rule are “being shown by the pleadings to be frivolous or vexatious,”

[p.170] of [1966] GLR 164

(2) that I am unwilling to invoke the inherent jurisdiction of the court, although not specifically prayed for by the defendants, as the defendants are at liberty to ask for full particulars of the charges of misrepresentation, fraud and undue influence in the statement of claim.

The application is therefore dismissed with liberty.

No order as to costs in view of the plaintiff’s default by not making his averments with the utmost particularity as required by law.

DECISION

Application dismissed with liberty to apply.

No order as to costs.

E. D. K.