AMISSAH-ABADOO vs. ABADOO [1973] 1 GLR 490

CASES REFERRED TO

(1) Bulley v. Akrong, Supreme Court, 21 June 1965, unreported; digested in (1965) C.C. 151.

(2) Reichel v. Magrath (1889) 14 App.Cas. 665; 59 L.J.Q.B. 159; 54 J.P. 196, H.L.

(3) Davey v. Bentinck [1893] 1 Q.B. 185; 62 L.J.Q.B. 114; 67 L.T.742; 41 W.R. 181; 4 R. 144, C.A.

[p.492] of [1973] 1 GLR 490 (4) Mayor & C. of the City of London v. Horner (1914) 111 L.T. 512,C.A.

(5) Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. [1899]1 Q.B. 86; 68 L.J.Q.B. 34; 79 L.T. 429; 15 T.L.R. 29; 43 S.J.41, C.A.

(6) 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.

(7) Tucker v. Collinson (1886) 16 Q.B.D. 562; 55 L.J.Q.B. 224; 54 L.T. 128, 263; 34 W.R. 354; 2 T.L.R. 313, C.A.

(8) Wright v. Prescott Urban Council (1916) 86 L.J.Ch. 221; 115 L.T. 772; 81 J.P. 43; 15 L.G.R. 41. (9) Moore v. Lawson (1915) 31 T.L.R. 418, C.A.

(10) Reid v. Hooley (1897) 13 T.L.R. 449, C.A.

(11) Attorney-General of Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch.

274; 62 L.J.Ch. 271; 67 L.T. 810, C.A.

NATURE OF PROCEEDINGS

APPLICATION by the defendant to set aside the plaintiff’s writ on the ground that it disclosed no reasonable cause of action. The facts are fully set out in the ruling.

COUNSEL

J. B. Short for the plaintiff.

Dr. Ekow Daniels for the defendant.

JUDGMENT OF EDWARD WIREDU J.

On 5 January 1973, the plaintiff-respondent (who shall hereafter be referred to simply as the plaintiff) issued out of this court a writ of summons against the defendant-applicant (who will also hereafter be referred to as the defendant) claiming:

“A declaration that house No. G.8/2, Tantri Lane, Cape Coast, as well as a plot of land at Kotokuraba Road, Cape Coast, are the property of the plaintiff’s family and not the private property of the late Barrister D.

Myles Abadoo.”

On 10 January 1973 the defendant entered a conditional appearance to the plaintiff’s writ. Twelve days thereafter (that is, 22 January 1973) at about 8.30 a.m. a statement of claim was filed on behalf of the plaintiff and round about 4 p.m. on that same day an application was filed on behalf of the defendant praying for an order that:

“[T]he writ of summons filed by Ebusuapanyin J. B. Amissah-Abadoo, the plaintiff on 5 January, 1973, be struck out under Order 19, rule 29 and under the inherent jurisdiction of the court on the ground that the endorsement discloses no reasonable care [sic] of action against the defendant and the plaintiff’s action against the defendant be dismissed, and that the defendant be at liberty to enter judgment for her costs including the costs of this application and for such further order or other orders as to this court may seem just.”

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The facts on which the defendant sought to rely are contained in an affidavit filed to support her application which reads as follows:

“(1) That I am the defendant herein and I was lawfully married to my late husband under the Marriage Ordinance.

(2) That after the plaintiff’s writ was served on me I caused a conditional appearance to be entered on my behalf.

(3) That to the knowledge of the plaintiff my late husband died testate. In the will which was read by the

Registrar to the hearing of the plaintiff the following persons were named as his executors:

(a) JOSEPH BROOKMAN AMISSAH (b) DANIEL MYLES ABADOO Junior (c) WILLIAM E. D. ACQUAH (late deceased).

(4) That probate of the said will has not been granted. I am advised and verily believe it to be so that by section 1 of the Administration of Estates Act ‘1961 (Act 63), until an executor is appointed, the property of my late husband is vested in the Chief Justice of Ghana.

(5) That I am therefore not the party to be sued for the declaration endorsed on the writ.

(6) I therefore swear to this affidavit in support of my application.”

The events which seemed to have provoked the plaintiff’s action are set out in paragraphs (8) to (13) of the plaintiff’s statement of claim and these are as follows:

“(8) House No. G.8/2, Tantri Lane, Cape Coast, was as a result built on the family land principally from funds provided by lawyer Abadoo but with contributions from other members of the family in particular from lawyer Abadoo’s mother who in addition actually supervised the building in the absence of lawyer Abadoo.

(9) Lawyer Abadoo was allowed by the family to have the exclusive enjoyment of house No. G.8/2,

Tantri Lane where he carried on the practice of his profession on the ground floor.

(10) On or about 31 December, 1972, the defendant and her son Daniel Abadoo informed the plaintiff and other members of his family that if by 10 a.m. that morning they had not surrendered the keys of lawyer Abadoo’s private apartments (which apartments according to custom were to remain closed for a year after the death of lawyer Abadoo) the plaintiff and his family would be taken to the Regional Commissioner, there to face the consequences.

(11) When this threat was ignored the defendant’s son forcibly broke open the closed apartments and ransacked the rooms; Daniel Abadoo explained his conduct by saying that the house had been bequeathed to his mother and her children and that he was the sole executor of his father’s will.

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(12) The plaintiff’s mother Sarah Abadoo bought a plot of land at Kotokuraba Road, Cape Coast, adjoining late Winful’s house, for plaintiff’s brother-in-law one Holdbrook then in Nigeria. After his death the land was given to plaintiff’s sister Mrs. Holdbrook. After her death her children mortgaged the land to raise funds for erecting, a corn-mill. Later lawyer Abadoo redeemed the land on the understanding that the children would repay him. In the event lawyer Abadoo died without the children being able to refund the sum of ¢180.00 involved.

(13) This land the aforesaid Daniel Abadoo, defendant’s son, now claims has been bequeathed to him under the so-called will of his father. Wherefore the plaintiff claims as per his writ of summons.”

It is clear from the events stated above that the defendant’s application was filed at a time when the plaintiff’s statement of claim had not been served on her.

The defendant’s application according to her counsel was brought under Order 19, r. 29 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). In support of the application Dr. Ekow Daniels counsel for the defendant submitted that the main ground of the defendant’s objection was that as against her the plaintiff’s writ did not disclose any reasonable cause of action. Learned counsel submitted that the property in dispute was vested in a man who died testate and therefore under section 1 (2) (b) of the Administration of Estates Act, 1961 (Act 63), the Chief Justice was the proper person to have been sued by the plaintiff. According to counsel the deceased who was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), died testate and as no probate of his will had been taken at the time of the issue of the plaintiff’s writ no interest in the property was vested in the defendant so as to make her liable to be sued. Counsel submitted that if an action was taken against a person before the property became vested in him or her then that action was misconceived since under section 1 (2) (b) of Act 63 the Chief Justice becomes the person in whom such property was vested and therefore the proper person to be sued in respect of the same. Continuing learned counsel argued that if the declaration sought by the plaintiff was granted the decision would not be binding on either the Chief Justice or the executors of the will. Counsel therefore contended that it was premature for the plaintiff to maintain his present action since the proper time to do so was after the grant of probate when the action could properly be maintained against the executors. Founding himself on the case of Bulley v. Akrong, Supreme Court, 21 June 1965, unreported; digested in (1965) C.C. 151, learned counsel submitted in the alternative that since the defendant as the widow of the late Abadoo could in law be safely presumed to be one of his personal representatives, she cannot be sued as such until she had taken out letters of administration. Counsel submitted that since the defendant on the authority of

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Bulley v. Akrong (supra) cannot sue in that capacity as an administratrix without having taken out letters of administration, she cannot be sued in that capacity because she could not be in a position to counterclaim against the plaintiff in that capacity. Counsel contended therefore that if the plaintiff’s action was against the defendant in that capacity then the action was misconceived because the defendant did not have that capacity. In any event submitted counsel, since the capacity in which the defendant was sued had not been disclosed the plaintiff’s action should be dismissed. Counsel finally submitted that the action had not been brought against the proper person in whom the property was vested.

Replying on behalf of the plaintiff, Mr. Short submitted that the submissions of learned counsel for the defendant were wholly misconceived both as to procedure and substantive law. He submitted that Order 19, r. 29 under which the application was brought conferred no such powers as were being sought by the applicant on the court. Counsel referred to Order 25, r. 2 and submitted that since the complaint of the defendant was that she was not the proper person to be sued, that should have been her defence to the plaintiff’s action and not a ground to have the plaintiff’s writ struck out as disclosing no reasonable cause of action. Counsel referred to Order 25, r. 5 and submitted that the plaintiff’s writ was within the language of that rule. On the substantive law counsel for the plaintiff submitted that where a testator named an executor properties devised in his will become vested in him on his death so that the power of distribution could be exercised before even probate was taken. Counsel submitted that the reliance placed by learned counsel for the defendant on Act 63 was wholly misconceived because according to him the property in dispute was not admitted to be part of the estate of the late Abadoo. Counsel argued that merely devising a property in one’s will did not vest title to that property in the testator. Counsel further argued that the authority of Bulley v. Akrong (supra) had no relevance to the present suit because as he put it “there was a statement of claim on file and had the defendant waited for the service of it on her she would not have brought her present application.” Counsel therefore invited me to dismiss the application as being unmeritorious.

Order 19, r. 29 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), under which the defendant’s application was brought reads as follows:

“The Court or a Judge may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of the action: and may in any such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client.”

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There can be no doubt that the above quoted rule does not vest the court with jurisdiction to strike out summonses or pleadings on such grounds as “disclosing no reasonable cause of action.” The appropriate rule for such a remedy under our rules of practice is Order 25, r. 4 which provides:

“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 is therefore apparently clear that the first leg of the defendant’s present application can only be entertained as having been brought under Order 25, r. 4. I must however at this juncture mention that Order 18, r. 19 of the English Rules of the Supreme Court in the 1964 White Book, that is, The Annual Practice, Part 1, p. 408 conveniently amalgamates the provisions of Order 19, r. 29 and Order 25, r. 4 of our own rules. Order 18, r. 19 as contained in the 1964 White Book is in the following language:

“1. The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1) (a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.”

I think learned counsel for the defendant must have had this particular rule in mind when preparing the present application. Be that as it may, I feel disposed to treating the application as if it were brought under Order 25, r. 4 of our own rules which also permit a combination of the rule and the inherent jurisdiction of the court which are the two prayers being sought by the defendant.

Now with Order 25, r. 4 as our weapon let us proceed to consider the propriety or otherwise of the defendant’s application. The defendant first entered conditional appearance to the plaintiff’s writ. The first issue

[p.497] of [1973] 1 GLR 490 to be considered is the propriety of that step. The first mention of conditional appearance in our rules is contained in Order 12, r. 24 which is in the following language:

“A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service.”

The corresponding rule in the White Book of 1961 is Order 12, r. 30. The wording of this latter rule is in identical language as our own Order 12, r. 24 quoted above. There is no other provision under our rules which permits by express words the entry of conditional appearance and like the English Rules one can safely presume that a conditional appearance is inherent in the practice under Order 12 generally. This being the case the next question is under what circumstances and conditions are conditional appearances permissible and how are these effected? The normal practice has been for a party seeking to enter a conditional appearance to obtain leave ex parte which is normally granted as a matter of course. The following notes appear under Order 12, r. 30 of the 1961 White Book, Part 1, p. 199:

“The term `conditional appearance’ means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid or for lack of jurisdiction. There is no real distinction between the term `conditional appearance’ and `appearance under protest.’ The latter term is more usually applied to an appearance by a person served as a partner under Order 48A. rr. 3 and 4, but who denies that he is a partner for entry of which no leave is required (Order 48A. r. 7).

Although this Rule speaks of obtaining `an order to enter or entering a conditional appearance’ (and this is always requisite in practice) the defendant has in fact the right to such an order in all cases where he shows a bona fide desire to raise a question directed to the validity of the proceedings. The purpose of the leave given ex parte by a Master is to prevent such qualified appearances being entered for the mere purpose of delay, and to limit a time on the expiration of which, if the defendant fails to apply to the Court to enforce his alleged objection, the appearance shall stand as unconditional, and the action proceed accordingly.

A conditional, appearance or appearance under protest is a complete appearance to the action for all purposes, subject only to the right reserved by the defendant to apply to set aside the writ or the service thereof, on any ground which he can sustain. A defendant has the right to appear conditionally where he has a bona fide intention to dispute the jurisdiction of the Court. The

[p.498] of [1973] 1 GLR 490 leave of the Master is required merely to prevent such proceeding from being abused e.g., where the condition is not inserted in good faith and merely for delay. The limit of time is inserted for the same purpose. The plaintiff is barred from taking any step based on the appearance (e.g. applying under Order 14), until the time fixed as above stated has expired, but he may apply to strike it out. At the expiration of the time fixed (see last proceeding note) if no application is made by the defendant, or if made has been dismissed, the plaintiff may proceed with the action as if an unconditional appearance had been entered. In considering what is `reasonable time’ for the defendant’s application, regard will be had to the circumstances of the case, and to whether the condition was inserted in good faith, or merely for the purpose of delaying the plaintiff.”

In the instant case no leave was sought. Even though this is permissible it is submitted that since our own rules governing the entry of conditional appearance are no different from the English rules the practice of insisting on leave being a pre-requisite to the entry of conditional appearance should be adopted not merely because of the provisions of Order 74 but also because the rationale underlying the necessity for asking for leave is sound. For it will be absurd to stay the hands of a plaintiff to an action from taking any further step for an unlimited period merely because a defendant has chosen to enter a conditional appearance.

Turning now to the circumstances under which a party is entitled to enter a conditional appearance, the authorities are all agreed that a defendant may enter a conditional appearance where he intends to have the writ or the service of the writ set aside on the ground of irregularity of the writ or the service of it or to deny jurisdiction. Irregularity here includes the irregularity in the issue or service of the writ or in the form of the writ. The defendant’s application does not attack the plaintiff’s writ on any of the above grounds. Her sole complaint is that the writ did not disclose any reasonable cause of action against her. Her grievance is not among those which justify her entering a conditional appearance, the conditional appearance therefore is out of place and will be treated as unconditional appearance which would entitle her to present her application under Order 25, r. 4.

With this issue now settled let me now proceed to examine the scope and application of Order 25, r. 4 and the inherent jurisdiction of the court under that rule. There is no dispute that the defendant is entitled to invoke both rule 4 and the inherent jurisdiction of the court. The latter jurisdiction empowers the court to stay or dismiss actions and strike out pleadings which are vexatious or frivolous or in any way an abuse of the process of the court: see Reichel v. Magrath (1889) 14 App.Cas. 665, H.L. There are however some distinctions in the application of the two. The principal distinction being that when the court is

[p.499] of [1973] 1 GLR 490 acting under its inherent jurisdiction evidence by affidavit may be received to show that a pleading is an abuse of the process of the court whereas under rule 4 the nature of the action or the defect in the pleading must appear by the pleading on the particulars and no affidavit is admissible: see Davey v. Bentinck [1893] 1 Q.B. 185, C.A. It is only in plain and obvious cases that recourse should be had to the summary process under rule 4: see the case of Mayor & C. of the City of London v. Horner (1914) 111 L.T. 512, C.A. If there is a point of law which requires serious discussion an objection should be taken on the pleadings and the point set down for argument under rule 2: see Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. [1899] 1 Q.B. 86, C.A. The powers conferred by rule 4 will only be exercised where the case is beyond doubt. The court must be satisfied that there is no reasonable cause of action and that the proceedings are frivolous or vexatious. A pleading, it had been held, will not be struck out under this rule “unless it is demurrable and something worse than demurrable” per Chitty J. in Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D. 489 at p. 496. Even though the rule does not stipulate what time an application under it should be made the general practice has been to insist on making the application promptly. It may be made before any defence is delivered but a stay will not be ordered before delivery of a statement of claim. Thus where it is sought to stay or dismiss an action the application should not be brought before the service of the statement of claim. The application may be brought even after the close of pleading, per Brett M.R. in Tucker v. Collinson (1886) 34 W.R. 354, C.A. Where however the only ground on which the application is brought is that the pleading discloses no reasonable cause of action or defence no evidence is admitted. Wright v. Prescott Urban Council (1916) 115 L.T. 772. In point of law every cause of action is a reasonable one, per Chitty J. in the Republic of Peru’s case. But the practice is clear that so long as the statement of claim or the particulars disclose some cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. See Davey v. Bentinck (supra) and Moore v. Lawson (1915) 31 T.L.R. 418, C.A. If however the action brought is solely for a relief which the court has no power to grant or if a relief be asked on a ground which is no ground for such relief, the statement of claim will be struck out and the action dismissed.

The application both under this rule and the inherent jurisdiction of the court is subject to allowing necessary amendments to defects in pleadings: see Reid v. Hooley (1897) 13 T.L.R. 449, C.A.

With the above analytical exercise of the scope and application of both rule 4 and the inherent jurisdiction of the court as a guide let us now examine the defendant’s objection to see how far her application succeeds or fails. The endorsement on the plaintiff’s writ is without doubt a claim for a declaratory order within the language and spirit of rule 5 of Order 25.

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The facts upon which the action is based are set out in unambiguous terms in the plaintiffs statement of claim filed to support the writ. Both the writ and statement of claim raise an issue of title to the house in dispute, i.e. whether it is the property of the plaintiff’s family or not. Events which have sparked off the plaintiff’s action against the defendant are also set out in the statement of claim. No statement of defence has been filed. The defendant’s contention is that she has been wrongly sued. It is not known on the pleadings so far filed why she is claiming to have been sued wrongly. The matters raised in her affidavit are matters she could properly have raised in her defence. The authorities do not permit admission of the matters raised in the affidavit as a ground for striking out the pleading on ground of disclosing no reasonable cause of action. The rule being that what is defective must appear on the face of the pleadings sought to be struck out: see Attorney-General for the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch. 274. In holding this latter view I am not unaware that the defendant is also seeking to invoke the inherent jurisdiction of the court which may admit evidence by affidavit. The defendant’s application however is not specific as to which of the grounds inherent in the court’s jurisdiction that she is invoking. Paragraph (10) of the plaintiff’s statement of claim which is properly before the court states in no uncertain terms why the present action has been maintained against the defendant. I therefore share the view of learned counsel for the plaintiff that had the defendant waited for service on her of the statement of claim she might have reconsidered her position. In my ruling both the endorsement on the writ and the supporting statement of claim disclose a reasonable cause of action against the defendant.

The defendant’s reliance on Act 63 is untenable and I do not feel disposed to going into correctness or otherwise of the arguments submitted thereon by counsel. In like manner I do not feel inclined to discuss the reliance placed on the authority of Bulley v. Akrong (supra) as the point raised in the submissions are irrelevant to the present action. I will therefore uphold the submission by learned counsel for the plaintiff that the defendant has not succeeded in establishing her claim to have the plaintiff’s case struck out on the grounds set out in her application which is hereby dismissed with costs of ¢45 to the plaintiff.

DECISION

Application dismissed with costs.

S.E.K.