BHARWANI v. MANSOUR AND SONS
October 21, 1963
HIGH COURT
GHANA
CORAM
- SOWAH J
Areas of Law
- Civil Procedure
- Commercial Law
October 21, 1963
HIGH COURT
GHANA
CORAM
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JUDGMENT OF SOWAH J.
This is an application for an order to strike out paragraphs 2 to 9 of the defendants' pleading and counter-claim on the grounds that they tend to prejudice, embarrass or delay a fair trial of the action.
Mr. Nii Odoi Annan, counsel for the defendants, raised a preliminary objection that the applicant ought to have brought this application soon after the defence was delivered, and before the pleadings closed, and that the delay in bringing this application was unreasonable, and therefore, the court should not entertain the application. In support of his contention, Mr. Nii Odoi Annan referred to the comments in the 1960 Annual Practice on this rule which state that such applications should be made promptly and before the close of the pleadings.
[p.351]
Dr. de Graft-Johnson was not able to give any reasonable explanation as to why he delayed in bringing this application except to state that the tactics adopted by the defence in filing a full statement of defence with the entry of appearance embarrassed the plaintiff. I am of the view that the proper time to bring such an application is before the close of the pleadings, or on a summons for directions, but I also consider that the words of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 Order 19, r. 29 are wide enough to allow an applicant to do so at any time. The court has the power, at any stage of the proceedings to order to be struck out any matter which may tend to prejudice, embarrass or delay a fair trial of the action. In the circumstances, I exercise my discretion in favour of the applicant. The objection, therefore, fails, and I intend to consider the application on its merits.
Dr. de Graft-Johnson dealt, in extenso, with whether in law the defendants' defence could be an answer to his claim and whether the counter-claim was maintainable against his client. Dr. de Graft-Johnson submitted that his client was a holder in due course of a bill of exchange and as such holder he was entitled to maintain an action against the acceptor of the bill. Counsel further submitted that the defence raised was only intended to delay the action since his client was not a party to the alleged transaction between the endorser of the bill and the defendants.
Mr. Nii Odoi Annan in answer submitted that the application was misconceived. He contended that Dr. de Graft-Johnson's argument might be summed up in this way, namely, that the defence put up was bad in law. If counsel for t
AI Generated Summary
Sowah J. considered an interlocutory application by a bill of exchange holder to strike out paragraphs 2–9 of the defendants’ defence and counterclaim, alleging prejudice, embarrassment, and delay. Defence counsel, Mr. Nii Odoi Annan, raised a preliminary objection that the application was belated, relying on the practice that such motions should be brought before pleadings close. The judge held Order 19, r. 29 of the Supreme [High] Court (Civil Procedure) Rules, 1954 allowed strike‑out at any stage and overruled the objection. On the merits, plaintiff’s counsel, Dr. de Graft‑Johnson, argued his client, as holder in due course, could sue the acceptor, and that the defence sought delay. The court affirmed that equities on overdue bills must attach to the bill itself; set‑off against an endorser is collateral and not an equity attaching to the bill, citing In re Overend, Gurney & Co.; Ex parte Swan. Nonetheless, strike‑out was refused: no prejudice/delay was shown, and the writ lacked essential averments (presentation, dishonour, notice). The application was dismissed with costs.