ECOBANK GHANA LTD v. GOLDEN WEB LIMITED & 3 ORS

RULING

During the case management conference on 22nd June, 2018 before Her Ladyship Mrs. Justice Angelina Mensah-Homiah, an objection was raised by counsel for the plaintiff with regard to the propriety of a process filed for and on behalf of the 1st Defendant namely: “1ST DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM”. The said process was filed on 21st March, 2018. The basis of the objection was that the process was unknown to the rules of court and accepted practice. Consequently, that process is said to be void in law and the plaintiff is inviting the court to strike it out.

Legal Submissions

Counsel for the plaintiff submits that the only process that a defendant may file after a plaintiff has filed a Reply and Defence to Counterclaim is a “Rejoinder” and that must be filed with leave of the Court. He contends that the document filed by the 1st Defendant subsequent to the reply is not a Rejoinder. The document was also filed without the leave of the Court and these make that document void.Counsel cited the case of IDDRISU v AMARTEY [2009] SCGLR 670 and argued that filing a document not warranted by the rules of civil procedure and practice makes that document void ab initio and not even Order 81 of CI 47 can cure it.

Counsel for the defendant submits that Order 11 applies to counterclaim in the same way as it applies to the plaintiff’s claim. In this regard, the counterclaimant, who is an original Defendant is considered as the plaintiff to the counterclaim; and the plaintiff in the substantive action is considered as the defendant to the counterclaim.In the result, counsel submits that the counterclaim should be treated as a statement of claim and the defence to the counterclaim should be treated as a statement of defence. That, per the general rules of pleadings, the defendant is entitled to file a reply in response to the defence to the counterclaim, as it is essentially a statement of defence. Counsel submits that IDDRISU v AMARTEY (supra) is not applicable to the circumstances of this case.

The Issue

The main issue here is whether the process filed on the 21st March 2018, termed “1st DEFENDANT’S REPLY TO DEFENCE TO COUNTERCLAIM” is warranted by the prevailing rules of civil procedure?

The Law

Order 82 rule 3 of CI 47 defines pleadings as:

“the formal allegations by the parties to a lawsuit of their respective claims and defences with the intended purpose of providing notice of what is to be expected at the trial.”

In Poku v Frimpong [