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July 25, 1972
HIGH COURT
GHANA
CORAM
JUDGMENT OF MENSA BOISON J.
This is an application on behalf of the defendants to set aside a summary judgment obtained against them in default under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). By a specially endorsed writ filed on 7 March 1969 [p.397] the plaintiff claimed against the defendants a total of ¢77,763.38 being tax and penalty for the years 1965-66, 1966-67, 1967-68 and tax only for 1968-69. On 16 November 1970 the defendants successfully resisted a motion for summary judgment under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and were accordingly granted leave to defend the action. No defence was, however, filed by the defendants when on 18 February 1971 the plaintiff gave notice to discontinue the action “with liberty to bring a fresh action.”
A fresh action was in fact filed 18 February 1971 this time claiming by the specially endorsed writ the income tax and penalty for 1969-70 and 1970-71 and employees' tax deductions from June 1966 to September 1970, in addition. The total claim now was ¢102,622.70. Appearance was entered on behalf of the defendants but no defence was filed and judgment was entered on 11 October 1971 under Order 14, r. 1 in default.
The present application is to have that judgment set aside. The ground taken is that the plaintiff having given notice to discontinue the former action without leave could not institute the fresh action without leave. The law as regards a plaintiff’s right to discontinue an action is provided under Order 26, r. 1; and as far as relevant to the facts of the discontinuance in this case it is as follows:
"The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint . . . and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a Judge . . .”
I think the meaning is plain and it does not require any gloss to interpret the rule. When on 18 February 1971 the plaintiff discontinued his former action no defence had been f
AI Generated Summary
In this High Court decision by Mensa Boison J., the Commissioner of Income Tax obtained default summary judgment against defendants for unpaid taxes and penalties after filing a fresh, specially endorsed writ that added liabilities for 1969–70 and 1970–71 and employees’ tax deductions from June 1966 to September 1970. The defendants sought to set aside the judgment, arguing that after discontinuing a prior suit the plaintiff could not bring a fresh action without leave, and that paragraph 64(2) of the Income Tax Decree, 1966 required production of an extract to prove the amount due. Interpreting Order 26, r. 1, the court held that discontinuance without leave was valid because no defence had been filed, permitting a subsequent action. The court further found paragraph 64(2) to be merely evidentiary, not mandatory, and that the specially endorsed writ contained sufficient particulars. Disputes over tax liability must be pursued via statutory objections and appeals. The application was refused with costs.