NANA ADD DAKO II
May 15, 1936
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
- COR. PETRIDES WEBBER C.JJ. YATES J
Areas of Law
- Civil Procedure
- Constitutional Law
The following judgment was delivered :PETRIDES, c.J., GOLD COAST.
From the statement of claim it will be seen that the plaintiff state that the Legislative Council of the Colony passed Ordinance No.3 of 1935, which they allege, in paragraph eight, " is an ordinance passed ultra vires of the powers of the said Legislative Council an repugnant to the laws of England and is therefore of no effect" an ask for a declaration that that ordinance is' one which the Legislative Council could not lawfully pass and that all acts done or authorise to be done thereunder were and are illegal. They also claim a injunction to restrain defendants or their officers and servants from acting under the authority of that ordinance.
On an application made on behalf of the defendants, Strother-Stewart, J., ordered that :
(a) part of paragraph 3 and the whole of paragraphs 4, 5 and 6 of the statement of claim should be struck out as being evidence by which the allegations set out in the statement of claim are to be proved contrary to section 3 of Order 25 of the General Procedure Rules
(b) part of paragraph 7 should be struck out as being irrelevant, embarrassing and prejudicial;
(c) plaintiffs should amend their statement of claim so far as paragaph 8 thereof is concerned by specifying in what respect the ordinance complained of is ultra vires and repugnant to the laws of England.
From this order the plaintiffs have appealed to this Court. On the question of striking out or amending pleadings it is stated in a note to Order 19, Rule 27, in the English Annual Practice that the Court of Appeal will seldom interfere with the decision of the Judge at chambers on such an application, unless some question of principle is involved; or" where serious injustice would result from not interfering" (Golding v. Wharton 0- Co, (1876), 1 g.B.D. 374, and other cases cited).
Inasmuch as the basis of the cause of action in this case is that the passing of Ordinance No.3 of 1935 was ultra vires the powers of the Legislative Council of this colony and repugnant to the law of England and therefore of no effect, it is obvious that the learned Judge was quite right in making the order he did as to paragraph 8 of the statement of claim, which was in effect an order that the plaintiff should give particulars as to why the ordinance was repugnant to the law of England and why he alleges that the passing thereof was ultra vires the Legislative Council.
The real issue raised by the statement of cl