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September 17, 2019
HIGH COURT
GHANA
CORAM
On 27th August, 2019, Counsel for the Defendant/Applicant (Applicant) moved this Court under Order 11 Rule 18 of the High Court (Civil Procedure) Rules 2004, C.I. 47 for an order striking out the Plaintiff/Respondent’s (Respondent) Writ of Summons, Statement of Claim and to dismiss the suit as frivolous, vexatious, may prejudice a fair trial or otherwise an abuse of the process of the Court. Even though Counsel for the Applicant did not specify the particulars sub-rules the application had been brought under, it appears from the body of the motion paper that Counsel has invoked the Court’s jurisdiction under sub-rules (b), (c) and (d) of Order 11 Rule 18 (1).
“It is provided under Order 11 Rule 18 of C.I. 47 as follows:
Striking out pleadings
18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that
(a) It discloses no reasonable cause of action or defence; 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.
(2) No evidence whatsoever shall be admissible on an application under sub-rule (1) (a).”
The grounds on which the Applicant relies are encapsulated in a 19-paragraphed affidavit in support of the application. Among other things, the Applicant deposed that the Respondent’s claim against him arises from a contract for the supply of souvenir cups to the Government of Ghana for the Ghana@50 celebration, which was jointly executed by the parties to this suit. The Applicant further deposed that this contract was also the subject matter of Suit No. OCC/36/15 titled Nii Tetteh Laryea (Plaintiff) Vrs. Skilled Force Limited (Defendant). According to the Applicant, the parties to the said suit filed Terms of Settlement which were adopted as Consent Judgment, the Respondent never demanded or counterclaimed for payment of any portion of the Legal fees by the Applicant, neither was the said payment a condition for the settlement of the suit.
For the Applicant, Counsel argued that the consent judgment settled all claims between the Applicant and Respondent in this suit, and that the Respondent engaged and paid for its legal fees without recourse to the Applicant, as evidenced by paragraphs 5, 6 and 7 of the Respondent’s affidavit in opposition.
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AI Generated Summary
In the High Court, Justice Mrs. Angelina Mensah-Homiah considered an interlocutory application by the Defendant/Applicant seeking to strike out the Plaintiff/Respondents writ and claim under Order 11 Rule 18 of C.I. 47. The controversy stems from the Ghana@50 souvenir cups supply contract jointly executed by the parties, and legal work conducted by Lex Consult & Co to recover funds. The Applicant argued that a consent judgment in Suit No. OCC/36/15 (involving Nii Tetteh Laryea and Skilled Force Limited, with the Attorney General and Ministry of Finance) rendered the present claim res judicata and that Lex Consult was not a party. The Respondent claimed an agreement that, upon receipt of GH2785,323.75, the Applicant would reimburse 50% of legal fees. The Court held the refund claim was a distinct cause of action and, in special circumstances, not barred by Henderson v. Henderson. Finding contested facts requiring evidence, the Court refused the strike-out, awarded costs, and directed the suit to proceed.