SONIAG COMPANY LTD v. BOND FINANCIAL SAVINGS AND LOANS LTD
2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case concerned the plaintiff's application for leave to file a rejoinder to the plaintiffs reply and defense to the counterclaim, which the defendant opposed. The court noted that subsequent pleadings after a reply require leave of the court (Order 11, Rule 4), and considered the precedent that counterclaims are treated as independent actions per AMON v BOBBETT. The court granted the leave, recognizing that it would not harm the plaintiffs case or unduly delay the trial, and imposed a cost award of Gh400.00 in favor of the plaintiff.
RULING
By this application Plaintiff seeks for leave to file a rejoinder to the Plaintiff’s reply and defence to his counterclaim. In an affidavit in support of this application the deponent has noted that particulars that ought to have been particularized in the statement of claim was not done and was accordingly raised in the statement of defence by drawing the attention of the plaintiff to it. Subsequently in plaintiff’s reply to the statement of defence and a counter claim, plaintiff has supplied those particulars. And that with the supply of those particulars, it thinks that the nature of its defence ought to shift in answer to the particulars now provided.
Defendant has vehemently resisted the application for a number of reasons. One that the application is unwarranted by the rules of court and only a calculated attempt to enable plaintiff substitute a new defence to the statement of defence filed by him and that if particulars had not been provided, defendant could have asked for better and further particulars. And again that if plaintiff was of the opinion that it needed to file any further pleadings it was entitled to apply for leave to amend the statement of defence.
It is provided by Order 11 Rule Rule 4 that
“No pleading subsequent to a reply shall be filed except with leave of the Court”.
What it means is that a rejoinder or any further pleadings being in the nature of an amendment or otherwise may be available only with leave of court as the plaintiff/applicant is seeking.
I must state that in terms of the counter claim by defendant, with a defence filed by the plaintiff, the defendant is entitled as a matter of right to file a reply to the defence to the counter claim. For it has always been the law as noted as far back in the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:
“a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.
See also Dotse JSC in the case of JASS CO. LTD v APPAU [2009] SCGLR 269. And if the defendant intended to respond to any averment made in the defence to the counter claim, the defendant was the plaintiff and the plaintiff the defendant as far as the counter claim was concerned and need no leave to file any process.
I reckon that the present action of the defendant has become necessary due to what the defendant claims to be certain averments that have been made specifically in the reply for which he ne