UNIBANK (GHANA) LIMITED vs ACI CONSTRUCTION & RESTORATION LTD & ORS

Before me is an application filed by the Defendants/Applicants (Defendants) praying for an Order striking out Paragraph 4 of the Plaintiff’s/Respondent’s (Plaintiff) pleadings and dismissing the Plaintiff’s action. At the hearing of the motion, counsel for Defendants however submitted that it was entire Pleadings of the Plaintiff that Defendants sought to have struck out and not just Paragraph 4 of the Statement of Claim. Defendants say the instant application is brought under Order 11 (18) (a) of the High Court (Civil Procedure) Rules, 2004 (CI 47).

In invoking this Court’s jurisdiction under the said rule, it is clear from the wording sub Rule (2) that no affidavit evidence is admissible. In other words, the Court is not permitted to go outside the pleadings to consider extrinsic evidence in determining an application premised on the said Rule.

Secondly, the Court must assume all the allegations contained in the Statement of Claim to be true and upon doing so must satisfy itself that the same discloses no reasonable cause of action against the Defendants before an application under Order 11(18) (a) of High Court Civil Procedure Rules, 2004, (CI 47) may succeed.

This well-received principle has been emphasized in several authorities notable among them being the case of GHANA MUSLIM REPRESENTATIVE COUNCIL& ORS v SALIFU 7 ORS [1975] 2GLR 246 and the more recent case of JONAH v KULNEDI [2013-2014] 1 SCGLR 285.

It is also important to note that this power vested in a Court is not mandatory but permissive and is exercised having regard to all the circumstances relating to the offending pleadings or the pleading sought to be struck out. See case of JONAH v KULENDI (supra).

In the case at hand, the Plaintiff’s case is that it advanced a loan facility in the sum of Eight Million, Three Hundred and Twenty-Two Thousand, One Hundred and Eighty Two Ghana Cedis (GH¢ 8,322,182.00.) to the Defendant.

This facility was to expire in June 2016. The said facility was secured by the Defendants in a number of ways including what would appear from paragraph 6 of the Statement of Claim to be a mortgage.

Plaintiff says the Defendants have defaulted in their repayment obligations for which reason Plaintiff is before this Court seeking the immediate repayment of the said sum together with interest.

Considering the order being sought by the present motion, my task here is to determine whether Plaintiff’s pleadings disclose a reasonable cause of action against the Defend