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JELR 86715 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]




A preliminary objection was raised that this appeal was not before us and having decided that in favour of the Appellant we proceeded to hear argument on the appeal itself.

The grounds are:-

“1. Because the Court having treated the writs of summons with the consent of the Respondents' counsel as specially indorsed writs and the Defendants having filed written statements of defence thereto, the learned Judge was wrong in law in entertaining a demurrer in the form of a technical objection raised by the Respondents, based upon the imperfection of the writs of summons.

2. Because the Respondents having filed statements of defence without raising the question of the identification of the plaintiff with the libel, the learned Judge was wrong in law in accepting arguments from the Respondents on the point and striking out the claims.

3. Because the Respondents having inferred and disclosed in their statements of defence the knowledge that the libel referred to the Plaintiff, the learned Judge was wrong in law in holding that the writs do not disclose of and concerning whom the libel has been made against and no certainty of the person defamed.

4. Because the order made striking out the writs with 60 guineas costs is bad in law and could not be enforced on account of its vagueness and uncertainty". The writ itself clearly discloses a sufficient cause of action and after an amendment the particulars had been held adequate by Manson, J., and there had been no appeal from the decision that a statement of defence should be filed on or before the 23rd March. It was filed and in it issue was joined. There was also an order by the same Judge for the claims in another case to be consolidated and there is a minute on the record “no statement of claim as particulars of claim are adequate” and a further order for the statement of defence in the consolidated suit to be filed before the 23rd of March. This was complied with. When the case came up for hearing before another Judge an objection was taken that as the writ did not say “of and concerning the plaintiff” there was no certainty and hence no cause of action. The learned trial Judge upheld that submission and the record reads:-

“I hold that the writs do not disclose any cause of action, the writs do not disclose of and concerning whom the .libel has been made against.

This I hold is a serious omission, in other words no certainty of the person defamed.

Writs struck out with costs at 60 guineas”.

This was clearly a misdirection as the particulars of claim say:-

“Meaning that the Plaintiff has committed the offence of judicial corruption and the Plaintiff has thereby suffered damages to his name, position and character”,

and as there was an innuendo the Court should not in the circum- stances have struck the case out but should have given leave to amend if it considered the pleading embarrassing.

The appeal is allowed; the order striking out the writs and the costs in the Court below are set aside: and the case is remitted for hearing with or without any amendment of pleading at the discretion of the Judge. In view of our decision we think it unnecessary to say anything as to the amount of costs awarded in the Court below.

The costs in this Court are assessed at thirty-five guineas.

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