Kwasi Tutu V. Kwame Dapaa (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—When pleadings may be ordered—Recording of reasonsfor order—Order 25, rule 1 and rule 2.
Jurisdiction—Deed of sale of land attacked as a forgery—Claim to ownership of land besides.

Facts

The above-cited rules read as follows:—
“1. Suits shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the Court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to do so, the Court may order the plaintiff to file a written statement of his claim (called’ the petition), an may likewise order the defendant to file a written answer or statement of his defence.

The filing of a petition shall not necessarily involve, unless the Court so directs, that an answer shall also be filed. The order may be made at any stage of a suit, either before or at the hearing.

“2. In making any such order, the Court shall have regard to the condition of the parties, and Shall not require any party to file a written statement who, from want of education, is incapable of preparing or understanding the same.

If in any case the Court considers it necessary, in the interests of justice, that any statement of such party should be reduced into writing previous to the hearing, the Court may direct that the same be taken down in writing by the Registrar or other fit officer of the Court, and after
verifying the statement so prepared by oral examination of the party where
necessary, may direct, if it thinks fit, that such statement be filed as a
pleading.”

In the Court below the plaintiff sued for a declaration of title and the cancellation of a sale by the deceased to the defendant as being fraudulent. The plaintiff appeared by Counsel and asked for an order of pleadings, saying the action was complicated but not explaining why; the defendant appeared in person. Pleadings were ordered, but no reason was recorded why they were.

Upon the defendant failing to file his defence as ordered, plaintiff moved for judgment; defendant appeared but gave no reason for his failure, nor did he ask for more time; judgment was given, and the defendant appealed on the
grounds:—
(a) that it was a claim to ownership of land, which the Supreme Court could not hear, and
(b) that the order for pleadings was a nullity in that Order 25, rules 1 and 2, were not complied with. It appeared that the defendant did not understand English, but of this he did not inform the trial Court.

Held

(1) The Writ and the Statement of Claim showed that the real matter
in issue was whether the deed of sale was a genuine document or a forgery; and the fact that the question of ownership followed upon the determination of that matter did not necessarily make the issue one of ownership.

(2) Pleadings are only to be ordered in the circumstances laid down in rule 1 of Order 25 and the reasons for such an order must be recorded. That rule was not complied with and the order for pleadings was therefore a nullity.

Appeal allowed: case remitted for re-trial.