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Nana Adu Dako II & Ors V. The District Commissioner & Anor (1936) LJR-WACA

Nana Adu Dako II & Ors V. The District Commissioner & Anor (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Striking out and amending pleadings—Order 26, Rule 1, of General Procedure Rules—Elimination of statements tending to prejudice, embarrass or delay fair trial.

Held : Matter struck out irrelevant, and appeal dismissed.

A. W. Kojo Thompson (with him W. E. G. Sekyi) for Appellants. A. J. Ainley for Crown.

The following judgment was delivered :-

PETRIDES, C. J., GOLD COAST.

From the statement of claim it will be seen that the plaintiffs state that the Legislative Council of the Colony passed Ordinance No. 3 of 1935, which they allege, in paragraph eight, ” is an ordinance passed ultra vires of the powers of the said Legislative Council and repugnant to the laws of England and is therefore of no effect ” and ask for a declaration that that ordinance is one which the Legislative Council could not lawfully pass and that all acts done or authorised to be done thereunder were and are illegal. They also claim an injunction to restrain defendants or their officers and servants from acting under the authority of that ordinance.

On an application made on behalf of the defendants, Strother- Nana Adu

Dako ii

Stewart, J., ordered that :—& Ors.

  1. part of paragraph 3 and the whole of paragraphs 4, 5 and 6 TheThistrict of the statement of claim should be struck out as being commissionr. evidence by which the allegations set out in the state- & Ano. ment of claim are to be proved contrary to section 3  of Order 25 of the General Procedure Rules ;C.J.
  2. part of paragraph 7 should be struck out as being irrelevant, embarrassing and prejudicial ;
  3. plaintiffs should amend their statement of claim so far as paragaph 8 thereof is concerned by specifying in what respect the ordinance complained of is ultra vires and repugnant to the laws of England.
See also  Samuel O. Nelson V. S. Ammah & Anor (1940) LJR-WACA

From this order the plaintiffs have appealed to this Court.

On the question of striking out or amending pleadings it is stated in a note to Order 19, Rule 27, in the English Annual Practice that the Court of Appeal will seldom interfere with the decision of the Judge at chambers on such an application, unless some question of principle is involved ; or ” where serious injustice would result from not interfering ” (Golding v. Wharton & Co. (1876), 1 Q.B.D. 374, and other cases cited).

Inasmuch as the basis of the cause of action in this case is that the passing of Ordinance No. 3 of 1935 was ultra vires the powers of the Legislative Council of this colony and repugnant to the law of England and therefore of no effect, it is obvious that the learned Judge was quite right in making the order he did as to paragraph 8 of the statement of claim, which was in effect an order that the plaintiff should give particulars as to why the ordinance was repugnant to the law of England and why he alleges that the passing thereof was ultra vires the Legislative Council.

The real issue raised by the statement of claim is whether the passing of Ordinance No. 3 of 1935 was within the power of the Legislative Council of this colony. It is quite clear from the decisions referred to in Proposition 189 of the Doctrine of Ultra Vires, by J. A. Street, that, in deciding that question, the Court can only consider the validity of the action of the Legislative Council and not whether the ordinance is necessary for the peace, order, and good government of the colony.

In another note to Order 19, Rule 27, of the Annual Practice it is stated : ” It is no part of defendant’s duty to perform the plaintiff’s pleading ; but if wholly immaterial matter be set out in such a way that the applicant must plead it, and so raise irrelevant issues which may involve expense, trouble and delay, then the irrelevant matter will be struck out, as it will prejudice the fair trial of the action. (See Rassam v. Budge (1893), Q.B. 571 ; Liardet v. Hammond Electric Light Co., 31 W.R. 710 ; and Madge v. Penge U. D.C., 85 L. J. Ch. 814 (C.A.), 32 Times Rep. 354, 417 ; but see

See also  Rex V. Ani Nwokarafor & Ors (1944) LJR-WACA

London, Mayor, etc., of v. Horner (1914), 111 L.T. 512 (C.A.) ). So a mass of evidence pleaded unnecessarily may be struck out (Davy v. Garret, 7 D.C. 473).”

By Order 26, Rule 1, of the General Procedure Rules, wide powers are given to the Court to amend pleadings for the purpose of elimit nating all statements which may tend to prejudice, embarrass, or delay the fair trial of a suit and for the purpose of determining in the existing suit the real questions in controversy between the parties.

As we regard all the matter struck out as irrelevant to the real question in controversy between the parties we are not prepared to set aside or vary the Judge’s order.


The appeal is dismissed with costs assessed at E25 15s. WEBBER, C. J., SIERRA LEONE.

I concur. YATES, J.

I concur.

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