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JUDGMENT
AKOTO-BAMFOR, J.A.
In this appeal, the
appellant who was the defendant in the court below,
shall be referred to as the defendant whereas the
respondent who was plaintiff therein shall simply be
referred to as the plaintiff.
On the 13th of December
2002, the High Court entered judgment in favour of the
plaintiff against the defendant upon an application for
summary judgment under Order 14 of the High Court Civil
Rules as amended by L.I. 1129.
The Court granted all
the reliefs endorsed on the writ of summons and
statement of claim. It is against this decision that the
defendant lodged this appeal in this Court.
In order to appreciate
the issues raised, I deem it necessary to set out in
brief the events culminating in this appeal.
On the 17th of July
2002, the plaintiff took out a writ of summons claiming
against the defendant the sum of $5400 being money the
defendant collected from the plaintiffs on the grounds
of securing them a United States visa but which he
failed to do.
Interest on the said
amount from 1st December, 2001 to date of judgment. In
the accompanying statement of claim the plaintiff
averred that the defendant collected a total amount of
$5400 from him in order to secure for him a visa; that
when the defendant gave him the passport and he
attempted to travel with same, it was detected that the
visa was fake. He therefore asked for a refund of the
monies paid.
On the 23rd of
September, 2002 the defendant filed a defence; the gist
of which was that there was an agreement between him and
the plaintiffs under which he was to procure a passport,
an American visa, a ticket and other charges at a total
cost of $6000; the breakdown being $3000 for the visa,
$100 for the passport, $1500 for the ticket, hotel and
service charges amounting to $1400. In all he received
$3414 and ¢500,000. According to him he had refunded an
amount of $1,300 to the plaintiff and was therefore not
entitled to the sum stated on the face of the writ.
On the 13th of
November, 2002 the plaintiff filed an application for
summary judgment under order 14 of the High Court Rules
as amended by L.I. 1129 for the sum of $5400 together
with interest; an affidavit in opposition was filed
virtually restating the averments in the decision filed.
On the 13th of December
2002, the learned Judge gave his decision in these terms
“Upon hearing learned Counsel and reading the affidavit
in support of the motion and reading through the
affidavit in opposition the application is granted as
prayed. Costs of 2 Million Cedis awarded against the
defendant."
The defendant grounded
his attack against the decision on these 2 grounds: [a]
that the judgment cannot be supported by the plaintiff’s
claim with regard to the defence filed by the
defendants. [b] The defendant was not heard by the Court
before judgment was given.
Learned Counsel for the
defendant submitted that the learned judge fell into an
error when he entered judgment for the full amount even
though it was clear from the defence filed that the
defendant had refunded an amount of $800 dollars before
the said judgment.
He further argued that
since the defendant averred in both his defence and
affidavit in opposition that he did incur some
legitimate expenses which he was entitled to deduct and
of which averment there was no denial, triable issues
were raised and the defendant ought to have been given
leave to defend.
In the indorsement to
the writ, the plaintiff claimed the sum of $5,400
together with interest and asserted in the accompanying
writ of summons and statement of claim that they
represented monies paid to the defendant for the
purposes of securing him a visa to the United States of
America.
According to the
plaintiff the visa which the defendant subsequently
handed over to him was fake and hence the refund.
In the defence, the
defendant did not essentially deny having received the
sum stated in the indorsement but claimed it represented
part payment for various services, which he was to
render for the plaintiff. According to him he charged
the sum of $6000 for the services to be provided which
included a ticket, a passport, a visa and a hotel
accommodation and that since he performed all the
services with the exception of the visa which the
plaintiff alleged was fake, he was entitled to deduct
his legitimate expenses from the sum claimed. It was his
case that he had refunded an amount of $800 at the
relevant time and therefore amount appearing on the face
of the writ was not accurate.
The statement of
defence was filed on the 23rd of September, 2002. In the
said defence 2 issues were raised: [1] that the
defendant had refunded part of the money [2] that he had
pleaded the defence of a set off.
In paragraph 6 of the
defence the defendant averred that he had refunded $800
out the amount, significantly this averment was not
denied. It is trite learning that any allegation of
fact, which is not traversed, is deemed admitted. If
indeed the defendant had refunded part of the amount, it
is clear that judgment could not properly have been
entered for the amount stated on the face of the writ,
for it is settled that where judgment is entered for an
amount greater than what is actually due; it must be set
aside ex debito justiciae; Halsbury’ Laws of England 4th
edition Vol. 26 paragraph 559. This position was
restated in Morkor vrs. Kuma 1998-99 SC. GLR page 620
where it was held inter alia that this was apart from
any consideration of whether or not the defendant has a
good defence on the merits. More importantly the issue
which confronts me in this appeal, is whether the
learned Judge rightly exercised his discretion in
entering judgment for all the reliefs and thereby
refusing the defendant leave to defend.
Order 14 of the High
Court Civil Procedure Rules as amended provides the
procedure for obtaining summary judgment without
proceeding to a full trial. It is a means of
expeditiously disposing of cases, which are virtually
uncontested, and thereby avoiding a full trail with its
attendant delays.
Among the conditions
precedent for a plaintiff employing the summary process
are [1 the defendant must have entered appearance [2.
The statement of claim must have been served on the
defendant [3 and relevant for our purposes, the
affidavit in support must contain a statement of the
deponent’s belief that there is no defence to the claim
or part thereof in respect of which the application is
made.
The plaintiff must
therefore proceed under Order 14 only on grounds that
the defendant has no defence to the claim since
evidently the purpose is to enable a plaintiff obtain
summary judgment where he can prove his claim clearly
and if the defendant is unable to set up a bonafide
defence or raise on issue against the claim which ought
to be heard.
In the case under
consideration, the defendant did essentially admit part
of the claim; made a refund but however asserted that he
was entitled to deduct his legitimate expenses. That he
could not be said to have clearly admitted owing the
whole amount stated in the endorsement and therefore a
full trial was unnecessary is evident; nonetheless the
learned Judge entered judgment in favour of the
plaintiff for the full amount. I am of the view that the
learned Judge fell into an error for it is trite
learning that where part of a claim is clearly due by
admission or otherwise, while a defence is shown as to
the residue, the Court should enter judgment for the sum
due and give leave to defend as to the residue. Lazarus
vrs. Smith 1908 2KB 266.
Since the defendant
admitted and proceeded to make a refund with respect to
part of the claim and pleaded the defence of a set-off,
triable issues were raised and he ought to have been
given leave to defend with regard to the reside. Indeed
both the defence and the affidavit in opposition clearly
articulated what the defence was. The appeal accordingly
succeeds on this ground. With regard to the 22nd
ground-namely that the defendant was not heard, learned
Council submitted that judgment was given in the absence
of both the defendant and his counsel without hearing
notices being served on them.
A look at record of
proceedings shows that the summons for summary judgment
was filed on 13/11/2002 and fixed for hearing at
9.0’clock on 2nd December, 2002. It is evident from the
record that both the defendant and his counsel were
absent on the 2nd of December, 2002. The Court, it
appears did not make any order for hearing notices to be
served on them after having adjourned the hearing of the
application to the 9th of December 2002.
Somehow the defendant
must have gotten wind of the date, for he did surface in
court on the adjourned date. The entries made by the
learned Judge on the 9th of December 2002 attested to
this fact. There was nothing on record to show that the
defendant’s counsel was in court. The matter was again
adjourned to the 13th of December 2002. Both the
defendant and his counsel were however absent.
Even though the Court
failed to make an order for hearing notices to be served
on the defendant and his counsel on the 2nd of December,
the fact that the defendant was in court on the 9th
albeit without his counsel was indicative of the fact
that he had notice of the proceedings slated for the
9th. It could be argued that since the Court failed to
make an order that they be notified of the hearing date
the proceedings heard in their absence were a nullity.
As noted the defendant was in court and was therefore
aware of the adjourned date i.e. the 13th, it was
therefore incumbent upon him not only to be in court but
also to have duly informed his counsel of the hearing
date. When therefore the defendant chose to absent
himself from court despite the fact that he was aware of
the date, can be heard to complain that he was not given
a hearing? I think not.
If he had not been in
court on the 9th of December when the matter was
adjourned to the 13th, in the absence of an order for
service of notices on them they could have successfully
argued that they were not notified of the proceedings
and therefore not given a hearing. A party who has had
notice of impending proceedings but nonetheless chooses
to be elsewhere cannot be heard to complain that he was
not given a hearing. Since he absented himself from
court without any reason, the learned Judge’s decision
to proceed in his absence cannot be faulted and I so
find. The attack mounted against the judgment on this
score cannot therefore be sustained.
In the result would
allow the appeal in part.
The Judgment of the
High Court and the consequential orders are set aside.
In its place, the defendant is given leave to defend.
Suit to take its normal course in the court below.
(SGD)
V. AKOTO-BAMFO [MRS.]
JUSTICE OF APPEAL
I agree.
ARYEETEY, J.A.
B.T. ARYEETEY
JUSTICE OF APPEAL
I also agree.
ASARE KORANG, J.A.
A. ASARE KORANG
JUSTICE OF APPEAL.
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