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GAISIE, ZWENNES HUGHES
& CO. FOR PLAINTIFF
SAMUEL AGYEMFRAH FOR
DEFENDANTS
ANIM J. A.
This is an appeal from
the ruling of Kanyoke J. (as he then was) delivered on
the 17th February 2003 at the High Court, Sekondi, in
respect of the Motion to correct the figures stated in
an Entry of Judgment filed by the Plaintiff after the
High Court had entered judgment on his behalf. The
Plaintiff was an employee of the Defendants from 1977 to
1990.
The Plaintiff was not
paid his salary of $1000 per month during most of the
period. Sometime in May 1996 the Defendants agreed to
pay to the Plaintiff the sum of $20,000 to cover part of
his entitlements. Since 1996 the Defendants paid only
$5000.
On the 26th day of July
2000 the Plaintiff took out a Writ of Summons claiming
against the Defendants jointly and severally the
following reliefs:—
(a) The sum of US
$15,000 payable in cedis at the Forex Bureau Rate being
balance of the Plaintiff's entitlement of US $20,000.
(b) Prevailing Bank
interest on the cedis equivalent of $15,000 from May
1996 to date of full payment and also interest on the
sum of US $20,000 from 26th May 1996 to 25th September
1997.
(c) Substantial
damages for breach of contract of employment, mental
torture and suffering.
(d) Arrears of
salaries unpaid by the defendants.
Subsequently, on 23rd
January 2001, a consent judgment was entered in favour
of the Plaintiff for reliefs 1 & 2 in the Writ of
Summons. Costs of (¢10 million) Ten Million Cedis was
also awarded the Plaintiff against the Defendants by His
Lordship Senyo Dzamefe, J.
The
Defendant/Judgment/Debtors failed to pay the judgment
debt and costs as per the consent judgment entered
against them. On 29th June 2001, however, they filed a
motion on notice through their Solicitor praying the
High Court for an order setting aside the judgment given
per the consent judgment either wholly or in part and
for such further order or orders as the court deemed
fit. The motion was moved on 21st August 2001 and on
11th September 2001, the motion was dismissed. The court
notes read:—
"COURT:—
Exhibit. "A" the
agreement between the Plaintiff and Defendants dated
25/5/96 said in paragraph 2 that the sum of US $20,000
be paid within a period of 6 months but not exceeding 9
months. Counsel for the applicants is saying the
interest is in excess of 9 months and therefore the
whole judgment be set aside.
By my understanding of
the C.A. decision in AUK PHARMACEU- TICAL vs. S.S.
(1992) 1 GRL 562 I will not grant the application to
have the judgment set aside but can agree that a
re-calculation be made and reduce the total by 9 months
grace period."
On 14th January 2003, a
new Lawyer engaged by the Defendants filed a motion on
notice for on behalf of the Defendant/Judgment/Debtors
praying an order correcting the amount stated in the
Entry of Judgment. The affidavit in Support of the
motion deposed, inter alia, as follows:—
"3. That on 23rd of
January 2001 this Honourable Court entered judgment for
the Plaintiff for the sum of US $15,000 together with
interest at the prevailing bank rate from 26th May 1996
to 23rd of January 2001, and interest on the sum of
$20,000 from 26th May 1996 to 25th September 1997.
4. That the Plaintiff
filed Entry of Judgment a copy of which is annexed
hereto and marked "A".
5. That by the Entry of
Judgment the interest payable is ¢420,946.666
6. That the Calculation
of interest therein is wrong.
7. That the interest
can only be at the Federal Bank of USA of dollars or in
cedis at the yearly Bank of Ghana rate each year.
8. That in either case
we have fully paid the principal sum and the interest
which is legally payable by the judgment.
9. That the Plaintiff
is still seeking to execute judgment for the wrong
calculated interest.
10. That I pray that
the interest calculated by the Plaintiff is rectified to
reflect the legal position.
In the affidavit in
opposition filed the Plaintiff/Creditor deposed as
follows:—
3. The application
lacks merit and has also been brought in bad faith.
4. The applicants
raised the maters contained in this application before
the Court without any success.
5. Therefore the
applicants entered into an agreement with me to pay the
outstanding debt by monthly instalments which they
failed.
6. I attach a
comprehensive statement of Account for the scrutiny of
the Court marked Exhibit "A" "A".
7. When the Fi:fa was
again executed for the sum of ¢240 million on 10th
October 2002 and auction sale ordered to applicants paid
through the Court the sum of ¢15 million and promised to
pay monthly sums of ¢15 million.
8. The applicants again
failed to pay the agreed instalments.
9. When execution of
Fi:fa was again resumed and the properties of the
applicants were to be sold on 20th January 2003 the
applicants and Peter Murphy and another approached me
and the Chief Bailiff on 10th January for further
negotiation.
10. When I refused to
agree to any further instalments the applicants filed
the instant application.
11. The balance
outstanding is ¢225 million and should also attract
thereon from 23rd January 2001 as ordered by the Court.
12. Paragraphs 5, 6, 7,
8, 9 and 10 of the affidavit are untrue and untenable in
any case."
The learned trial
judge, after hearing the submissions of both counsel
granted the application and held thus:—
"In effect the
Defendants/Applicants have as at 30/1/2003 completely
paid off or liquidated the whole judgment debt, interest
and costs. I find and hold therefore that the
Defendants/Applicants are no more indebted to the
Plaintiff/Respondents by way of any judgment debt,
interest and costs. I accordingly find and hold as
totally unjustified and without any legal foundation the
Plaintiff/Respondents deposition in paragraph 11 of the
affidavit that the balance outstanding is ¢225 million
and should also attract interest thereon from 25th
January 2001 as ordered by the court. In conclusion the
application succeeds with costs of ¢1,000,000.00 (one
million cedis) to the Defendants/Applicants"
The learned trial judge
stated that since he had already shown in the ruling
that the total interest on reliefs 1 & 2 of the
endorsement to the Writ of Summons should have been
¢60,125,000.00 and not ¢48,362,091, then therefore if
the Defendants/Applicants have paid the interest of
48.362.091 and this has not been denied there is still a
balance of ¢11,762,092.00 to be paid. He said he had
found in the case docket or jacket a "Notice of payment"
into court an amount of fifteen million (¢15 million)
made by the Defendants/Applicants as being balance due
to the Plaintiff on the judgment debt. That this "Notice
of Payment" was filed on 30th day of January 2003.
This was at a time the
application was pending and it was copied to the
Plaintiff/Respondent or his Solicitor.
It was against this
Order of the High Court, presided over by Kanyote J. as
he then was) dated 14th February 2003 that the Plaintiff
has appealed to this Court.
In the Notice of Appeal
filed on 18th February 2003 three main grounds of Appeal
were formulated as follows:—
(a) The Learned Trial
Judge had no jurisdiction to entertain the application
and make the orders.
(b) The Learned judge
was wrong when he made the orders
(c) The ruling of the
Learned Trial Judge was perverse as it was unsupported
by affidavit evidence.
Learned Counsel for the
Plaintiff prayed the court to argue all the three
grounds of appeal together. The prayer was acceded to.
In arguing these
grounds together, Learned Counsel submitted that even
though the Learned Trial Judge had referred to several
authorities including HALTON vrs. HARRIS (1892) AC 547
and MENSAH & ORS. vrs. ADU & ORS. (1972) GLR 218 and
Order 28 rule 11 to come to a conclusion that the
application was proper and that the correction could be
done at the High Court and not an Appeal and further
that the Court had power to correct particulars
contained in the Entry of Judgment if the Court found it
to be wrong, there were no clerical mistakes in
judgments, orders or errors arising therein from any
accidental slip or omissions. According to counsel no
such particulars were provided by the judge.
Learned Counsel further
submitted that in any case between the date of the
consent judgment entered on 23rd January 2001 and the
application filed on 14th January 2003, the Defendants
had made payments on the Entry of judgment and it was
inexpedient and indeed inequitable to make any such
corrections even if there were corrections to be made.
Counsel further
contended that if the Defendants were dissatisfied with
the Ruling of the Court on 23/1/01 and 11/09/01 they
should have appealed. Not having appealed against the
Ruling the Defendants are precluded from repeating the
application on 14/1/03. Counsel therefore submitted that
the High Court, Sekondi presided over by Dzamefe, J.
having made definite determination of the matter it
precluded the same court from opening the matter again
before the High Court.
Counsel finally
submitted that if the learned trial judge had examined
the affidavit he would not have arrived at the decision
that he reached. Responding, Learned Counsel for the
Defendant submitted that the submission of Learned
Counsel for the Plaintiff that the High Court had no
jurisdiction to entertain an application for correction
was misplaced. Counsel posed the question: Is the
Plaintiff saying that where one seeks reliefs "A" on an
endorsement to one's Writ of Summons and judgment is
given for "A", but when one is filing one's Entry of
Judgment one adds "A", "B", "C", the losing party cannot
seek to correct the figures stated in the entry of
judgment?
Counsel argued that
even though the Plaintiff keeps hammering on the point
that the judgment was a consent judgment and therefore
the defendant could not raise any questions, the
Defendants, in seeking to correct the figures in the
entry of judgment are not raising any questions on the
judgment. They are raising questions on the figures
prepared by the Plaintiff. Learned Counsel finally
submitted that the Defendants are saying that the
figures in the Entry of judgment are not a true
reflection of the judgment entered for the Plaintiff and
this exercise is within the jurisdiction of the High
Court.
In all this, the real
question is: what are the rules encircling consent
judgments. And have they been complied with on the
particular facts before me.
The rule is that a
Court has no power to vary a consent judgment or order
made previously in that same court and therefore the
only course open to a party to set aside a consent
judgment or order on the grounds of fraud or mistake is
to bring a fresh action. (See the case of de LASALA vrs.
de LASALA (1980) A C 546; (1979) 2 ALL ER 1146) OWUSU
vrs. KUMAH (1984 -86) 2 ALL ER 29.
The High Court,
however, has an inherent jurisdiction to correct its own
slips, clerical errors and accidental mistakes. But when
it concludes a case and delivers judgment it becomes
functus officio. If it is asked to take a second look at
its own judgment, and if possible, to vary a consent
judgment on the ground of fraud or mistake it can only
do so by means of a fresh action.
In the leading case of
ORUKUMKPOR & ORS. vrs. ITEBU & ORS. (1955) 15 WACA 39
which was an application made by way of motion for an
order amending an Order made by the Court in Civil
Appeal No. 130 of 1954, it was held, dismissing the
motion:—
"The court has an
inherent jurisdiction to vary its order so as to carry
out its own meaning, or in cases where the language used
is doubtful, but this does not apply where the amendment
sought is to vary the terms of a settlement reached by
the parties which would necessitate the taking of
evidence to determine the intention of the parties."
The test therefore is
whether or not the applicant is praying the inherent
jurisdiction of a Superior Court to vary its order so as
to carry out its own meaning, or on the hand whether the
applicant is praying the Court to vary the terms of a
settlement reached by the parties which would
necessitate the taking of evidence to determine the
intention of the parties.
If it is the former,
the Court has an inherent jurisdiction. If it is the
latter the answer lies in a fresh action.
Besides the inherent
jurisdiction of a Superior Court of Judicature to
correct factual errors in its Orders, Judgments or
Rulings, Order 28 rule 11, of the High Court (Civil
Procedure) Rules 1954 (L.N.140A) also gives the Court
such jurisdiction. Order 28 rule 11 provides: —
11. "Clerical mistakes
in judgments of orders or errors arising therein from
any accidental slip, or omissions may at any time be
corrected by the court or Judge on motion or Summons
without an Appeal."
Clearly, the import of
order 28 rule 11 is to express the manifest intention of
the Court and as the rule states the process by which
such mistakes or errors may be corrected by the Court or
judge is by motion or Summons and not by an Appeal.
What is "Entry of
Judgment"? The first step in enforcement or execution of
judgment is for the successful party to enter judgment
or file notice after trial: OTU vrs. SOKODE (1969)CC 66;
NORA STORES vrs. UNION INDUSTRIES (Ghana) Ltd. 1969 C.C.
123. Again entry of judgment or Order at or after trial
is normally to be made by the judge or other judicial
officer. Thus Order 36 rule 24 of the High Court (Civil
Procedure) Rules 1954 (L.N.140A) provides:—
24. " The judge or
other judicial officer shall at or after trial direct
judgment to be entered as he shall think right, and no
motion for judgment shall be necessary in order to
obtain such judgment."
As to amendment of
clerical or accidental mistakes, it is provided in
Halsbury's Laws of England, 4th edition Volume 26,
paragraphs 557, as follows:—
"After the judgment or
order has been entered there is power both under rules
of court and inherent in the judge or master who gave or
made the judgment or order, to correct any clerical
mistake in it or some error arising in it from
accidental slips or omission, or to vary the judgment or
order so as to give effect to his meaning and intention.
The power applies in the case of mistakes or accidental
slips made by officers of the court, or by the parties,
such as where judgment is entered in default of
appearance for too large an amount on costs, or there
has been a miscalculation of interest: BARKER vrs.
PURVIS (1888) 56 LT. 131 C.A ......... The application
should be made to the judge or master who made the
order, by motion in the case of a judgment or order of a
judge in Court or of the Court of Appeal and by Summons
in the case of an, Order made in Chambers. Any party may
apply. It should be made as soon as the mistake is
discovered, but it may be made at any time; and it is no
objection that the time for appealing against the
judgment, or order has expired. When the parties consent
and the officer responsible for entering the order is
satisfied as to the error, he will make the necessary
correction in the original order, but otherwise the
alteration should be effected by a separate supplemental
order."
In the instant case on
the 26th day of July 2000 the Plaintiff took out a Writ
of Summons claiming against the Defendants jointly and
severally (4) four main reliefs. Subsequently, by
agreement of the parties, the High Court, presided over
by His Lordship Senyo Dzamefe, entered a consent
judgment in favour of the Plaintiff for reliefs 1 & 2
only, in the Statement of Claim.
However, the entry of
judgment filed in this Court by the Plaintiff and
exhibited with the Defendants' supporting affidavit as
exhibit "A" was as follows:—
"ENTRY OF JUDGMENT
DATED AND ENTERED THIS
TUESDAY THE 23RD
DAY OF JANUARY 2001."
This action having come
on for the hearing of a motion for judgment before His
Lordship Dzamefe J, sitting at the High Court of
Justice, Sekondi and the said judge having entered
judgment for the Plaintiff for the sum of $15,000
together with interest at the prevailing bank rate from
26/5/96 to date of payment and also interest on the sum
of $20,000 from 26/5/96 to 25/9/97 until the date of
final payment with costs assessed at ¢10 million. It is
this day adjudged that the Plaintiff do recover from the
Defendants the sum of ¢420,946,666.00 being judgment
debt and costs with interest calculated up to 23/01/01.
Interest still continues till date of final payment."
A critical and
dispassionate examination of the two documents i.e.
reliefs 1 & 2 of the Writ of Summons and the Entry of
Judgment disclosed that there were obvious disparities
in them in the sense that the Entry of Judgment did not
give effect to the meaning and intention of the court.
It was this state of affairs which prompted the
Defendants to file a motion on notice for an order
correcting the amount stated in the Entry of Judgment on
14th January 2003.
The question is: Was
the Motion as filed before His Lordship Kanyoke J. (as
he then was) inviting the court to take a second look at
the consent judgment dated 23/1/2001 and if, possible,
to vary it on grounds of fraud or mistake? In which case
the applicant could only do so by means of a fresh
action? Certainly not. On the evidence the applicant was
not attacking the terms of the consent judgment and
crying for a variation on grounds of mistake or fraud.
The applicant was invoking the inherent and statutory
jurisdiction of the Court to correct errors or mistakes
in the Entry of Judgment so as to carry out the Court's
own meaning of the consent judgment. And furthermore so
that position under the judgment shall be clear and free
from ambiguity.
In those circumstances
the court had jurisdiction to entertain the Motion and
the correction could be done at the High Court and not
on Appeal. I am satisfied that the High Court had power
to amend the Entry of Judgment in the way sought in this
case.
It is for these reasons
that I find no merit in the appeal and do affirm the
ruling of the High Court, Sekondi dated 17th February
2003. The appeal is accordingly dismissed.
(SGD)
ANIM, J.A.
OMARI SASU, J.A.
I agree.
KUSI-APPOUH (MRS), J.
I also agree. |
