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JUDGMENT
Read the judgment of
the court at the invitation of Baddoo JA.
GBADEGBE, JA.:
On the 7th of November
1997, the Respondent herein caused a writ of civil
summons to issue against the defendants claiming the
refund of the sum of DM. 102,589.92 from the defendant
together with interest thereon. The said writ was
accompanied by a statement of claim, and the defendant’s
upon service on them entered an appearance on 9/12/97
with their defense to the action being entered on
9/1/98. On the 16/2/98, the plaintiff applied by way of
a notice of motion under order 14 of the High Court
rules as amended by [LI 1129] for summary judgment, the
said process, however, was withdrawn by a notice filed
in the registry on 27/2/98.
Subsequently on
27/2/98, the plaintiff filed a fresh application under
Order 14 of the rules of the High Court. It would
appear that this new application and the notice of
withdrawal of the one prior in point of time were filed
at the same time. It is not quite clear from the record
why the previous application was withdrawn, but it is
apparent that the new application in terms of the
supporting affidavit contained substantially the same
matters of fact. By the new application the respondent
herein claiming to be entitled to summary judgment
deposed among others as follows:—
(4) The plaintiff has
issued a writ of summons against the defendant herein
claiming the following reliefs:
(1) a refund of the
sum of DM. 102,589.92 paid to the defendant for the
supply of plant and machinery.
(ii) interest on the
said amount at the current lending rate in the
commercial bank until final payment.
(iii) Cost.
(5) The defendant has
entered an appearance to this writ.
(6) The defendant who
is a director of the company has also filed a defense in
which he admits receiving the amount claimed against me.
(7) Based upon his own
admission the allegation that by the defendant that the
plaintiff’s Managing Director collected the said amount
is baseless and without proof.
(8) At the hearing of
this summons, counsel for the Plaintiff Company will
seek leave of this Honourable court to refer to the
pleadings.
(9) The supply
contract, the subject matter of this suit was a subject
of audit conducted by a firm of auditors, Deloite and
Touch at the request of plaintiff’s company’s Board of
Directors of which the defendant was a member at the
time of the supply contract and still is a director of
the plaintiff company.
(10) I am advised by
counsel and verily believe same to be true that the
defendant being a director of the company should have
conducted his business with the company in utmost good
faith, honesty and sincerity and cannot therefore be
heard to say that he gave the money paid to him under
the supply contract to the Managing Director of the
plaintiff company.
(11) That to the best
of my knowledge the defense filed by the defendant is a
shame.”
In answer to the said
deposition the defendant deposed as follows:—
(see paragraph 2 – 5 of
the affidavit of Mohammed Wooley)
“2. That I have read
the applicant’s summons and affidavit in support
attached thereto.
3. That the facts
deposed to in the said affidavit have no bearing on the
instant suit having regard to the pleadings in the
matter.
4. Consequently, I am
advised by counsel and verily believe the same to be
true that the application is incompetent.”
It is worthy to note
that subsequently, the two parties filed further
affidavits in the matter — see the defendant’s
affidavit of 31/3/98, the plaintiffs supplementary
affidavit of 30/4/98; and a “second supplementary
affidavit in support of 17/7/98. Also worthy of note is
that the parties had in the course of the pendency of
the application under order 14 amended their various
pleadings and indeed before the summons was taken the
defendant had filed a reply dated 22/6/98 the
consequence of which I would later refer to with the
hearing of the application, however, taking place on
29/7/98 and judgment being given on 3/12/98.
I wish before
proceeding to consider the appeal herein on the merits
to say that it would appear that the control which was
required to be exercised of the proceedings by the trial
court was absent which explains why so simple an
application which was filed on 27/2/98 took such a long
time to be heard. In this wise, I wish to observe that
in applications of that nature which by its name is
summary, once the defendant is served with the
application and it answers the same within the
intendment of the rules by means of “affidavit or
otherwise”, the plaintiff may having regard to the
provisions of order 14 rule 3(1) requiring of the
defendant to show cause against the application file an
affidavit in reply which in its purport must be limited
only to issues, raised in the affidavit of the
Respondent. See (1) DAVIS V. SPENCE (1876) I.C.P.D.
719; 25 WR 229. Beyond these, I venture to say that the
parties cannot as of right proceed to file what in the
instant case was described variously as further
affidavit, supplementary affidavit and second
supplementary affidavit. I think that it is important
to observe that order 14 by its provisions is strictly
intended to be complied with and our courts should
exercise their superintendence over applications brought
thereunder in ensuring that they apply only to those
situations envisaged under the rule and used most
carefully and only in very clear cases. See (1) Ray v.
Barker (1879) 4 EX.D 279. Again in my view, although a
defense which is on the file may be one of the methods
by which the defendant may show cause against the
application, where as in this case, the plaintiff filed
his application several weeks after the defendant has,
as of right entered its defense to the action, the
better practice would require of the plaintiff to
explain the delay in mounting the application which by
the rules providing that it may be done after the
defendant has “entered an appearance” may be said to be
one which should be done promptly and if possible before
the defense is filed. I think that a relaxation of the
rule by the Courts to cover situations where a defense
has been filed is intended only to cater for situations
where a defendant who obviously is aware that he has no
defense to the action tries to circumvent the bringing
of an application under the rule by filing what is
generally referred to as a “sham defense” see (1) Jacobs
v. Booth’s Distillery Co. (1901) 85 LT 262.
On this note, I wish to
refer to the case of Mclardy v. Slateum (1890) 2 QB 504
where in the words of Pollock B he observed as follows:—
“We took time to
consider our judgment principally because we were
desirous of ascertaining what was the practice followed
by other judges, and by the masters, in consequence of
being informed by counsel that Field J., had long ago
decided, in an unreported case that the application must
be refused if made after delivery of a statement of
defense. We have made these inquires, and learn that
the view of Field J still is that the intention of Order
XIV, was that the plaintiff must make his application
before the delivery of a statement of defense; but that
in peculiar circumstances it may be made after, as where
the defendant has delivered his defense before the
expiration of the usual time for the purpose of
defeating such an application. The view taken by the
other judges and masters, is that the intention of Order
XIV rule 1; was that the plaintiff should apply within a
reasonable time after the appearance of the defendant,
but that it very often happens that a defense which has
been delivered, itself discloses facts which make an
application under Order XIV right and proper. We think
that this is the proper construction of the rule.
Although the primary
intention of the rules may be that an application should
be made before a defense has been delivered in the
ordinary course, yet we think that it is not in all
cases compulsory. Therefore, our judgment upon this
point of law and practice is that a plaintiff is not
necessarily too late in making his application under
Order XIV, rule 1 because a defense has been delivered…
… If a plaintiff makes
an application after the delivery, the onus is on him to
show that the delay is justifiable under the special
circumstances of the case”. I have taken pains to quote
to some extent the observation of Pollock B on this
aspect of the matter because it appears that we have of
late tended to be too relaxed in our role in ensuring
that the intention of Order XIV is actually carried out
by practitioners as well as their clients. In fact such
was the attitude of the courts that in one reported case
where the plaintiff was unable to explain away his
unreasonable delay the application was refused. cf.
RAYMOND v. MANDERS (1913) Supreme Court Practice.
I wish to say that
speaking for myself, I think that the above position
makes sense having regard to the fact that when an
application is made ordinarily under Order XIV, the
court is required under rule 5(1) to do any of the
following:
(a) “give such
judgment for the plaintiff against the defendant on the
relevant claim or part of a claim as may be just having
regard to the nature of remedy or relief sought unless
the defendant satisfies the court with respect to that
claim or part, that there is an issue or question in
dispute which ought to be tried or that there ought for
some other reason to be a trial of that claim or part;
or
(b) give the defendant
leave to defend the action with regard to the relevant
claim or part of a claiming either unconditionally or on
terms as to giving security or time or mode of trial or
otherwise; or
(c) dismiss the
application with costs to be paid forthwith by the
plaintiff, if it appears that the case is not within
this order or that the plaintiff knew that the defendant
relied on a contention which would entitle him to
unconditional leave to defend the action.”
It would appear from a
close reading of the powers available to the court on
the hearing of an application under the order that it
does not envisage that this should be made when a
defense has prior to the bringing of the application
been filed as of right by the defendant within the rules
of the trial court. Further there is not doubt that
under the rules or court, once there is a defense on the
file entered as of right then a party who desires to
have the proceedings disposed of without a trial i.e. a
full scale trial may only apply under order 25 rule 4
and or under the inherent jurisdiction of the court for
judgment to be entered against the defendant on the
ground that the defense discloses no reasonable answer
to the action provided that the offending pleading is
shown to be frivolous and vexatious and accordingly
struck out. In my view, therefore except the
defendant’s defense is shown plainly to be a sham, the
plaintiff’s application is one which cannot be said to
be within the rule which entitles him to apply for
summary judgment; the point being here made is that a
plaintiff who desire to take advantage of the summary
process of the court under Order 14 to have the
proceedings disposed of must act vigilantly in the
ordinary course before a defense is entered and where a
defense entered as of right is on the file beyond being
able to explain away his delay with a view to
demonstrating that the delay is not unreasonable, the
applicant would have to clearly demonstrate that the
defense is a “sham” for the rule as it currently stands
cannot by any stretch of imagination be said to defeat
the rights of a defendant who ordinarily enters his
defense to the action to be driven away from the
judgment seat without the court inquiring into the
issues raised in his defense.
Having so said, I now
turn to consider the application with a view to finding
out if it was indeed one which was made within the
intendment of the rule – Order XIV rule 1 of the rules
of court as amended by LI 1129? I have examined the
entire processes grounded on the application purported
to have been taken out under the said order and I am of
the firm view that having regard to the defendant’s
assertion that although they had received the amount the
plaintiff’s Managing Director had directed them to use
the same in reducing their indebtedness to them in a
running account which exists between them which
assertion having been controverted by the plaintiffs is
a matter which under rule 5(1) herein before referred to
falls under the category expressed as “that there ought
for some other reason to be a trial of that claim or
part;” indeed, in the case of Miles v. Bruce (1969) 1QB
258@ 265; [1968] 3ALL ER 632—637 Megarry J speaking on a
similar point arising under substantially the same
provision contained in their Order 3 rule 1 expressed in
words similar to rule 5(1) of our order 14 observed
thus:
“These last words seem
to me to be very wide. They also seem to me to have
special significance when as here most or all of the
relevant facts are under the control of the plaintiff
and the defendant would have to seek to elicit by
discovery, interrogatories and cross-examination of
those, which will aid her. If the defendant cannot
point to a specific issue, which ought to be tried, but
nevertheless satisfies the court that there are
circumstances, which ought to be investigated then, I
think that the excluding words are invoked. There are
cases in which the plaintiff ought to be put to strict
proof of his claim, and exposed to the full
investigation possible at the trial, and in such cases
it would in my judgment be wrong to enter summary
judgment for the plaintiff…. The words” …there ought
for some other reason to be a trial.” seem to me to give
the court adequate powers to compare order 14 to a good
servant and prevent it from being a bad master.”
Clearly, in my view the defendant appellant has by its
defense which under the rule may be one of the means of
showing cause provided a reasonable ground for the court
to require the plaintiff to be brought for interrogation
so that the real truth as to the money being used at the
direction of the plaintiff’s managing director to reduce
their indebtedness may be inquired into. I do not think
that the version of the said matter which is purely in
the realms of facts could have summarily been determined
as the trial judge did, the rule not being one which
permits a trial on affidavit. I think further that if
the trial judge had averred his mind to the provisions
of rule 3(2) of the order, he would have having regard
to the special circumstances raised by the defendant,
ordered a director or officer of the company to attend
for the purpose of being examined on oath.
See (1) SULLIVAN v.
HENDERSON [1973] 1 ALL ER 48. It being so I am of the
view that the judgment based thereon must be set aside,
the matter not being within the intendment of Order 14
rule 1.
I now turn to the
consequences of a reply being filed by a plaintiff who
before then had invoked the provisions of Order 14 rule
1. I think that such a subsequent conduct by the
plaintiff is one which has the effect of waiving an
insistence on the application under Order 14 for by its
very nature a reply is a step which advances the
progress of the action towards a full scale trial and is
therefore indicative of an abandonment of a process
which must have been filed earlier on intended to have
the action disposed of without a trial. I think that by
filing the reply, the plaintiff is deemed to have taken
a fresh step which decisively put an end to the prior
application under Order 14 and on this note I wish to
observe that it was not open to the plaintiff to have
retracted the effect of the unequivocal step taken by
way of the filing of a reply, a step which meant that if
anything at all, it could only apply for directions in
the matter and raise the unreasonableness of the defense
as a point to be argued on the hearing of the said
application or do so by way of a motion. In particular,
it is important to refer to para 13 of the reply filed
which when read puts the matter beyond doubt, the
plaintiff in the said paragraph raised a point under
order 25 of the rules of the High Court as follows:—
“By reason of the
matters aforesaid the plaintiff will contend that the
defendant’s statement of defense does not disclose any
reasonable defense to the plaintiff’s claim and same
should be dismissed.” This in my view is an expression
peculiar to order 24 r.4 of the rules of the trial High
Court and I must say quite clearly the plaintiff must
have known the effect for this unequivocal plea.
On the whole, I am of
the view that on this ground also, the application under
Order 14 was one which was overtaken by events, the
results of which is that it was wrong for the same to
have been moved thereby rendering the proceedings based
thereon fundamentally irregular and hence I proceed to
have the same set aside together with the judgment
thereon based. It must be said that when parties
voluntarily take steps under the rules of court they
must be deemed to have opted for the ordinary
consequences of their acts in which case if they negate
a prior act on the record, they are deemed to have so
intended.
In the result, I
proceed to set aside the judgment, the subject-matter of
these proceedings and in place thereof direct that the
matter be proceeded with by the plaintiff taking further
steps on the reply.
N. S. GBADEGBE
JUSTICE OF APPEAL
BADDOO, JA:
I agree
S. G. BADDOO
JUSTICE OF APPEAL
ANSAH, JA:
I also agree
J. ANSAH
JUSTICE OF APPEAL
COUNSEL
MR. A. NORVOR FOR THE
PLAINTIFF
MR. K. HEWARD-MILLS FOR
THE DEFENDANT. |
