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Practice and
Procedure - Summary judgment -
Agreement – debt –
Whether or not the application
disclosed an issue that the
court ought to have inquired
into even if not by plenary
trial by resort to the powers
conferred on it - Order 14 rule
3 (2) - High Court (Civil
Procedure) Rules, 2004, CI 47
HEADNOTES
In the face
of the controversy relating to
the demand from the appellant
and the inability of the
appellant even in its
supplementary affidavit to
counter the denial by the
respondent with any evidence of
an admission by the respondent
of the claim to the money, on
the balance of probabilities the
appellant had failed to lead
such evidence as to entitle it
to a summary judgment in the
matter
HELD
We think that
the nature of the agreement and
the technical details contained
therein are such that the court
ought to have made an order
granting leave to the defendant
to defend the action so that the
issue of the appellant’s
compliance with the technical
details might be inquired into.
For these reasons, we are of the
view that the Court of Appeal
was right in reversing the
decision of the High Court and
accordingly the instant appeal
is dismissed and the decision of
the Court of Appeal that is on
appeal to us is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 2004,
CI 47.
CASES
REFERRED TO IN JUDGMENT
Sadhuwani v
Al- hassan [1999-2000] 1 G.L.R
19
Anglo-Italian Bank v Wells,
Anglo-Italian Bank v Davies
(1878) 38 LT 197
Roberts v Plant [1895] 1 QB 597.
Sullivan v
Henderson [1973] 1 All ER 48
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, Volume 37
(Fourth Edition) paragraph 414
DELIVERING
THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
F.S. TSIKATA
FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
DAVID
OFOSU-DORTE FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
GBADEGBE, JSC:-
This is an appeal from the
decision of the Court of Appeal
that reversed the judgment of
the High Court, Accra, which had
allowed in favour of the
appellant an application for
summary judgment. It appears
from the judgment of the Court
of Appeal that it was of the
opinion that there were triable
issues disclosed by the
respondent’s affidavit to the
application under Order 14 of
the High Court (Civil Procedure)
Rules, 2004, CI 47.Delivering
the judgment of the court, Kusi
Appiah JA after referring to the
case of SADHUWANI v AL-
HASSAN [1999-2000] 1 G.L.R
19 observed as follows at pages
162-163 of the record of appeal:
“In the instant appeal, it is
one of the appellant’s
contentions that the mode of
payment to the respondent was
subject to the general terms and
conditions of the contract,
clause 4, where the
defendant/appellant has to
satisfy itself that the works
had been properly done according
to the specifications before
invoices are accepted and
payments made (see Exhibit “KET
4”). If the appellant claims
that they did not accept the
last invoices for payment
because the respondent had not
done the works in accordance
with their specifications, it
certainly is an issue for the
court to determine and apportion
responsibility.”
In our view, the above
pronouncement by the learned
justices of the Court of Appeal
whose judgment is under attack
before us satisfies the
requirements of Order 14 rule
3(1) of the High Court Rules, CI
47 that is expressed thus:
“A defendant may show cause
against the application by
affidavit or otherwise to the
satisfaction of the court.”
Although the procedure for
summary judgment under order 14
enables the appellant to obtain
speedy and summary judgment
without a trial even in cases
where the defendant to the
action expresses an intention to
defend the action, the court may
only grant the application in
cases where the defendant is
unable to set up a good defence
or raise an issue which ought to
be tried. See: (1)
ANGLO-ITALIAN BANK v WELLS,
ANGLO-ITALIAN BANK v DAVIES
(1878) 38 LT 197; (2)
ROBERTS v PLANT [1895] 1 QB
597.
We are of the opinion that the
allegation by the respondent
that the payment was subject to
the appellant satisfying the
requirement contained in clause
4 of the agreement was a good
defence to the action and also
raised an issue that under rule
5 (1) of Order 14 raised an
issue that comes under the
description ‘there ought for
some other reason to be a trial
of that claim or part of it.’ It
is to be observed that
respondent had in “Exhibit HMC
1A” and “HMC 1B” which were
written before the commencement
of the action herein raised
issue with some works that the
appellant had carried out under
the agreement between them.
These letters were written even
before the appellant’s lawyers
made a demand contained in
“Exhibit KET6”, which was dated
10 August 2007 in respect of the
same amount that is claimed by
the appellant against the
respondent in the action herein.
As it seems those issues were
not resolved before the writ
herein was issued and therefore
it was only right that when the
appellants filed the application
for summary judgment the
respondent by way of defence in
their affidavit in answer made
reference to what in their view
was an outstanding obligation
that was undischarged by the
appellant. In our thinking, the
said defence was made in good
faith and not being a sham ought
to have been inquired to by the
learned trial judge else its
effect would be to shut out the
respondent.
Indeed, the respondent had
categorically in its affidavit
in answer to the application for
summary judgment deposed to in
paragraphs 11 -14 as follows:
“(11) Defendant/Respondent
denies paragraphs 4, 10, 11, and
14 of the Plaintiff/Applicant’s
affidavit in support of this
present application.
(12) Defendant/Respondent
disputes the claim of the
Plaintiff/Applicant and contends
that the Defendant/Respondent
that it is not indebted to the
Plaintiff/Applicant.
(13) Defendant/Respondent
Company in response to the said
paragraphs of the Plaintiff’s
Affidavit in support of the
application for Summary Judgment
states that the Agreement
executed by the Parties on 1st
of August, 2006 provided in
various schedules the
specifications for the execution
of works for which the
Plaintiff/Respondent either
failed to execute or executed
them not according to the said
specifications.
(14) The Defendant/Respondent
Company therefore rejected
Plaintiff/Applicant’s invoice
raised on the bases that they
were not yet due.
Defendant/Respondent further
states that the invoices amount
to an attempt by Plaintiff to
make ill-gotten gain by claiming
money for no work done.”
These depositions were in
contrast to those of the
appellant particularly;
paragraph 11 wherein it was
deposed thus:
“The Defendant has not disputed
owing the said debt, yet the
same remains due and owing from
it despite many demands both
oral and written from the
Plaintiff to the Defendant.
Attached hereto, respectively
marked “KET5”, are a letter to
the Defendant from the plaintiff
dated 28th July, 2007
and another from our lawyers in
the Netherlands which, together
with earlier demands, have
simply been ignored.”
In the face of the controversy
relating to the demand from the
appellant and the inability of
the appellant even in its
supplementary affidavit to
counter the denial by the
respondent with any evidence of
an admission by the respondent
of the claim to the money, on
the balance of probabilities the
appellant had failed to lead
such evidence as to entitle it
to a summary judgment in the
matter.
Writing on the subject of
summary judgment, the learned
authors in Halsbury’s Laws of
England, Volume 37 (Fourth
Edition) paragraph 414 at pages
308-309 provide as follows:
“The power to give summary
judgment under Order 14 is
intended to apply in clear
cases, where there is no
reasonable doubt that the
appellant is entitled to
judgment and where it is
inexpedient to allow a defendant
to defend for mere purposes of
delay. Leave to defend will
therefore be given where the
defendant shows that he has a
fair case, that there is an
issue or question which ought to
be tried, or that there are
reasonable grounds for setting
up a defence or even a fair
probability that he has a
bona-fide defence. However, the
defendant does not have to show
a complete defence, but only a
fair probability of a defence,
or that there is a real or
substantial issue or question to
be tried or that there is a
dispute as to facts or law which
raises a reasonable doubt
whether the appellant is
entitled to judgment. The
procedure under Order 14 was not
intended to shut out a defendant
who could show that there was an
issue or question that ought to
be tried or that for some other
reason there ought to be a
trial.”
Although the above statements
were made in relation to Order
14 of the 1965 rules of
procedure that govern procedure
in the High Court in England at
the time, the provisions
contained in Order 14 of CI 47
are expressed in substantially
the same words and accordingly
these statements are equally
applicable to us. We think that
the statements alluded to above
are substantially the same as
pronounced by Wood JA (as she
then was) in the Sullivan case
(supra) wherein she observed at
page 25 thus:
“We think that in such
applications, i.e. applications
to sign final judgment, what is
required of a trial judge is
that he or she examines the
pleadings and determines whether
there exists a bona fide or good
defence that is a defence known
in law. In my view, any such
bona fide or good defence or a
defence known in law when raised
would constitute a triable issue
of fact or law. But a judge is
not empowered to try the merits
of the respective claims using
the affidavit evidence in hand.
Indeed the application for
summary judgment is not intended
to be used for the resolution of
triable issues that may emanate
from the pleading.”
This being the case, we think
that the learned justices of the
court of Appeal were right when
they came to the conclusion on
the materials on which the
appellant obtained summary
judgment in the trial High Court
that they disclosed matters,
which ought to be tried. We are
unable to comprehend how in the
face of the affidavit of the
respondent that clearly raised
an issue the learned trial judge
proceeded to allow the
application. A fair reading of
the proceedings founded on the
application before the High
Court at pages 125- 133 when
counsel engaged in arguments
reveals clearly that the
application was not one that
comes within the scope of Order
14. We have tried to read the
application and the processes
based thereon and each time we
read it we had the impression
that the application disclosed
an issue that the court ought to
have inquired into even if not
by plenary trial by resort to
the powers conferred on it
under Order 14 rule 3 (2) as
follows:
“Where the defendant proceeds to
show cause, the Court may order
the defendant or in the case of
a body corporate, any director
manager, secretary or similar
officer of it, or any person
purporting to act in such
capacity to attend and be
examined on oath or to produce
any document f it appears to the
Court that special circumstances
make this desirable.”.
The power conferred on the court
under this sub-rule is to be
exercised in exceptional
circumstances. In the case of
SULLIVAN v
HENDERSON [1973] 1 All
ER 48 at the hearing of an
application for summary judgment
in the course of a winding up
application under Order 86 that
conferred on the court powers
that are substantially the same
as order 14, at page 51 of the
judgment, MEGARRY J (as he then
was) made the following
observation that we consider
useful to this case:
“There is one further point that
I should mention for guidance in
future cases. The present case
seems to me to illustrate the
difficulties that may arise if
leave to cross-examine a witness
on his affidavit is given in
cases under RSC Ord 86.The
summary process under RSC Ord 86
is one thing, and the trial of
an action is another: a hearing
under RSC Order 86 with oral
evidence is liable to become
neither one nor the other, and
to share the disadvantages of
each. The hearing ceases to be
summary and the absence of
pleadings and discovery, for
example, prevents the hearing
from achieving the
exhaustiveness of a trial. The
court may be put in a position,
at the end of a two day hearing,
of saying that there ought to be
a trial of the action, in which
case there will then be a
repetition of much that has
occupied the court and the
parties during the hearing under
RSC Ord 86. I observe that rule
5(3) (b) of the order, which
authorizes the making of an
order for the defendant to
attend and be examined oath,
qualifies the power by the words
‘if it appears to the court that
there are special circumstances
which make it desirable that he
should do so’ These are weighty
qualifications, and I would
subscribe to the cautionary
words of Field J in Millard v
Baddeley uttered in
relation to the corresponding
procedure under RSC Ord 14.There
may be cases where it is right
to give leave to cross-examine,
perhaps limited to a single
point, although this has its own
problems both for counsel and
for litigants who are bursting
to reveal all; and in any case I
would expect cases in which it
would be desirable for such
leave to be given to be of
comparatively rare occurrence.”
Further to this, we are of the
view that having regard to the
fact that the contract on which
the action turned was in a
technical area of engineering
that required a judge before
whom any dispute is faced to
patiently consider the
subject-matter before acceding
to an application that by its
nature was summary such as that
before us was not one suitable
for summary judgment once the
defendant raised an issue that
the appellant had not satisfied
the requirement in the agreement
that may be said to be a
condition precedent to payment.
We think that the nature of the
agreement and the technical
details contained therein are
such that the court ought to
have made an order granting
leave to the defendant to defend
the action so that the issue of
the appellant’s compliance with
the technical details might be
inquired into.
For these reasons, we are of the
view that the Court of Appeal
was right in reversing the
decision of the High Court and
accordingly the instant appeal
is dismissed and the decision of
the Court of Appeal that is on
appeal to us is affirmed.
N.S.
GBADEGBE
JUSTICE OF
THE SUPREME COURT
G.T. WOOD
(MRS)
CHIEF JUSTICE
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
J.V.M. DOTSE
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
COUNSEL:
F.S. TSIKATA
FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
DAVID
OFOSU-DORTE FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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