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SOPHIA ADINYIRA (Mrs.) JSC:
The parties are beneficiaries
named in the will of the late
Christian William Kumi who died
on 14 April 1989. The said will
dated 10 March 1989 was admitted
to probate on 2 March 1992. The
devise under paragraph 4 (i) and
(ii) of the said will were:
“4. I BEQUEATH my real estate to
the following: -
(i) My proposed 3-storey
building at Nii Boi Town, Abeka,
to my children named in
paragraph 2 supra, inclusive of
my wife Doris Naadu Nartey till
she remarries or dies;
(ii) My single storey building
W.39 Boi Man at Abeka to my wife
Doris and my children named in
paragraph 2 supra in equal
shares.”
The children named in paragraph
2 of the will are Christian Kumi
the defendant/appellant,
(hereinafter defendant) Betty
Kumi and Nana Kwadwo Kumi son of
the plaintiff/ respondent
(hereinafter plaintiff).
On 18/8/99, the
plaintiff issued a writ of
summons for herself and on
behalf of her infant son Nana
Kwadwo Kumi against the
defendant at the High Court
Accra. Her claim was that even
though the house numbered W.39
Boi Man at Abeka belongs to the
plaintiff, defendant and others
jointly by the terms of the
devise under her late husband’s
will, the defendant was
preparing to sell or alienate it
to the exclusion of the
plaintiff and the other
beneficiaries. She therefore
asked for the following reliefs:
(a)
A declaration that the plaintiff
and the son Nana Kwadwo Kumi
have equal shares in House No.
W.39 Boi Man at Abeka as stated
in paragraphs 2 and 4 (ii) of
the will of Christian William
Kumi.
(b)
An order for valuation and
judicial sale and distribution
of the proceeds equally amongst
the beneficiaries mentioned in
paragraphs 2 and 4 (ii) of the
will of Christian William Kumi
dated 10 March 1989.
(c)
Perpetual injunction restraining
the defendant his agents,
assigns, workmen, servants,
privies from disposing of,
alienating and or selling House
No. W.39 situate and lying at
Boi Man, Abeka.
The defendant resisted
the action on the basis that the
late Christian William Kumi in
1980 and during his lifetime
‘effectively gifted over
customarily’, the said house to
Mrs. Comfort Kumi (deceased) who
was the mother of the defendant.
His mother predeceased his
father who purported to devise
the said house in his will. The
defendant and his siblings filed
a caveat but were prevailed upon
to withdraw it with the
understanding that their rights
of ownership and control of
their late mother’s property
would not be disturbed. He
further denied that he was
making any effort to dispose of
the said house.
On 23 March 2000,
hearing of the case started
before Gyamera- Tawiah J. The
plaintiff closed her case and
the defendant gave his evidence
in chief. The case was adjourned
to 16 /7/ 2002 for the
cross-examination of the
defendant to continue. After
several adjournments before
Asare-Korang J. (as he then was)
the case was heard de novo by
Abada J on 10 /12 /2002, and he
entered judgment for the
plaintiff on13/2/ 2003. The
defendant who was absent at the
trial, applied to have the
judgment set aside on the main
ground that he was not served
with any hearing notice. On 8/12
/2003 his application was
refused by the High Court on the
grounds that:
“I find no merit in the instant
application seeking to set aside
a judgment that was regularly
obtained. In any case if the
defendant is challenging the
validity of the will he cannot
choose parts of the bequest
made. In the circumstances I
believe the conclusions of the
court cannot be assailed and I
therefore dismiss the instant
application.”
Being dissatisfied the defendant
appealed to the Court of Appeal
on the sole ground that: ‘the
trial judge exercised his
discretion wrongly in law’. The
Court of Appeal dismissed the
appeal and affirmed the ruling
of the trial court. It is
against this decision that the
defendant has appealed to this
Court on the grounds that:
1.
The judgment is wrong in law in
that from the record of
proceedings, it was quite clear
the defendant/appellant was
denied an adequate or reasonable
opportunity to be heard, thus
infringing the rules of natural
justice
2.
The judgment is against the
weight of evidence on record.
It should be borne in
my mind that the appeal before
this court is not against the
judgment of 13/2/2003 but rather
against the ruling of the court
dated 8/12/2003 refusing to set
aside the said judgment. The
submissions made on behalf of
the defendant was that the case
which was a part heard has
suffered a checkered career and
when the case was fixed before
Abada J. he and his counsel were
absent and there was no hearing
notice served on either of
them. He said neither the trial
judge nor the appellate court
considered the reasons for his
absence and this to some extent
flouted the rules of natural
justice, and that he ought to
have been allowed to establish
his side of the story.
As I see it the main
point raised in this appeal by
the appellant is that he was not
given a hearing and this was a
breach of natural justice i.e. a
breach of the maxim audi alterem
parte rule. However this maxim
cannot avail a party who has
notice of a trial but fails or
refuses to appear. It is a
substantial requirement of
justice that a party is given an
opportunity of being heard. This
principle applies as well to
administrative enquiries and
quasi-judicial bodies.
Therefore a trial judge or a
tribunal ought to give notice of
his intention to proceed or hear
the matter to the parties
involved. Where the parties and
or their lawyers are present
before court, a trial judge may
fix a date for trial and if one
party chose to be absent, under
the rules of court, the court is
at liberty to proceed with the
trial. See the High Court
Civil Procedure Rules 2004 C.I.
47 Order 36 rule 1
[analogous to 0rder 36 rr. 16
and 17 of High Court (Civil
Procedure) Rules 1954,
applicable then], which states:
Failure to attend trial
-
(1) Where an action is
called for trial and all the
parties fail to attend the
trial judge may strike out
the action off the list.
(2) Where an action is
called for trial and a party
fails to attend the trial judge
may
(a)
Where the plaintiff attends and
the defendant fails to attend,
dismiss the counterclaim, if any
and allow the plaintiff to prove
his claim;
(b)
Where the defendant attends and
the plaintiff fails to attend
dismiss the action and allow the
defendant to prove his
counterclaim if any; or
(c) Make such order as is just.
But in the absence of either
party in court, notice of the
trial can be done by service of
hearing notice on the party or
his counsel either personally or
by substituted service.
Since the issue being
taken in this appeal is whether
the defendant had notice of the
trial by service of a hearing
notice on him, we need to look
at the record of proceedings to
satisfy ourselves.
Gyamera-Tawiah J who was hearing
the case adjourned it to
22/10/2001 for continuation. He
was however transferred and the
case, which was then a
part-heard, was on 5/3/2002
fixed before Asare Korang J. (as
he then was). From the court
notes that appears from pages
160 to 164 of the record of
proceedings, what was before
Asare Korang J. (as he then
was), was a motion for joinder
of Obiri Asare who does business
in the name of Asare Original
Pay All, as a 2nd
defendant to the suit. This
motion was filed on 7/5/2002 to
be moved on 8/5/2002. On the
said 8/5/2002, the trial judge
was unable to deal with the
motion, as there was no proof of
service. He adjourned it to
29/7/2002 which happened to be
the last occasion that the case
was before him. The record of
proceedings for the 29/7/2002
reads:
“George A. Eshun for the
applicant/ plaintiff.
Counsel for respondent absent
Plaintiff/applicant and 1st
defendant/respondent present
2nd
defendant/respondent absent.
No proof of service.
BY COURT
Adjourned to 17/10/2002 for
hearing.
2nd
defendant/respondent to be
served with motion.”
On the said 17/10/2002 the case
was fixed before Abada J. and
only the plaintiff was present
and the case was adjourned to
5/11/2002. On 5/11/2002 from the
court notes a motion for an
order on the defendant to pay
all monies accruing or yet to
accrue to be paid into court
pending the final determination
of the suit was granted. The
court order was:
“BY COURT:
Motion granted. The substantive
case is adjourned to 28/11/2002.
For hearing (sic) is to be
served on defendants and counsel
for the defendants.”
On 28/11/2002 only the plaintiff
was in court and the case was
simply adjourned to 10/12/2002.
Then on 10/12/2002 the record
reads:
“Plaintiff present.
Defendants absent, served.
Plaintiff: SOB in Ga….”
The court then proceeded to hear
the case and adjourned it to
13/12/2002 for a short address.
There was no record of any
sitting on 13/12/2002. On
13/2/2003 the plaintiff and her
counsel were present and
judgment was entered in favour
of the plaintiff.
Though it appears in the
court notes of 10/12/2002 that
‘defendants absent, served’,
there is no affidavit of service
on the record of appeal in
support of this. Counsel for the
plaintiff in his response argued
that even though no hearing
notice has been reproduced in
the record of appeal before the
Supreme Court, there is a part
of the judgment of the High
Court which shows clearly that
the High Court of Justice was
satisfied that the defendant had
been served with a hearing
notice before proceeding to hear
the case of the
plaintiff/respondent.
In the said judgment the
learned trial judge said:
“The defendant even though
afterwards had to be later
served by substituted service
failed to appear to counter the
suit.”
The record does not
support this statement by the
trial judge that the defendant
was served with hearing notice
by substituted service. I am
surprised that the trial judge
made such a remark, as an order
for substituted service can only
be made upon application by a
party who is desirous to have
his/her case heard, but the
other party is either evading
service or his whereabouts is
unknown. Such an application for
substituted service is usually
made by a motion ex parte
supported by an affidavit
together with a search report
from the court registry
indicating an affidavit of
non-service by a bailiff of
whatever process that was to be
served. After the court has
granted the order of substituted
service, it has to be formally
drawn up for service in the
manner ordered by the court. The
bailiff has to deposit in the
registry an affidavit of posting
as ordered by the court. On the
face of the record of
proceedings before us, no such
application for substituted
service of hearing notice on the
defendant and such order of the
court can be found in the court
notes. There is no affidavit of
non-service of the hearing
notice ordered by Abada J. on
5/11/2002. There is also no
record of any affidavit of
posting by any bailiff if the
court has even made such an
order for substituted service.
According to the record there
were only two applications for
substituted service. The first
was in respect of service of the
writ of summons, statement of
claim and an order for joinder.
The second was in respect of the
service of the judgment after
trial.
Consequently the
irresistible inference that can
be drawn from the above is that
no hearing notice as ordered by
the court on 5/11/2002 was even
prepared for service, and no
application for substituted
service was applied for and
granted by the court. It is
therefore quite clear that the
defendant was not given any
notice of the trial before
evidence was taken in his
absence. This is a clear breach
of the rules of natural justice
and the trail judge ought to
have set aside its judgment of
13/2/2003 ex debito justitiae in
the inherent jurisdiction of the
court. Had the defendant been
duly served with hearing notice
and failed to attend the trial
the court would have been
justified under the High
Court Civil Procedure Rules 2004
C.I. 47 Order 36 rule 1
[analogous to 0rder 36 rules 16
and 17 of the High Court (Civil
Procedure) Rules 1954,
applicable then] to proceed to
hear the case without him. Such
was the situation in the case of
Fah v. Bediatuo II [1964] GLR
469. The plaintiff-applicant
instituted an action for
trespass in respect of his
farm. A date was set down for
the hearing and the court
bailiff was asked to serve the
various parties to the suit with
notices of the hearing date. On
the date fixed for the hearing
of the suit, the plaintiff did
not appear, but his counsel
appeared and asked for an
adjournment. On the adjourned
date, the plaintiff failed to
appear and judgment was given in
favour of the defendants. The
plaintiff claimed he was not
served. The High Court refused
to set aside a judgment in
favour of the defendant as there
was proof that hearing notice
was served on both the plaintiff
and his solicitor.
In my opinion
where notice of a trial is
necessary a plaintiff or party
must provide proof of service of
such notice on his/her opponent
before being allowed to prove
his or her claim. In this
appeal, the case had a checkered
history at the trial court and
it was therefore fair that
adequate notice was given to the
defendant before hearing was
even started de novo since it
was a part heard with him under
cross-examination. While
agreeing with their lordships
that it is the duty of the court
to avoid unnecessary
adjournments and delays, my
belief is that in the process,
the rules of court and
principles of natural justice
must not be ignored and trampled
on as was done in this case.
When the issue of
non-service of hearing notice
was raised before their
Lordships at the Court of
Appeal, they were of the view
that:
“The case was fixed for hearing
on the 17/10/2002. On that day
there was satisfactory evidence
of proof of service of the
relevant hearing notice.”
With due respect to their
Lordships, this view is
erroneous having regard to the
record of proceedings before the
court on 17/10/2002. It is
important to refer to the record
of proceedings again. Asare
Korang J (as he then was)
adjourned the case from
29/7/2002 to 17/10/2002. This
29/7/2002 happened to be the
last day that the said learned
judge handled the matter. He did
not and could not have made an
order for hearing notice to be
served on the defendant as the
defendant was personally in
court on that day. On the said
17 /10/2002 the case was put
before a new judge, Abada J. and
only the plaintiff was present
and the judge did not order the
service of hearing notice on the
defendant who was absent. The
record of proceedings reads:
“Parties – plaintiff present.
Defendant absent.
George Eshun for the plaintiff
absent.
Counsel for the defendant absent
By Court:
The case is adjourned to
5/11/2002:”
It was on this 5/11/2002 after
the court had granted a motion
for an order on the defendant to
pay all monies accruing or yet
to accrue from the property in
dispute to be paid into court
pending the final determination
of the suit; that the court
ordered hearing notice to be
served on the defendant for the
substantive case to be heard.
The record reads:
“BY COURT:
Motion granted. The substantive
case is adjourned to 28/11/2002.
For hearing (sic) is to be
served on defendants and counsel
for the defendants.”
And as said earlier in this
judgment there is no proof of
service of the hearing notice
either personally or by
substituted service on the
defendant and his counsel. It is
therefore clear from the record
that no notice of the trial was
given to either the defendant or
his counsel.
Consequently if the
learned lordships have appraised
themselves fully with the record
of proceedings, they would, with
all due respect, have
appreciated the fact that the
defendant was not served with
notice of the hearing of the
case; and would thereby have
allowed the appeal and set aside
the judgment of 13/2/2003. As
said earlier it is trite law
that a person cannot be found
guilty or liable by an order or
judgment unless he had been
given fair notice of the trial
or proceeding to enable him to
appear and defend himself. This
is the essence of justice.
Failure by a court or tribunal
to do so would be a breach of
the rules of civil procedure and
natural justice. A judgment or
order procured under such
circumstances is in my view a
nullity. Where proceedings are a
nullity they are automatically
void and any person affected by
them can apply to have them set
aside ex debito justitiae. In
Barclays Bank of Ghana Ltd. v.
Ghana Cable Co. Ltd. [1998-99]
SCGLR 1 Acquah JSC (as he
then was) in discussing
non-service of a writ of summons
on a defendant said at page 6
that:
“When personal service proves
unsuccessful, substituted
service may be resorted to, and
unless a defendant has been
served, no process can be
initiated to obtain judgment
against him. For until such
service, the court is not seised
with jurisdiction to proceed
against the unserved defendant.”
He referred to the case of
Vasquez v. Quarshie [1968] GLR
62 holding (3) that:
”A court making a decision in a
case where a party did not
appear because he had not been
notified would be doing an act
which was a nullity on the
ground of absence of
jurisdiction.”
Acquah JSC as he then was gave
the rationale for this reason as
stated in Broom Legal Maxims
9th Edition at page
78:
“It has long been a received
rule that no one is to be
condemned, punished or deprived
of his property in any judicial
proceedings unless he has an
opportunity of being heard.”
He then referred to In R. v.
Appeal Committee of London
Quarter Sessions Ex parte Rossi
[1956] 1 All ER 670 where
Lord Denning LJ (as he then was)
said at 674 that:
‘It is to be remembered that it
is a fundamental principle of
our law that no one is to be
found guilty or made liable by
an order of a tribunal so as to
enable him to appear and defend
them. The common law has always
been very careful to see that
the defendant is fully appraised
of the proceedings before it
makes any order against him”.
In consonance with the
above principles of law, both
civil and criminal procedure
rules, allow a party to have a
judgment or order made in any
proceedings that took place
without his notice and in his
absence to be set aside. This
elementary principle of justice,
which obliges a court to hear
both parties, or at least give
them an opportunity to have
their say, before its decision,
is of such essence that even
where a person has notice of the
trial but fails to attend court,
he may apply to the court to
have a judgment or order made
against him set aside. He may do
so under Order 36 rule 2 of
C.I. 47 which provides:
2. (1) a judge may set aside or
vary, on such terms as are just,
a judgment obtained against a
party who fails to attend at the
trial.
(2) An application made under
this rule shall be made within
fourteen days after the trial.
However as explained by Amissah
J.A in Vasquez v. Quarshie
supra in relation to the
analogous provision under Order
36, r. 18 of the Supreme [High]
Court (Civil Procedure) Rules,
1954 (L.N. 140A), the above rule
of a time limit of 14 days only
applies to a party who had
notice of the trial. But where
in the case of a party who had
no notice of the trial he has as
of right to apply to have the
judgment set aside as the
proceedings was without
jurisdiction. He said at page
65:
His entitlement to have the
judgment set aside in such
circumstances is as of right and
should not be made dependent on
the discretion of the court.
(Emphasis mine) A court making a
decision in a case where a party
does not appear because he has
not been notified is doing an
act which is a nullity on the
ground of absence of
jurisdiction. A person who is
condemned in his absence in
proceedings of which he has no
knowledge cannot be limited as
to the time within which he may
repudiate the decision.”
I fully endorse the
above reasoning. In this
present appeal, it is my
considered opinion that once
there is no evidence on record
to support the fact that the
defendant was served with
hearing notice the learned
justices erred in coming to the
conclusion that the judgment was
regularly obtained. They
commented that up to date the
defendant has not appealed
against the judgment of
13/2/2003. I do not think the
defendant need to appeal against
the judgment of 13/2/2003, which
was clearly a nullity. Where
proceedings are a nullity they
are automatically void and any
person affected by them can
apply to have them set aside ex
debito justitiae in the inherent
jurisdiction of the court. As a
result the defendant has a right
to pursue an appeal against the
trial court’s refusal to set
aside the said judgment.
Without attempting to
assess the defendant’s probable
chances of success in the
action, the defence set up by
the defendant that the subject
matter in dispute was gifted to
his mother is not frivolous.
Such a defence is not a
challenge of the validity of the
will as the trial court said
when it was considering the
defendant’s application. The
defendant is claiming the
property had ceased to belong to
his father as a result of the
gift inter vivos, and therefore
he ought not to have included it
in his will. A challenge to a
specific devise in a will does
not affect the validity of a
will. Such a will could be
admitted to probate whilst an
action is taken to determine the
ownership of such property. The
defence put up by the defendant
raised a valid legal issue,
which he ought to be given the
opportunity to establish. The
trial court therefore erred in
dismissing this point, when
considering the motion to set
aside the judgment.
For the reasons given in this
judgment, this appeal succeeds.
Accordingly, the judgment of
13/2/2003 is hereby set aside.
The case is remitted to the High
Court to be heard on its merit
MRS. S. O. ADINYIRA
JUSTICE OF THE SUPREME COURT
S. A. B. AKUFFO
JUSTICE OF THE SUPREME COURT
S. A. BROB BEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL
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G. Boadu, Esq.,, for
Appellant.
George Eshun for the Respondent |
