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JUDGMENT
LARTEY J.A.:
This appeal is from the
Judgment of the High Court Accra granting the
Plaintiff's application for Summary Judgment under Order
14 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A) as amended by the High Court (Civil Procedure)
(Amendment) (No. 2) Rules, 1977 (L.I. 1129).
On January 30, 2001,
the Plaintiff issued against the Defendant a Writ for
the following reliefs:—
US$41,409.50 or its
equivalent in Cedi at the prevailing Forex Bureau rate
of exchange being a refund of part payment of purchase
price due from the Defendant to the Plaintiff in respect
of a contract for the sale by the Defendant to the
Plaintiff of a house at East Airport, Accra.
b. Interest on the said
amount at the prevailing bank rate from October 5, 2000
to the date of Final Judgment.
c. Damages.
d. Costs.
The Writ of Summons and
Statement of Claim were served on the defendant on
January 30, 2001, and on February 13, the defendant
entered appearance by its solicitor. On February 19,
2001 the Plaintiff took out a summons for summary
Judgment under Order 14. In the supporting affidavit
sworn to by the Plaintiff it was deposed in paragraph 6
that by a contract in writing dated August, 14 1998, the
defendant agreed to sell and the plaintiff agreed to buy
one of the defendant's bedroom houses at East Airport at
a cost of US$130,050.00 which was subsequently revised
to US$139,465.00 payable in stages or by lump sum
payment or otherwise upon demand after completion of the
house.
It was further deposed
that an express term of the contract stipulated that in
the event of the contract being rescinded all the money
that might have been paid by the plaintiff by way of
part payment should be refunded by the defendant less a
sum equal to ten percent of the total purchase price. In
paragraph 9 thereof the plaintiff deposes that on
September 25, 2000 after making a total payment of
US$55.386.00 he could no longer afford to continue with
the payment whereupon he wrote to the defendant to
terminate the contract. According to the plaintiff the
defendant accepted the rescission of the contract and
requested the plaintiff to submit particulars of Bank
Account for a refund, which he did, but the defendant
had failed to honour the terms of the contract to refund
the balance of US$41,409.50 to him.
The defendant filed an
affidavit in opposition to the application for summary
judgment together with its statement of defence on
February 28, 2001. The defendant also filed a
counterclaim for a declaration that the plaintiff was in
breach of contract and a relief for breach of contract
for general damages.
The summons came before
the court on March 1, 2001. That application was acceded
to and final judgment entered in favour of the plaintiff
for the amount claimed with costs. In her ruling the
judge held inter alia as follows: "It is my view that
there is no merit whatsoever in the defence and the
affidavit in opposition filed. I find that this is not
one of the cases where evidence will have to be taken.
As far as I am concerned there are no triable issues and
the defendants are using that excuse to delay payment of
the amount to the plaintiff. In this regard the
application for summary judgment is hereby granted as
prayed. Costs of ¢10 million to the plaintiff".
It is from this
decision that the defendant has appealed to this court
on two grounds as follows:—
"1. The summary
judgment granted is against the weight of evidence.
2. The trial court
erred in law when in the face of glaring arguable point
of law and triable issues raised by the defendant's
statement of defence and affidavit in opposition it
granted the application for summary judgment".
I intend dealing first
with the second ground which is the core issue in the
grounds of appeal. In his written submission filed on
November 11, 2002, learned counsel for the plaintiff
referred to paragraphs 16 and 17 of the defendant's
affidavit in opposition which he described as imprecise
as to the issues raised therein. The issues identified
by counsel in the said paragraphs are (i) the currency
of the actual transaction vis a vis the currency written
in the contract, and (ii) the issue as to whether the
defendant who is not in breach can be held liable for
loss of interest or exchange rate fluctuations.
Counsel's conclusions are that there are no triable
issues to warrant the trial court's findings being
disturbed.
On the other hand,
learned counsel for the defendant in his submission
raises issues in the computations as pleaded in
paragraphs 4 to 9 of the statement of claim, describing
those computations as erroneous which do not reflect the
true state of accounts of payment made by the plaintiff.
In its affidavit in opposition, the defendant contends
that having made part payments in cedis in 1998/99 the
plaintiff cannot be heard to say that the refund of the
amount be made in dollars or their cedi equivalent, and
that the plaintiff is entitled to the sum paid by him to
the defendant.
In the statement of
defence the defendant denied the plaintiff's averment
that he made a total payment of US$55, 356.00 and that
it was the cedi equivalent that the plaintiff paid in
July 1998 and in August 1999. Above all, the defendant
contends that the plaintiff's action in terminating the
contract amounted to a breach of contract because it was
compelled to borrow money from the Agricultural
Development Bank to complete the house. In support of
the defendant's contention that the plaintiff's act
amounts to a breach of contract, the defendant states
that the plaintiff approached it again a year later to
confirm that he was still interested in purchasing the
house. And as a result of the extra works requested by
the plaintiff the additional works have raised the price
considerably, and the house remains unsold.
Upon evaluating the
statement of defence and the affidavit in opposition, it
is my view that the defendant did raise issues which
could have been resolved by taking evidence. On this
point, I would like to adopt the dictum of Apaloo C.J.
in WILSON VS: SMITH [1980] GLR 152 at page 158 wherein
he said:
"It seems to me that
where the defence filed on its face is not a sham one, a
judge who is still not entirely satisfied, can properly
exercise his discretion under Order 14 rule 3 (a) of L.N.
140A and allow the defendant to be examined on oath. In
that event, the judge would have the benefit of evidence
given on oath. This would be a better course than to
disregard a defence on the file. It would indeed be
strange if a defendant cannot satisfy a judge under
Order 14 rule 1 of L.N. 140A that he has a good defence
if he has infact filed one".
Of course I am not
unaware that Order 14 rule 3 L.N. 140A has been repealed
and re-enacted in a slightly different language by L.I.
1129 which came into effect on September 30, 1977. Rule
3 (1) of L.I. 1129 provides as follows:— "A defendant
may show cause against the application by affidavit or
otherwise to the satisfaction of the court". The phrase
"otherwise to the satisfaction of the court" may be
construed to mean that in place of an affidavit, a
defendant against whom judgment is sought in default of
defence would be entitled to have the statement of
defence examined or looked at, to determine whether it
contains triable issues. Indeed it has been held in GILL
VS: WOODFIN (1884) 25 Ch. D. 707 that a defence filed
after the application for summary Judgment was made but
before the hearing of the application was not a nullity
and should be looked at.
In the instant case the
judge became aware of the defence filed three or four
clear days before she gave summary judgment against the
defendant. The defence filed can in no way be described
as a sham. It was unfortunate that the trial judge found
no merit in it and chose to label it as an excuse to
delay payment to the Plaintiff. On the contrary, the
affidavit in opposition and the defence filed as well as
the counterclaim raise triable issues, and in my view
the defendant is entitled to have them determined on the
merits.
I am of the opinion
that this appeal ought to succeed. I would allow it and
set aside the ruling together with the order for costs.
I would also remit this matter to the High Court, Accra
with a direction that the court do grant the defendant
leave to defend the action, and thereafter the suit
should take its normal course. Although the defendant is
clearly entitled to costs of this appeal, I would
further direct that costs in the court below should
abide the result of the fresh hearing.
F. M. LARTEY
JUSTICE OF THE APPEAL
COURT
ESSILFIE-BONDZIE J.A.:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF THE APPEAL
COURT.
QUAYE J.A.:
I also agree.
G. M. QUAYE.
JUSTICE OF THE APPEAL
COURT
COUNSEL
J. ACQUAH-SAMPSON FOR
RESPONDENT
LAWRENCE TAGOE WITH
JOSEPH MANTEY FOR APPELLANT. |
