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JUDGMENT

ANIM, J.A.

In this appeal the Defendant/Appellant (hereinafter referred to as "The Defendant") is seeking for the reversal of the ruling of the Circuit Court, Tema, presided over by His Honour Kwadwo Owusu for refusing to set aside the judgment delivered by him on 15th April 2002 in favour of the Plaintiff/Respondent (hereinafter referred to as "The Plaintiff").

The facts culminating is this appeal may be summarised as follows:— by a Writ issued by the Plaintiff on 5th February 1999, she claimed against the Defendant the following reliefs:—

(a) Declaration of title to the land at Tema East Akosombo measuring 100 x 100 feet with uncompleted building thereon.

(b) An order for perpetual injunction to restrain the Defendant, his agents, assigns, workmen etc, from interfering in the Plaintiff's project until the final determination of this suit.

(c) Damages for trespass.

After pleadings had closed Counsel for the Plaintiff filed Summons for Directions on 17th December 1999 and it was fixed for hearing on 23rd December 1999. There is no indication from the record of proceedings that summons for Directions was taken.

Meanwhile, on 24th February 2000 counsel for the Defendant, filed a Motion on notice for interlocutory injunction, which was fixed for hearing on 8th March 2000.

On the 8th March 2000 the Plaintiff and the Defendant were absent. However, both counsel were present. The Court however adjourned the case to the 16th of March 2000 for the hearing of the application.

On the 16th March 2000, the Court did not sit but the proceedings show that the motion for interim injunction was moved on the 3rd of April 2000. Upon a complaint by the Defendant that there were some people in occupation of the house, the subject-matter of this suit, the Court Ordered the Police at Ashaiman to assist the Defendant to bring all those people in the said house to the Court on 5th April 2000 for interrogation in open court. On the said date one Vida Ofosu and Christian Opare appeared before the Court, whereupon the Court ordered them to vacate the house by 12th April 2000 or in default, the Court would Order that they should be ejected forcibly. The Court then adjourned the matter to 13th April 2000 to ascertain whether or not those in occupation of the house had vacated as ordered by the Court. It is noteworthy that on this very day i.e. 5/4/2000 Counsel for the Defendant filed Notice of Amendment for leave to amend his pleadings by adding a counter-claim. The notice was fixed for hearing on the 13th of April 2000. On the 13th of April 2000 the Court did not sit, and there is no trace in the record which shows that the amendment was ever taken.

From the 5th April 2000, the next sitting of the Court was 6th December 2000. The Court notes for the day read:—

"BY COURT: Plaintiff present, Defendant absent

Mr. Kpodovia for the Plaintiff present

Mr. Andoh for the Defendant absent

Mr. Kpodovia:— We want ¢1,000,000 as costs and to serve Hearing Notice on the Defendant.

BY COURT: Case is adjourned to 14/12/2000 for hearing. Hearing Notice to be served on the Defendant. ¢100,000 costs made against the Defendant.”

On 14th December 2000 the Court sat and the following are the notes recorded of that day's proceedings:—

"Time: 1.25pm

BY COURT: Plaintiff present..

Defendant absent. Mr. Ando for the Defendant absent. Mr. Modesto Kpodovia for the Plaintiff present. The evidence of the Plaintiff is given below."

Thereafter, the Plaintiff opened her case and proceeded to lead evidence. After tendering exhibits "A" and "B" in support of her case, the suit was adjourned to 21/12/2000 for continuation. On the said date the suit was further adjourned to 4th January 2001 for further hearing.

On 4th January 2001 the Plaintiff and her counsel were pressent. The Defendant and his counsel were however absent but examination-in-chief of the Plaintiff continued. After the end of her case the hearing was adjourned to 8th January 2001 for fur hearing. On this day in the absence of the Defendant, the Plaintiff called three witnesses to close her case. Accordingly, the case adjourned to 16th January 2001 for judgment. Instead of 16th January 2001, the judgment was delivered on 24th January 2001.

On 4th February 2002, Counsel for the Defendant filed a Motion on Notice set aside the judgment delivered on 24th January 2001, and further for a stay of execution of the said judgment. By his ruling dated 15th April 2002 the Court dismissed the said application.

It was against the trial Judge’s refusal to set aside the judgment of the Circuit Court dated 24/1/2001 that the Defendant has appealed to this Court. In the Notice of Appeal filed on 17th April 2002 (3) three main grounds of appeal were set out.

The Appellant’s ground (a) was formulated as follows:—

“that the entire judgment itself is null and void ab initio on the ground that the hearing notice allegedly served on the Defendant barely 24th hours before the hearing of the suit breached order 36 rule 9 of the High Court Civil Procedure Rules."

In arguing this ground Learned Counsel for the Defendant submitted that under this provision the Plaintiff was mandated to at least give (10) ten days’ notice of trial to the Defendant. However, as far as the facts of the case go, the Defendant was allegedly served with hearing notice at 8.49 am on the 13th December 2000 to appear before Court on the following day i.e. 14th December 2000. According to Counsel, this was seriously in gross violation of Order 36 rule 9 and as such the learned trial Circuit Judge should have adjourned the case to enable the Plaintiff sufficient time to enable her serve the Defendant with fresh hearing notice. Learned Counsel submitted that in view of the mandatory nature of this provision, the entire proceedings thus became null and void ab initio. Relying on the leading case of MOSI V BAGYINA (1963) 1 GLR 337, Counsel submitted that the proceedings having been rendered null and void an initio, the Learned trial judge had no discretion in the matter at all since he was duty bound to set aside the entire judgment.

Learned Counsel for the plaintiff fiercely resisted these submissions and argued that from the record of proceedings, notices were given to the Appellant several times to be present in Court for the trial to go on but to no avail. Counsel went on to state that the Appellant was served with (2) two hearing notices before the hearing of the suit.. The first Hearing Notice was issued on the 31st day of October 2000 and the suit was fixed for hearing on the 28th of November 2000 and same was served on the Defendant on the 13th of November 2000 but he failed to attend court.

The second Hearing Notice, according to counsel, was issued on the 6th December 2000 and the suit was fixed for hearing on the 14th December 2000 and same was served on the Defendant on 13th December 2000. Learned Counsel submitted that if it is the Defendants case that he was served a day before the hearing what then did the Defendant do as a diligent Defendant who had a counter-claim to prosecute. That the Defendants did nothing. Learned Counsel finally submitted that the suit was determined on its merits. Evidence was taken and the Plaintiff called witnesses as can be seen from the record of proceedings. Counsel cited the case of ADU V ANKUMAH (1972) 1 GLR 22 to buttress his argument that in so far as the Defendant was served with the hearing notices and he failed to camesic to Court and the matter was determined on its merits, the court was justified in refusing to set aside the default judgment.

I must say at the on set that I have meticulously combed the entire record of proceedings without discovering even the slightest indication anywhere, that the Defendant was served with (2) two hearing notices before the hearing of the suit. Indeed, the allegation that the first hearing notice was issued on the 31st day of October 2000 and the suit was fixed for hearing on the 28th of November 2000 and same was served on the Defendant on the 13th of November 2000 but he failed to attend Court is not borne out by the record of proceedings. Nowhere, can such information be found. And I am amazed that learned Counsel should state this as a fact without first searching through the records. There was only one hearing notice before the hearing of the suit.

Order 36 rule of High Court (Civil Procedure ) rules L.N. No.140A provides as follows:—

“Ten days notice of trial shall be given unless the party to whom it is given has consented, or is under terms or has been ordered to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court or a Judge. Short notice of trial shall be four days' notice, unless otherwise ordered.”

Under the Interpretation Act 1960 (C.A.4) it is provided in section 27 thus:—

“In an enactment made after the passing of this Act, “shall be construed as imperative and "may" as permissive and empowering."

A critical examination of Order 36 rule 9 leaves me in no doubt that the Defendant was entitled to ten days' notice of trial unless he had consented, or is under terms or has been ordered to take short notice of trial. And where short notice of trial had been ordered four days' notice was required unless otherwise ordered.

In the case before the court the record of proceedings indicates that from the 5th of April 2000 when Vida Ofosu and Christian Opare appeared before the Court, whereupon the court ordered them to vacate the house in dispute by 12th April 2000 or in default the Court would order that they should be ejected forcibly, there was no sitting of the Court till 6th December 2000. On that day the Plaintiff and her counsel were present: the Defendant and his Counsel were absent. The suit was adjourned to 14th December 2000 for hearing. And hearing notice was ordered to be served on the Defendant.

On the adjourned date that is 14th December 2000 the Learned trial Judge, without first satisfying himself from either the court Registrar, or from his court bailiff, as to whether due notice had, in fact, been given to the Defendant or to his Counsel, proceeded to allow the Plaintiff to open her case and lead evidence. After tendering exhibits "A" and "B" in support of her case the suit was adjourned to 21/12/2000, for continuation. On the adjourned date that is 21/12/2000 the suit was further adjourned to 4th January 2001 for further hearing.

On 4th January 2001, the Plaintiff and her Counsel were present. The Defendant and his Counsel were absent, but the examination-in-chief of the plaintiff continued. After the end of her case the hearing was adjourned to 8th January 2001 for further hearing. On this day, in absence of the Defendant, the Plaintiff called three witnesses to close her case. It is significant to note that no hearing notices were served on the Defendant after 14/12/2000.

I am of the view that having already ordered, on the 6th of December 2000, that hearing notice was to be served on the Defendant, if the Learned trial judge had been prudent enough to pause for necessary judicial thought, not only would he have discovered that the defendant had been short served for the trial; but he would have readily appreciated the important fact that since whatever order that resulted from such short service affected the legal rights of the defendant over the parcel of land, the title to, and ownership of which he was stoutly contesting, It was only fair and just that, as a serious contestant or contender for title, the Defendant was properly notified of the pendency of the trial. The Defendant would then have been afforded an adequate enough opportunity to prepare his defence and search for his witnesses or documents, where necessary. I am satisfied therefore, that in all the circumstances of the matter, while the Learned trial Judge on the one hand violated the audi alteram partem rule — the indispensable injunction for the correct administration of justice, he was palpably careless of his duty at all times and in all cases, to hold the scales of justice at equal balance. In the light of the above, this ground of appeal succeeds.

The next ground of appeal read:—

"That the Learned trial judge erred in failing to order service of fresh hearing on the defendant".

In arguing this ground Learned Counsel for the Defendants submitted that in so far as on 14th December 2000 the Plaintiff did not close her case but had to seek subsequent adjournments in order to call other witnesses, the Learned trial judge erred in not ordering that hearing notices of the adjourned dates be served on the Defendant.

In his response to this submission Learned Counsel for the Plaintiff contended that the Defendant was served with hearing notice to appear on 14th December 2000 abut he failed to come to court when the hearing started; if he was interested in the suit he would have checked from the Registry of the Court what transpired in the court on 14th December 2000, and furthermore the next hearing date. Counsel submitted that the Plaintiff was not duty bound to serve the Defendant, with further hearing notices, since it was obvious that the Defendant was not interested in the suit since he had a counter-claim to pursue.

On the issue of the Defendant's counter-claim, the records show that on 5th April 2000, the Defendant filed Notice of Amendment for leave of the Honourable Court to amend his pleadings by adding a counter-claim. The notice was fixed for hearing on 13th April 2000. The Court did not sit on this day. And there is no indication in the proceedings to show that the Notice of Amendment for leave was ever taken before the hearing of the matter on 14th December 2000.

On the issue of service of hearing notice to the other party, I am unable to agree with Counsel for the Plaintiff that the Plaintiff was not duty bound to serve the Defendant with further hearing notices. Indeed, Order 36 rule requires notice to be served on the other party before trial, or otherwise under certain conditions. Since the Defendant was absent from Court on 14th December 2000, the most prudent step, in my view, was for the learned trial judge to have ordered further hearing notices on the Defendant in compliance with Order 36 rule 9, which is a mandatory provision. This ground of appeal also succeeds.

The last ground of appeal by the Learned Counsel for the Defendant read:—

"That the Learned judge erred in failing to call the bailiff, who allegedly served the Defendant with a copy of the hearing notice to give evidence and be cross-examined by the Defendants' Counsel in order to ascertain whether he actually did serve the Defendant with a hearing notice at Kumasi barely 24 hours before the hearing of the case."

In arguing this ground it was the submission of Learned Counsel for the Defendant that inasmuch as there was complete doubt as to whether, in fact, and indeed, the Defendant was served with any hearing notice or not, the Learned trial judge ought to have invited the Bailiff who allegedly served the Defendant in order for this doubt to be erased before giving his ruling.

Learned Counsel finally urged upon the Court the dictum of Bamwell.

L.J. in the leading case of COLLINS v VESTRY OF PADDINGTON (1878-80) 5 QBD 379 where he said as follows:—

"if the mistakes, error or carelessness of the applicant has been real and unintentional and no damage has been done to the other side that could not be repaired by payment of costs or otherwise, the application should be granted."

Counsel submitted that given the facts of this case, it is clear that there was no mistake on the part of the Appellant but rather it was the trial court which breached the mandatory statutory provision notwithstanding clear evidence of short service on the part of the Plaintiff.

Learned Counsel for the Plaintiff's response to this submission was that the trial court was not duty bound to call the bailiff from Kumasi to confirm whether or not the Defendant was served with the hearing notice. According to counsel all the processes we served on the Defendant in Kumasi, and the Bailiff, after service, filed a sworn affidavit of service. Counsel finally submitted that it was obvious that the Defendant was not being truthful in his denial of the service of the hearing Notice on him and that the trial judge had even stated so in his ruling.

In all this one has to refer to the affidavit in support and in opposition to the Motion on Notice for Stay of Execution and to set aside the Default judgment which was heard on 21st February 2002. Here was a situation where the Defendant averred in paragraph three thus:—

"That I was never at any point in time served with any hearing notice to appear before this Honourable court on the date of hearing of this matter."

The Plaintiff on the other hand averred in paragraphs two, three and four as follows:—

2 "That the Defendant was served with a Hearing Notice and other processes in Kumasi."

3 "That it is never true that the Defendant was not served with a Hearing Notice"

4 "That since the Defendant was served with a Hearing Notice it was the duty of the Defendant to bring same to the attention of his Counsel."

It is my view that with these two opposing averments before him a complete doubt had been laid bare as to whether in fact and indeed the Defendant was served with any Hearing Notice. And the answer was for the Court to have invited the Bailiff who allegedly served the Defendant with the hearing notice to be put in the witnesses box to give evidence and be cross-examined by Defence Counsel in order to ascertain whether he actually served the Defendant at all. If this exercise had been carried out this doubt would have been erased in his mind before giving his ruling.

It seems to me that the Learned trial judge's indignation had been aroused (and this is not improbable) by what he considered to be a deliberate flouting, by Defendant, of his authority, and he was, therefore not prepared for any adjournment then. In these circumstances, the least he could and, indeed, should, have done as to have quickly referred to Order 36 rule 9 and then discerned that the situation before him was such as called for the award of reasonable costs against the defendant. In any case what damage could the Plaintiff have suffered if the default judgment had been set aside? There is none that I can fathom. This last ground of appeal also succeeds.

In all the circumstances of this case, I am satisfied that it was wrong for the Learned Circuit Judge to have barred the Defendant from legally pursuing his rights under the law. Failure to serve the Defendant properly before the hearing on 14th December 2002 in accordance with the provisions of Order 36 rule 9 of the High Court (Civil Procedure) Rules L.N No. 140 A 1954 rendered the subsequent proceedings null and void. For a step which is not sanctioned or warranted by the rules is wholly void and may be set aside. No consideration of time arises. The Circuit Court, Tema, judgment of 15th April must be set aside. (see MACFOY v UNITED AFRICA CO. LTD. (1961) 3 ALL ER 1169. PC: AMOABIMAA VRS BADU (1957) 2 WALR 214, AMOABIMAA WACA AND MOSI V BAGYINA (1963) 1 GLR 337, S.C.

It is for these reasons then, that I would and do allow this appeal. I order that the judgment of the Circuit Court, Tema, dated 15th April 2002 be set aside, and remit the whole of this matter to the Circuit Court, Tema, for a de-novo hearing upon its true merits, so that proper justice is manifestly seen to be done to both the Defendant and the Plaintiff by a Circuit Judge, different from the one who originally heard this case.

(SGD)

ANIM, J.A.

JUSTICE OF APPEAL

I agree.

OMARI SASU, J.A.

I also agree

KUSI-APPOUH (MRS), J.