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Practice
and Procedure - Service
out of the jurisdiction -
.Setting aside judgment -
Retrial - the High Court
contained in High Court (Civil
Procedure) Rules, CI 47. -
Order 14 - Whether or not
defendant was served with notice
of the adjournment - Whether or
not defendant’s answer was filed
out of time
HEADNOTES
.
The
Plaintiff/Respondent/Appellant
(to whom I shall for convenience
hereinafter describe as the
Plaintiff) took out the writ of
summons herein against the
Defendant/ Appellant/Respondent
(hereinafter conveniently
referred to as the Defendant)
seeking the refund of a
specified sum of money
denominated in the United States
dollars. As the defendant was
ordinarily resident outside the
jurisdiction, the plaintiff
applied and obtained leave to
issue and have the writ served
outside the jurisdiction. The
defendant subsequently entered
appearance to the writ and
following his submission to the
jurisdiction, the plaintiff
applied for summary judgment
against him on the claim. The
defendant’s solicitors filed an
affidavit in answer to the
application under order 14 of
the rules of the High Court
contained in High Court (Civil
Procedure) Rules, CI 47.
Following the entry of the
summary judgment, the defendant
applied to have the judgment set
aside the Court of Appeal, the
defendant’s appeal was allowed
and an order of retrial ordered
HELD
The learned trial judge
came to the right conclusion on
the application for summary
judgment Having been filed out
of time, the court lacked and or
had no jurisdiction to determine
the merits of the said appeal
and consequently the processes
and all steps based thereon
including the judgment on appeal
to us are of no effect and are
hereby set aside. The result is
that the ground of appeal
touching and concerning the time
limit of three months within
which the appeal ought to have
been filed to the Court of
Appeal succeeds and the judgment
of the High Court is restored
subject to the amount ordered
there under to be paid by the
respondent being the cedi
equivalent of the claim which
was denominated in the United
States dollar
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, CI 47.
Court of Appeal Rules, CI 19.
CASES REFERRED TO IN JUDGMENT
Morkor v Kuma [1998-99] SCGLR
620,
Tindana (No 2) v Chief of
Defence Staff and Another [2011]
2 SCGLR, 732.
Dsane v Hagan [1961] 3 All ER
380
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
KWAME BOAFO AKUFFO ESQ. FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
BOAKYE AGYEN ESQ. WITH HIM MRS.
REBECCA BOAKYE FOR THE
DEFENDANT/
/APPELLANT/RESPONDENT.
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JUDGMENT
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GBADEGBE
JSC:
This appeal arises from the
decision of the Court of Appeal
dated November 19, 2009 by which
the summary judgment obtained in
the trial High Court was set
aside. The circumstances in
which our jurisdiction has been
invoked may be briefly stated as
follows. The
Plaintiff/Respondent/Appellant
(to whom I shall for convenience
hereinafter describe as the
Plaintiff) took out the writ of
summons herein against the
Defendant/Appellant/Respondent
(hereinafter conveniently
referred to as the Defendant)
seeking the refund of a
specified sum of money
denominated in the United States
dollars. As the defendant was
ordinarily resident outside the
jurisdiction, the plaintiff
applied and obtained leave to
issue and have the writ served
outside the jurisdiction. The
defendant subsequently entered
appearance to the writ and
following his submission to the
jurisdiction, the plaintiff
applied for summary judgment
against him on the claim. The
defendant’s solicitors filed an
affidavit in answer to the
application under order 14 of
the rules of the High Court
contained in High Court (Civil
Procedure) Rules, CI 47. The
hearing appears from the record
of appeal to have suffered some
adjournments from the return
date of April 15, 2005 to May
06, 2005 when it was determined.
Following the entry of the
summary judgment, the defendant
applied to have the judgment set
aside under Order 14 rule 9 of
the High Court (Civil Procedure
) Rules, LN 140A on the ground
that he was not present at the
hearing. The gravamen of his
complaint at the hearing of the
application to set aside the
judgment was that he was not
served with notice of the
adjournment of the hearing of
the application to May 06, 2005
when the court proceeded to hear
the application and yielded to
the prayer of the plaintiff. The
said application was dismissed
by the trial court and an appeal
lodged there from to the Court
of Appeal. In the Court of
Appeal, the defendant’s appeal
was allowed and an order of
retrial ordered. The plaintiff
has appealed to us and by the
processes initiating these
proceedings seek a reversal of
the judgment of the Court of
Appeal.
Before us, the plaintiff has
contended among other grounds of
objection contained in his
notice of appeal that the appeal
from the High Court to the Court
of Appeal was improperly
constituted as it was filed out
of time. Although the notice of
appeal did not specifically
refer to the applicable rule, in
the written briefs submitted by
the parties, the arguments were
submitted in relation to Rule 9
of the Court of Appeal Rules, CI
19.There is no dispute that
although the decision on appeal
from the trial court to the
Court of Appeal was delivered on
May 6, 2005, the appeal there
from was filed on May 2, 2006.
The defendant’s answer to the
issue of the appeal to the Court
of Appeal having been filed out
of time is that by virtue of the
decision in the case of
Morkor v Kuma [1998-99]
SCGLR 620, the right to appeal
from the summary judgment first
arose in his favour only after
the court had refused to set
aside the summary judgment on
February 3, 2006. The substance
of the said answer is that by
the decision of the Supreme
Court in the Morkor case (supra)
the appeal was filed within
time. It appears to us that
this procedural point touches
the question of our jurisdiction
and so it is important that we
consider it first before
proceeding to a merit
consideration of the other
grounds of objection contained
in the notice of appeal. See:
Tindana (No 2) v Chief of
Defence Staff and Another
[2011] 2 SCGLR, 732.
The first question which arises
from the said jurisdictional
point is whether the decision in
the Morkor case (supra) applies
to the circumstances of this
appeal. A careful consideration
of the Morkor case (supra)
reveals as appears from holding
2 of the judgment is that the
judgment must have been granted
for a sum greater than what was
claimed in the action. The
judgment, it seems to me must
not only be entered in the
absence of a party within the
scope of Order 9 rule 14 of the
High Court (Civil Procedure)
Rules, CI 47 but “for an
amount greater than what was in
fact due, the summary judgment
cannot be treated as final once
the applicant had filed an
application to set aside same”.
In the instant case, the
judgment granted by the trial
court is not greater than what
was claimed in the action and
accordingly the decision is
inapplicable to the issues
before us.
Then there is the question
regarding Order 14 rule 9 of the
High Court Civil Procedure)
Rules, CI 47 by which a summary
judgment entered in the absence
of a party may be set aside.
The critical issue to be decided
turning on this provision is
what constitutes absence within
the meaning of Order 14 rule 9.
I commence the consideration of
this question from the
obligation placed on a
respondent to an application for
summary judgment as provided for
in Order 14 rule 3 in the
following words:
“A defendant may show
cause against an application by
affidavit or otherwise”.
In my opinion, applications for
summary judgment are intended to
cater for situations in which a
defendant has no defence to the
action as emphasized by the
manner in which such a party may
show cause as provided for in
Order 14 rule 3. Accordingly,
the defendant or any respondent
to an application who is served
and files an answer to the
application by affidavit or
otherwise has placed before the
trial judge the necessary
materials to enable the court
determine if the application may
be granted. Once such a process
is filed as indeed, was done by
counsel for the respondent in
the matter herein, the court is
properly seised of the
application in which case the
judge who hears the application
has to decide whether on the
processes before him, the
defendant has satisfied him that
there is any question or dispute
which ought to be tried or for
some other reason there ought to
be a trial. It repays to refer
to Order 14 rule 5 which
regulates the exercise of power
by the trial judge at the
hearing of the application and
in particular by sub-rule (a) to
do the following:
“Give such judgment for the
plaintiff against the defendant
on the relevant claim or part of
the claim as may be just having
regard to the nature of the
remedy or relief sought, unless
the defendant satisfies the
Court with respect to that claim
or part of it 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.”
A defendant who having been
served with notice of an
application to sign summary
judgment files an affidavit in
answer to the application as the
facts in this appeal portray but
does not attend the hearing of
the application cannot say that
the judgment rendered by the
court is on account of his
absence. The correct position
discernible from the settled
practice in applications for
summary judgment is that the
decision in such a case was
reached by the court after a
careful consideration of the
application and the answer
thereto and the reasonable
inference is that the defendant
did not satisfy the court that
that he has a defence to the
action or for some other reason
the matter ought to proceed to
trial. The defendant’s
obligation to show cause must
appear from the ‘affidavit or
otherwise’. It is apparent from
the rules that the means by
which the defendant’s burden to
show cause is by a process filed
in answer to the application and
that the defendant’s absence
within the context of Order 14
rule 9 must be interpreted to
mean failure to provide an
‘affidavit’ or other document in
answer to the application. Where
a defendant, for example intends
to raise a point regarding the
competency of the application,
he is required as a matter of
practice discernible from the
reading of Order 14 as a whole
document to indicate same in the
affidavit or other process by
which he seeks to show cause
against the application for
summary judgment. In my view,
the decision in the case of
Dsane v Hagan [1961] 3 All
ER 380, which is of persuasive
effect provides us with an
analogous situation that may be
applied to this appeal. In the
said case, although the decision
turned on the meaning of
“judgment by default”, it
presents us with similar
considerations. At page 383, the
Buckley J made the following
speech:
“ In my judgment, the words
’judgment by default” in this
rule indicate a judgment
obtained by a plaintiff in
reliance on some default on the
Part of the defendant in respect
of something which he is
directed to do by the rules. A
judgment obtained in default of
appearance under R.S.C., Ord.13
would, I think clearly be such a
judgment. To an application
under Ord.14A, however, it is
irrelevant whether the defendant
has entered appearance or not.
If the action is for the type of
relief indicated in the rule and
if the plaintiff swears the
necessary affidavit verifying
the cause of action and stating
that he believes that there is
no defence to the action, the
court is concerned to see
whether the defendant avails
himself of the opportunity to
show cause why he should be
permitted to defend the action.”
Unfortunately for the
respondent, the record of appeal
does not demonstrate in the
slightest degree that he has any
defence to the claim or that
there was some other reason
which in the interest of justice
required the action to proceed
to trial. In applications under
Order 14 rule 9, it is not
enough for the applicant to show
that he was not present at the
hearing but go further to show
that he has a defence to the
action or as is peculiar to
Order 14 applications, there is
some reason for which the action
ought to proceed to trial. In my
opinion the practice of the
court in requiring parties who
seek to set aside default
judgments to show a defence on
the merits equally applies to
applications mounted under Order
14 rule 9 of CI 47.
Before ending this short
delivery, it is observed that a
defendant who enters an
appearance to an action through
a lawyer represents to the other
parties to the action and
indeed, the court that the
person so appointed has his full
authority to act in the matter.
That authority includes filing
processes in response to all
steps required to be taken in
the matter. In the
circumstances, it is difficult
to comprehend how the lawyer for
the respondent could have filed
an affidavit in response to the
application in the manner
disclosed from the record of
appeal. It is unacceptable for a
lawyer acting in a matter to
depose to an affidavit that
because his client is outside
the jurisdiction, he does not
have instructions to file an
answer to a simple application
under Order 14. An appearance
entered to an action is good for
all purposes unless by leave of
the court it is withdrawn or a
new lawyer appointed in the
stead of the original person.
Accordingly, the learned trial
judge was within his powers when
he exercised his jurisdiction by
considering the affidavit filed
by the defendant’s lawyer before
reaching his decision on the
application. In my view, based
on the said processes, the
learned trial judge came to the
right conclusion on the
application for summary
judgment.
For these reasons, it follows
that the rule in Morkor v
Kuma (supra) on which the
respondent has placed great
reliance to answer the objection
raised to the competency of the
appeal before the Court of
Appeal is not applicable; the
result being that the appeal to
the intermediate appellate court
was filed nearly a year after it
was granted is out of time.
See: Tindana (No 1) v Chief
of Defence Staff [2011], 2
SCGLR 724.
Having been filed out of time,
the court lacked and or had no
jurisdiction to determine the
merits of the said appeal and
consequently the processes and
all steps based thereon
including the judgment on appeal
to us are of no effect and are
hereby set aside. The result is
that the ground of appeal
touching and concerning the time
limit of three months within
which the appeal ought to have
been filed to the Court of
Appeal succeeds and the judgment
of the High Court is restored
subject to the amount ordered
there under to be paid by the
respondent being the cedi
equivalent of the claim which
was denominated in the United
States dollar.
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M.
DOTSE
JUSTICE
OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
(SGD)
G. PWAMANG.
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWAME BOAFO AKUFFO ESQ. FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
BOAKYE AGYEN ESQ. WITH HIM MRS.
REBECCA BOAKYE FOR THE
DEFENDANT/
/APPELLANT/RESPONDENT.
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