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JUDGMENT
ASARE KORANG, J.A.:
8th October, 1996, the
Plaintiff/Respondent (hereinafter referred to as the
Respondent) filed a writ of summons in the High Court
claiming the following reliefs against the
Defendants/Appellants hereinafter referred to as the
appellants)*
"1. An Order that the
distribution of the estate of her deceased father by the
administrator/administratrices be done in accordance
with the existing law on intestate succession i.e. PNDCL
111.
2. An order for
accounts for rents from storerooms and space surrounding
her father's South Odorkor house.
3. An order for
accounts for the proceeds from the sale of a Car and an
uncompleted house at Bubuashie belonging to her late
father.
4. An order for the
cancellation of any title purported to have been granted
to the purchaser(s) by the
administrator/administratrices of the uncompleted house
mentioned in (3) above.
5. An order on the 3rd,
4th and 5th Defendants/Appellants to remove the
storerooms they constructed, in front of Plaintiff's
apartment at Accra New Town".
The first four
appellants are the administrators and administratrices
of the estate of the late Moses Tetteh Afutu Nartey who
was a practising barrister in Accra.
The 1st and 2nd
Appellants are also the nephew and sister respectively
of the deceased Moses Tetteh Afutu Nartey while the 3rd,
4th and 5th Appellants and the respondent are the
children of the deceased. The respondent was the
daughter of the deceased by his second wife.
After the respondent
had sued out her writ of summons on 8th October, 1996
the appellants filed a belated Statement of Defence on
26th May, 1997.
This statement of
Defence was not on the docket when default judgment was
entered against the appellants on 24th July, 1997.
The default judgment
was vacated on 20th July, 1998 when the court drew the
attention of the appellant's Solicitor to the fact that
the statement of Defence filed by the appellants did not
disclose any defence at all. Prior to the vacation of
the default judgment, the solicitor for the appellants
had filed a motion on notice for leave to amend the
appellants Statement of Defence.
There is nothing in the
record to show that the motion for leave to amend was
moved by the appellants but notwithstanding that
omission, the respondent's solicitor on 12th January,
1999, filed a Reply to the proposed amended Statement of
Defence together with a Summons for Directions. The
court below took the Summons for Directions on 8th
February, 1999. Subsequently, the appellants as
Defendants filed what was labelled as "DEFENDANTS REPLY
TO AMENDED STATEMENT OF DEFENCE FILED BY PLAINTIFF ON
12-1-99",
With respect it makes
no sense why the appellants as Defendants purported to
file a Reply to an amended Statement of Defence filed by
plaintiff since the rules of the High Court surely
require a plaintiff to file a Statement of Claim and
Reply to a Statement of Defence while the parameters of
a defendants' pleading are confined to a Statement of
Defence and a Counterclaim and a set-off.
How the plaintiff could
be said to have filed an amended Statement of Defence
and the Defendants a Reply thereto boggles the mind a
little.
In spite of this error,
the record shows that in the court below, the appellants
herein filed an application to amend their statement of
Defence. Their application was granted but the
appellants took no steps to amend their statement of
Defence pursuant to the leave granted them.
Hearing of the suit
commenced on 10th February, 2000 and the respondent as
plaintiff in the court below closed her case on 14th
November, 2000. On the said date, just as the appellants
had about opened their defence, the court noticed that
there was no amended Statement of Defence at all on file
and the learned judge in the court below adjourned at
the instance of counsel to enable an amended Statement
of Defence to be filed out of time.
No further proceedings
were taken in the case for almost one year and the
appellants failed or neglected to file an amended
Statement of Defence in line with the dispensation
granted them by the court.
On 22nd October, 2001,
counsel for the respondent moved the court for judgment
to be entered against the appellants in default of
pleadings, the basis of the application being that the
failure of the appellants to file their pleadings a year
after leave was granted them showed that they had no
defence to the action.
In response to this
application, counsel for the appellants, Mr. Quaye,
stated as follows:
"Mr. Quaye: I never
obtained leave to amend the defence. So the earlier
defence I filed prevails."
This reply by counsel
for the appellants falls flat in the face of the order
made by the trial court on 14th November, 2000 that the
case was being adjourned at his instance to enable him
file an amended Statement of Defence out of time
whereupon costs were awarded against him personally for
gross negligence.
On 5th November, 2001,
the trial court gave judgment in favour of the
respondent in default of pleadings and for good measure
the trial judge added that she was entering judgment on
the evidence so far led before her by the respondent.
On 21st November, 2001,
the trial judge examined and reviewed the evidence given
before her and entered judgment for the respondent on
the evidence adduced by her.
Against the judgment,
the appellants have appealed to this court, the original
ground of appeal being that the judgment was against the
weight of evidence.
There were additional
grounds of appeal filed by the appellants, wherein they
repeated the original ground of appeal, together with
other grounds which, with due respect, we find rather
unintelligible as they are based on matters of fact
related by the respondent in her evidence before the
trial court.
Perhaps the most potent
ground of appeal in the additional grounds is that which
reads:
"BREACH OF THE AUDI
ALTERAM PARTEM RULE OF NATURAL JUSTICE
The trial court
breached the Audi Alteram Partem rule of natural justice
when it heard the evidence of the Plaintiff alone when
there was no previous interlocutory judgment given and
when it was also not assessing damages.”
Counsel for the
appellants acknowledged that the court notes show that
the appellants did not come up with an amended Statement
of Defence having been given leave by the trial Court to
file one and so there was no Statement of Defence. But
counsel raised the question whether it was proper for
the respondent to bring a motion for judgment in default
of pleadings under Order 27 rule 11 of the High Court
(Civil Procedure) Rules, 1954 when the court had ruled
that the appellants Statement of Defence filed on May
26, 1997 disclosed no reasonable defence.
Counsel argued that
since the respondent admitted that she was served with
the Appellants Statement of Defence dated May 26, 1997,
there was an error on the part of the Court to give
judgment in favour of the respondent under Order 27 rule
11, the appropriate rule the Court should have invoked
being Order 25 rule 4.
Order 27 rule 11
provides:
"In all other actions
than those in the preceding rules of this order
mentioned, and those to which rule 19 of this order
applies, if the Defendant makes default in delivering a
defence, the plaintiff may set down the action on motion
for judgment, and such judgment shall be given as upon
the statement of claim the court or a Judge shall
consider the Plaintiff to be entitled.”
Order 25 rule 4 also
reads:
"The Court or a Judge
may order any pleading to be struck out, on the ground
that it discloses no reasonable cause of action or
answer, and in any such case or in case of the action or
defence being shown by the pleadings to be frivolous or
vexatious, the Court or a Judge may order the action to
be stayed or dismissed, or judgment to be entered
accordingly as may be just."
It appears that under
Order 27 rule 11, the power of the court to enter
judgment is exercisable only where there is a default on
the part of the defendant in filing and serving a
statement of Defence and the plaintiff applies to the
court for judgment by motion.
The rule applies to
actions other than those for liquidated demand,
unliquidated damages, detention of goods, recovery of
land or any combination of these causes of action.
The rule also applies
only where the defendant being required to serve a
defence to a statement of claim makes default and the
default in serving a statement of defence cannot be
followed by judgment without an order, for the plaintiff
must apply for judgment by motion.
Under Order 25 rule 4
on the other hand, the Court is empowered by summary
means, that is without a trial in the normal way, to
stay or dismiss an action or enter judgment against the
defendant where the pleading discloses no reasonable
cause of action or defence or where the action or
defence is shown to be frivolous or vexatious.
In application under
Order 25 rule 4 may be made by motion or summons. Apart
from the rule, the court has an inherent jurisdiction to
stay or dismiss actions, and to strike out pleadings
which are vexatious or in any way on abuse of its
process.
The question,
therefore, is whether in this case, the trial court was
proceeding under Order 25 rule 4 or under its inherent
jurisdiction when it declared that the statement of
Defence filed by the appellants on May 26, 1997 did not
disclose a valid defence.
When the court ruled
that the defence of the appellants constituted no
defence at all, there was no application before it under
Order 25 rule 4.
In OKOFOH ESTATES LTD
vrs. MODERN SIGNS LTD & ANO (1996-97) SCGLR. 224 at
p.238, the Supreme Court held that under Order 25 rule 4
only the pleadings may be considered by the court while
in proceedings under the inherent jurisdiction the court
may take into account affidavits and extrinsic evidence
and the two cannot be considered to be interchangeable
or simultaneous unless they are specifically applied
for.
It cannot also be said
that the inherent jurisdiction of the trial court in
this case was invoked when it declared that the defence
filed by the appellants was no reasonable answer to the
respondent’s statement of claim. At any rate, it is
clear from the record of proceedings in this case that
initially judgment in default of defence was entered
against the appellants which was later set aside, to
enable them file a statement of Defence and contest the
action on its merits.
The trial court appears
to have considerably indulged the appellants even after
they filed and served a statement of Defence which the
court found not to be valid.
The appellants
thereafter filed a motion for leave to amend their
Statement of Defence and went to sleep for almost one
whole year. They even failed to wake up from their
slumber when the trial court purported to take evidence
from the respondent on her claim and from the 3rd
appellant on the basis that the pleadings had been
closed and the issues for trial settled. While the 3rd
appellant was testifying in the case, counsel for the
appellants sought leave to file an amended statement of
Defence out of time.
The court granted the
request of counsel and yet the proposed amended
statement of Defence was never filed even though there
were no time limit fixed for the amendment to be filed.
The appellants were
definitely indolent in failing to place before the court
an amended Statement of Defence.
The appellants never
woke up from their sleep. It is active litigation that
is protected by the law and not the absence of it.
See ATTORNEY GENERAL
vrs. TIMES NEWSPAPERS LTD. (1973) Q.B.D. 710; (1973) 1
All E.R. 815 at p.852. C.A.
The appellants rendered
the proceedings in the present case dormant in the court
below and it does not lie in their mouths to say that
the court should have tried the matter before it under
Order 25 rule 4 and not under Order 27 rule 11.
The law is that the
court will generally give leave to amend a defect in
pleading rather than give judgment in ignorance of facts
which ought to be known before rights are definitely
decided.
See STEEDS vrs. STEEDS
(1889) 22 Q.B.D. 537 at p.542: REID vrs. HOOLEY (1897)
13 T.L.R. 389; EDWARDS vrs. PHEUMATIC TYRE CO. (1900) 16
T.L.R. 309. THORNHILL vrs. WEEKS (1913) 1 Ch.438.
The trial court
therefore was perfectly within its rights to have given
leave to the appellants to amend their Statement of
Defence and to have entered judgment against them under
Order 27 rule 11 when they failed to amend pursuant to
leave.
However it is
interesting to observe that there were two judgments
delivered by the trial court in this case.
The first was judgment
in default of pleadings, the second being a judgment
based on the evidence led by the respondent and the 3rd
appellant.
Was it open to the
trial court to proceed to hear the case by taking
evidence when the pleadings were incomplete - when the
appellants had been granted leave to amend their
statement of Defence and had not done so for which
reason the pleadings had not been closed?
The procedure adopted
by the trial court in taking Summons for Directions and
then hearing and recording evidence on the reliefs
claimed by the respondents when no Statement of Defence
had been filed by the appellants was most irregular
especially because after evidence had been led, the
Court went ahead and entered judgment against the
appellants in default of defence.
The trial court did not
stop there because after pronouncing judgment in default
of defence, it gave final judgment on the basis of the
evidence previously led before it. This amounted to
placing the cart before the horse, as a manner of
speaking, for the trial court ought first to have
entered default judgment against the appellants before
admitting evidence on the respondent's claim.
Not having fixed a
specific time frame within which the appellants could
file an amended Statement of Defence, we think the
appellants are right in arguing that they were not given
a hearing in this matter before judgment was entered
against them.
We would therefore
allow the appeal and set aside the judgment of the trial
court.
We are of the view that
it would be appropriate to remit this case to the court
below to be tried de novo based on pleadings properly
and timeously filed by the parties herein and we so
order.
We make no order as to
costs.
A. ASARE-KORANG
JUSTICE OF APPEAL
TWUMASI, J.A.:
I agree.
P. K. TWUMASI
JUSTICE OF APPEAL
ANSAH, J.A.:
I also agree.
J. ANSAH
JUSTICE OF APPEAL
COUNSEL
G. K. QUAYE, ESQ., FOR
APPELLANTS
C. OSAFO-OSEI FOR
RESPONDENT
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