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GBADEGBE JSC:
:On June 29, 2012, the
plaintiffs-respondents-respondents
took out the writ of summons
herein against the
appellant-appellant-appellant
(appellant) claiming among
certain declaratory reliefs and
one other relief for the
recovery of what was described
as a liquidated sum of money. We
shall in this delivery refer
only to three such reliefs - two
declaratory reliefs and the
monetary claim. The said reliefs
which are numbered as (a), (b),
and (d) are as follows:
(A) A declaration that
the deliberate and or
intentional act of the 1st
defendant, 2nd
defendant and 3rd
defendants permitting and or
indulging the 4th
defendant to operate
commercially as a bank concern
in the Greater Accra Region,
Ashanti Region and Brong Ahafo
Region respectively for over 2
(two) years without the
requisite Bank of Ghana banking
license was not only negligent
and or unconscionable but
unconstitutional, fraudulent and
legally impermissible and as
result have caused substantial
miscarriage of justice and civil
injuries to the plaintiffs.
(B) A declaration that by
the testimony of the
Representative of the Governor
of the Bank of Ghana and Head
of Banking Supervision ( i.e. 2nd
and 3rd defendants)
herein on oath in Civil Suit No
RPC 102/ 2012 admitting and
confirming that that the Bank of
Ghana was aware that the 4th
defendant was operating and also
failing to warn the General
Public from dealing with the 4th
defendant who was operating
illegally and fraudulently in
foreign transactions/ exchange
amounted to a breach of article
183.2(d) of the 1992
Constitution of Ghana, the Bank
of Ghana Act, 2012 ( Act 612)
and Banking Act, 2004 ( Act
673).
(D) Recovery of
liquidated cash sum of GH 4,
977, 059.00 which the Plaintiff
herein in Sunyani and Techiman
respectively deposited with the
4th defendant as a
bank concern on grounds of the 1st,
2nd, and 3rd
defendants admission and
contribution to the 4th
defendant’s commission of fraud
against the Plaintiff herein.”
Following the service of the
writ on the defendants, the
plaintiffs applied for judgment
in default of appearance against
them on July 16, 2012. The
minutes of the court’s
proceedings for that day which
appears at page 42 of the record
of appeal reveals that after
learned counsel for the
plaintiffs had moved the
application the Court delivered
itself as follows:
.
“By Court. Motion is granted as
it has merits. Plaintiffs are at
liberty to enter final judgment
for relief (d) and interlocutory
judgment for the other reliefs.
Cost calculated at 10% of the
amount stated in relief (d) is
allowed for plaintiffs.”
The appellant entered appearance
to the writ on July 17, 2012 and
filed an application for
transfer of the suit to Accra
but unknown to them judgment had
been recovered against them a
day earlier. When the defendants
discovered the recovery of
judgment against them on July
16, 2012, they applied for leave
to enter appearance out of time
on July 18 and also applied for
stay of execution of the
judgment that was obtained two
days earlier in default of
appearance. The two applications
were refused by the High Court,
Kumasi and appeal therefrom to
the Court of Appeal holden at
Kumasi failed as the learned
justices by a judgment that
appears at page 390 of the
record of appeal herein struck
out the 2nd and 3rd
defendants as unnecessary
parties and dismissed the appeal
for reasons that were provided
in a case numbered as
H1/10/14(J4/ 52/ 2014). It
appears that the issues involved
in both cases were similar as
the plaintiffs in that suit had
deposited various sums of money
with Onward Investment which
they were seeking to retrieve.
By the dismissal of the appeal,
the learned justices of the
Court of Appeal had reached the
decision that the discretion
which was exercised by the
learned trial judge was proper.
In the circumstances, the
question for our decision is
whether in reaching their
decision the learned justices
reached a reasonable conclusion
on the processes before them.
We have carefully examined the
processes before as on which the
decision on appeal to us is
based and have reached the
conclusion that the application
of the appellant disclosed
points of law that provided a
reasonable defence to the action
against it. In the said
premises, according to the
settled opinion of the court
which is discernible from a
collection of cases, the learned
justices ought to have granted
the appellant leave to enter
appearance out of time.
The record of appeal also
reveals that the appellant, who
was out of time to enter
appearance to the action, had
filed its application for leave
only two days after the default
judgment was obtained against
it. Additionally, so the record
of appeal portrays, it has
demonstrated by its conduct a
sufficient desire to contest the
action herein. In the said
circumstances, we think that we
cannot drive the appellant from
the judgment seat. The
authorities direct us in the
situation with which we are
confronted to grant leave to the
appellant to enter appearance
out of time so that the action
herein which from the written
briefs submitted to us by the
parties raise interesting and
important points of law that are
not limited only to the question
of liability of the defendants
for the acts of a company that
among others operated unlawfully
and, fraudulently and in breach
of the fiduciary relation
between them and their customers
may be determined on the
merits. In view of the
conclusion reached in this
matter, we are of the view that
it is not necessary for us to
consider in detail the points of
law which arise in the appeal
herein as to do so will have the
effect of prejudicing a fair
consideration of the said issues
in the substantive matter.
There is also a question of
procedure of some importance
which is disclosed by the appeal
herein that unfortunately was
not adverted to by the learned
justices of the Court of Appeal
whose function it was in the
nature of a re-hearing of the
application for leave which had
been refused by the trial court
to consider which is referred to
shortly. The proceedings of July
16, 2012 at which the default
judgment with which we are
concerned in these proceedings
was entered to which reference
has earlier on been made show
apparently that although the
plaintiffs right to the recovery
of the liquidated sum, which was
contained in a separate relief
numbered as (d), their right to
that relief was dependent upon
the declaratory reliefs which
were demanded from the court and
numbered as (a), (b), (c), (e)
and (f). It being so, we are of
the opinion that it was not
proper for the learned trial
judge to have entered the
default judgment in favor of the
plaintiffs on the same date. The
grant of the monetary judgment
before the consideration of the
declaratory reliefs on which it
turned may be likened to the
saying in the game of cricket as
placing the ball before the
wicket. As the recovery of the
amount claimed was dependent
upon the grant of the
declarations, it seems that its
grant was premature and had the
effect of putting something on
nothing, a situation which we
all know will result in a
crumble. At law, the said
declaratory reliefs which were
proceeded with by the learned
trial judge without
jurisdiction on July 16, 2012
are still pending and creates a
compelling reason that leaves us
with no discretion in the matter
but to annul the said award
in order to preserve the
procedural integrity of the
court.
In our view, the trial court
erred in considering the
applications to sign default
judgment at that stage as it is
precluded by Order 10 rule 6
from doing so. The said rule
provides:
“Where the plaintiff makes a
claim of a description not
mentioned in rules 1 to 4
against a defendant, and the
defendant fails to file
appearance, the plaintiff may
after the time limited for
appearance and upon filing an
affidavit of service of the writ
and statement of claim on the
defendant proceed with the
action as if the defendant had
filed a defence.”
A careful reading of Order 10
of the High Court (civil
Procedure) Rules, CI 47 reveals
that a declaratory relief does
not come within the reliefs
mentioned in rules 1 to 4 of the
order and this is justifiably so
because the settled practice of
the court is that a declaratory
relief cannot be obtained by a
motion in the cause but after
hearing the parties either by
way of legal argument or a full
scale trial. See: The
Republic v High Court Accra, Ex
Osafo [2011] 2 SCGLR. 966 It
is interesting to observe that
even though in the Osafo case
(supra), the declaratory
judgment was obtained in default
of a defence, the Supreme Court
refused to give its assent to
the said judgment on the ground
that it was a clear departure
from the settled practice of the
court and the mandatory
requirements of order 13 rule
6(1) and (2). The point being
made here is that as the
judgment ex-parte was not
authorised by the rules and had
the learned justices in their
corrective function adverted
their minds to this procedural
lapse, they will in all
probability have intervened to
grant the application of the
appellant.
The above reasons are sufficient
to enable us allow the appeal
herein. Accordingly the judgment
of the Court of Appeal is set
aside and in place thereof is
substituted an order granting
the appellant leave to enter
appearance out of time.
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
J. ANSAH
JUSTICE OF THE SUPREME
COURT
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
P.
BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
SAMUEL CODJOE ESQ. FOR THE
DEFENDANT/ APPELLANT/APPELLANT.
HANSEN K. KODUAH ESQ.
FOR THE PLAINTIFFS/RESPONDENTS/
RESPONDENTS.
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