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S. K. APPAH v. UNILEVER (GH.) LTD. [29/7/99], C.A. NO 89/98.

IN THE SUPERIOR COURT OF JUDICATURE

THE COURT OF APPEAL

ACCRA – GHANA.

___________________________________

Coram:  Forster,  J. A. (Presiding)

Essilfie-Bondzie, J.A.

Twumasi, J.A.

                                                                                                                                                    Civil Appeal No. 89/98

29th July, 1999.

S. K. APPAH

-     versus  -

UNILEVER (GHANA) LTD.

______________________________________________________________________________

 

JUDGMENT

TWUMASI, J.A.

This is an appeal against the ruling delivered by the High Court, Tamale on the 31st March, 1998. The facts show that on the 24th December, 1992 the respondents, Unilever (Ghana) Limited instituted legal proceedings against the appellant, a business agent and tenant to the respondents for the recovery of an amount ¢4,992,248.40 said to be arrears of rent and value of goods supplied by the respondents under what was described as a deedership Agreement between the parties. The appellant counter claimed for reliefs comprising damages for breach of the said agreement. At the close of pleadings, summons for directions was duly taken and a date was fixed for the hearing of the suit.

On the due date the case was further adjourned at the instance of the respondents. Several adjournments were subsequently made because of the persistent absence of counsel for the respondents.

The record shows that on the numerous occasions that the court yielded to adjournments, service of hearing notices had been effected either on the solicitors of the respondents or their representative at Tamale, to be precise, the Manager of Unilever (Ghana) Limited in that regional capital. Matters came to a head when the court apparently having exhausted all its indulgence in the conduct of the respondents, dismissed their claim on the 17th April 1996 leaving the counter-claim for hearing on the 23 May, 1996. An order was made that the Registrar caused a hearing notice to be served on the respondents. On the due date both counsel for the parties were absent and the case was adjourned sine die. The case was relisted for hearing on the 29th April, 1997. Notices were ordered to be served on the parties and their counsel to appear on the 26th May, 1997.

Counsel for the respondents then filed a motion for relistment of the case but never pursued it. Amidst this bizarre state of affairs afflicting the fate of the lawsuit, Counsel for the respondents wrote a letter dated 9th May, 1997 to the Deputy Registrar of the court copied to their Tamale representative informing them that he had withdrawn his services as from that date. This prompted the respondents’ representative by a letter dated 20th May 1997 to apply to the court for an adjournment while he arranged for the services of a new Counsel.

The court obliged and adjourned the hearing to the 18th June, 1997. The respondents had been served on 2nd June with the hearing notice but on the due date they failed to attend court and no new Counsel appeared on their behalf. The record further shows that the court adjourned the hearing to the following day, as the court put it, “for the court to satisfy itself about the plaintiff’s (respondents’) absence”. On the following day the court commenced the hearing of the counter-claim.

One interesting fact on record was that at the time the court heard the counter-claim the motion for relistment was pending before the court, but the record does not offer any clue as to the hearing of that motion.

What followed in sequence, however, was an application by the respondent’s new Counsel before the court then differently constituted praying for an extension of time within which to appeal against the judgment given on 25th July, 1997 in favour of the appellant on the counter-claim and also against the dismissal of the respondents’ claim on the 17th April 1996. The motion was filed on the 26th January, 1998 at 9.05 a.m. The learned trial judge granted the application for extension of time.

It is against this ruling that the defendant/appellant lodges this appeal. His main ground of appeal  reads;—

“The learned trial judge erred in granting the application when the conditions precedent for such grant were not fulfilled.”

Counsel for the appellant submitted that the learned trial judge was wrong for the following reasons among others;—

(a) because he erred with respect to the time within which the application could have been made;

(b) because there were no good and substantial reasons for the application,

(c) because there were no grounds or any sufficient grounds of appeal which prima facie, show good cause for the extension  to be granted.

I intend first to deal with the issue of time. The rules provide that a prospective appellant has 21 days within which to appeal against an interlocutory judgment: See rule 9(1) of the Court of Appeal Rules 1997 (C.I.19) and three months within which to appeal against a final judgment: See rule 9(1)(b) thereof.

The rules following thereafter are vital for the purpose of this appeal and I reproduce them hereunder. It is provided in rules 4 and 5 of C.I. 19 that:

“(4) No application for extension of time in which to appeal shall be made after the expiration of three months from the expiration of the time prescribed by this rule within which an appeal may be brought.

(5) An application for extension of time must be supported by an affidavit setting out good and substantial reasons for the application and grounds of appeal which, prima facie, show good cause for the extension of time to be granted.”   

The record shows that the respondents’ claim was dismissed on the 17th. April, 1996 but the  motion for extension of time was filed on 26th  January, 1998. It is quite obvious that the application was woefully out of time. Counsel for the respondents submitted that the dismissal of the action was not warranted by Order 36 rule 17 because the court did not simultaneously call on the appellant to prove his claim, consequently the dismissal was void and liable to be set aside. I am clearly of the opinion that a fair understanding of the rules calls for the reproduction of rules 16, 17 and 18 of Order 36 of the High Court (Civil Procedure) Rules 1954 (14A):—

They provide that:—

(16) If when a trial is called on the plaintiff appears, but the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.

(17)  If when a trial is called on, the defendant appears but the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but If he has a counter-claim he may prove it so far as the burden of proof lies upon him.

(18) Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court or Judge upon such terms as may seem fit.

It is patent that rules 16, 17 and 18 of Order 36 of the High Court (Civil Procedure) Rules 1954 (LN 140 A) were designed to assure for both parties in a lawsuit a high degree of fairness by clearly prescribing effective sanction for default of appearance at the trial and at the same time providing a fair compromise for a party’s default in a manner that serves the ends of justice.

Under these rules a verdict of judgment remains valid unless it is set aside within the statutory fourteen days or within a period extended by the court or judge by an application under Order 64: see Schafer vrs: Blythe (1920) 3 KB 141; Bradshaw vrs: Warlow 32 Ch D 408 CA and Mitchell vrs: Wilson 25 W.R. 380.

Cases which shed brighter light on the application of the rules are those decided in our own jurisdiction, namely, Djorbua vrs: Poku (1371) 1 GLR.93; Safo-Adu vrs: Boampong (1974) 2 GLR. 107 Nsiah vrs: Osei (1975) 1 GLR.257 Amoako Atta IV vrs: Nuamah (1963) 1 GLR.432; Ghana Commercial Bank vrs: Tabury (1977) 1 GLR.329. All these cases have one central principle, among others, that the party wishing to set aside a verdict or judgment must give good reasons for his default and also satisfy the court that some useful purpose would be served by setting aside the judgment or verdict.

The right to appeal against such verdict or judgment exists as of right but the Court of Appeal both in England and in Ghana or elsewhere has always expressed disinclination to encourage that process.

Thus in Vint vrs: Hudspith (1885) 29 Ch D.322 Bowen L.J. said

“I should be sorry to decide that the court has not jurisdiction to entertain an appeal from a judgment given by default; but it is equally clear that it is a bad practice to encourage parties

to come here without first having their cause in the first  instance tried by the court below.”and Cotton LJ added:

“I am far from saying that this Court cannot entertain an appeal from a judgment made by default, but in a case like the present it is important to prevent the Court of Appeal from being flooded by having to hear cases in the first instance. It is therefore right that the plaintiff should first apply to the judge who gave the judgment to restore the action.”

A veiled approval of these sentiments by English judges can be found in Amoako Atta vrs Nuamah (1963) 1 GLR.432 at 437 where the Supreme Court of the First Republic of Ghana speaking through Akufo-Addo JSC (as he then was) said:

“........ I agree with Counsel that the defendants should have applied to the court below for relief under Order 36 rule 18 and indeed, in my view, it is desirable that in such circumstances such an application should first be made if for no other reasons than that it is less expensive procedure than that of an appeal. But failure to do so does not disentitle the aggrieved parties from exercising their undoubted right to appeal to this court. The case of Vint Vrs: Hudspith (1885 29 Ch D 322 CA.) cited by counsel is not applicable for there the plaintiff failed to appear and the suit was struck out and judgment entered for the defendant.

I doubt whether such an order made pursuant to Order 36 rule 17 of the Supreme (High) Court (Civil Procedure) Rules can be said to be a judgment or a decision from which an appeal can be brought in this court. A judgment must ascertain or establish a previously existing liability of a defendant to a plaintiff (see Re Riddel: Ex-Parte Earl of Strathmore, 1888 20 QBD 512 Per Lord Esher MR), and a decision according to the New Zealand case of Winter vrs: Calder 1933 NZLR.289, implies the exercise of judicial determination as the formal and definite result of examining a question. An order dismissing a plaintiff’s action for want of prosecution does not answer to the attributes of a judgment or a decision and I am doubtful whether such an order is appealable ......... It is not necessary to reach a firm decision on that point and I would prefer to leave the matter open.”

For our present purposes I think that it is counsel of prudence to leave the point still open. It is my view that this court duly constituted to hear the appeal would be the proper forum to deal with the point. However, since the respondents have opted for an appeal it is incumbent

upon them to satisfy this court on two matters essential to the grant of an application for extension of time within which to appeal (i) good and substantial grounds for the delay in filing the appeal (ii) grounds of appeal which prima facie, justify the grant of the application. Counsel for the appellant submits that the respondents failed to satisfy these conditions at the court below and consequently were not entitled to the grant of the application. In granting the application all that the trial judge stated was as follows:—

“I have carefully read through the whole docket and read also the motion paper and the supporting papers. I have also carefully considered submissions by Counsel and have come to the conclusion that the chequered nature of the case permits the grant of the application. I therefore grant the application…….”

This finding is of no practical assistance to this court because the trial judge failed to apply his mind to the process of judicial determination of the issue before him. The learned judge's duty was to have analysed the Respondents' affidavit to see whether it contained good and substantial grounds for the application for extension of time within which to appeal and grounds of appeal which prima facie showed good cause for the extension of time to be granted.

The gist of the affidavit was that the respondents suffered as a result of the lukewarm approach of their first solicitor towards the prosecution of their claim and they were thus compelled to engage the services of a new solicitor.

Judging from the judgment of the trial judge one could hardly find anything that merited any commisceration from this court for the respondents and or their first counsel or solicitor. For example it is on record that the Respondents abused the indulgence of the court on several occasions by not appearing in court. Typical of this was the fact that when their first Counsel withdrew his services the trial judge gave them three weeks to find a new Counsel but they never appeared. Counsel for the respondent in his statement of case submitted that the dismissal of the claim was void and therefore the rules of court relating to limitation of time were inapplicable. He relied on Mosi vrs: Bagyina (1963) 1 GLR. I think it is of vital importance to demonstrate the distinctive characteristic of the principle in Mosi vrs: Bagyina from the facts of the instant case regarding the application of rules 16, 17 and 18 of Order of the High Court (Civil Procedure) Rules 1954 (LN.140A.) Under Mosi vrs: Bagyina a party affected by a judgment or order is entitled ex debito justitiae (as of right) to set the said judgment or order aside. The court or judge suo motu can also set it aside for the simple reason that that judgment or order had been rendered void ex vigore, legis by breach of some rule of procedure or substantive law: See dicta by Atuguba, JSC in Acheampong vers: The Republic (1996-97) SC.GLR.566 at 576.78. However, Counsel for the respondents submitted that the dismissal of the respondents' claim was void because it was not followed instantly by the hearing of the defendant's counter-claim and to that extent it violated the true spirit of order 36 rule 17 and rendered the dismissal void. This argument seems plausible on a critical construction of rule 17. The rule says that if the plaintiff does not appear, then the defendant shall be entitled to judgment dismissing the plaintiff's claim but if he has a counter-claim, he may prove it so far as the burden of proof lies on him. The rule carries within it an unanswered question and it is this: Where there is a counter-claim does the court or judge still have to dismiss the plaintiff's claim? No answer is offered by the rule but the reasonable deduction is that the court would have to exercise a judicial discretion. Although a court has an inherent jurisdiction to adjourn the trial of any case such as a counter-claim under such circumstances for good reasons:  See  In re Yates Settlement Trustee (1954) 1 WLR CA and Order 63 of the High Court (Civil Procedure) Rule 1964 (LN 140A) but the question is: Would it be a proper exercise of judicial discretion for a court faced with the application of order 36 rule 17 to dismiss the plaintiff’s claim and yet adjourn the defendant’s counter-claim? It seems to me that in fairness to both parties the court must exercise its discretion to adjourn the proceedings if it is not ready to proceed with the trial of the counterclaim. To do otherwise could raise doubts about the judge’s judicial impartiality. The exercise of discretionary power by public officers vested with such power is now governed by the Constitution 1992 where article 296 provides that:

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law…………..

This provision re-enacts the principles laid down in judicial decisions: See Boswell’s case (1605) 6 Co. Rep..486 at p.52. In re Brook, Dekomyn and Badart (1864) 46 CB (NS) 403 at 416. Buabeng vrs: Forkuo Court of Appeal 2nd February 1970 unreported digest in (1970) CC 59 all cited in Adu vrs The Republic [1976] 1 GLR.55 at 56. For the foregoing reasons I am afflicted by grave doubts in my mind as to whether the trial judge exercised his judicial discretion properly when he dismissed the respondent’s claim. It must be pointed out, however, that where a discretion is improperly exercised the aggrieved party has a right of appeal to impugn such decision, an appeal would not be the ideal option under Order 36 rule 17 because rule 18 provides a statutory remedy for the party affected by the decision to set it aside within fourteen days. The plight which beset the respondents was the initial gambit of their first solicitor which was a complete detour from the right procedure that ought to have been taken under rule 18. He messed himself up with an application to relist the suit. The respondents’ new counsel also unfortunately persisted in the appeal process.

He could have alleviated the plight of the respondents by applying to the court below for extension of time under Order 64, rule 7 of the High Court (Civil Procedure Rules) 1954 (LN.140A) to set aside the order dismissing the claim and paid costs just to get the case back on track. That procedure is less expensive and more liberal than the appeal process in the sense that under Order 64 there is no time limitation inhibiting judicial discretion as the  position is under rule 9 of C.I. 19. The upshot of all this is that the appeal against the dismissal is out of time and the trial judge erred in granting extension. The appeal is accordingly allowed in respect of the dismissal of the respondent’s claim. It is undoubtedly still open to the respondents to avail themselves of Order 64.

We however remit this case to the court below with an order that the motion for relistment be heard on its merit in order to serve the ends of justice.

Unlike the appeal against the dismissal of the respondents’ claim which was woefully out of time the appeal against the judgment in respect of the counter-claim was within the statutory time so the condition for time limitation of six months was fulfilled. The judgment was delivered on the 25 July, 1997 and the application for extension of time within which to file the appeal was filed on the 26th January, 1998 only one day out of time if in computing the time the 25th January, 1997 which was a Sunday is added.

In this regard, as Counsel for the respondents rightly submitted that Sunday ought to be excluded by reason of section 22(5) of the Interpretation Act 1960 (CA.4) which provides that:

25(5):  Where the time limited by an enactment for the doing of anything expires on a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first day following that which is not a Sunday or public holiday.

The position therefore is that the application was within time in respect of the counter-claim and it thus fulfilled one of the conditions required for such applications.

In the affidavit supporting the application, Counsel for the respondents deposed to the fact that the time for filing the appeal had elapsed when he received the necessary documents and briefing on the case.

He did not state the exact date of the receipt and why the filing of the application for extension of time was delayed. Paragraphs 13 and 14 of Counsel’s own affidavit (supra) lay the blame squarely at the door of the respondents themselves. The principle that the court should not visit the sins and defaults of a lawyer on his client stems from sheer judicial magnaminity rooted in the court’s inherent jurisdiction to do justice: See Mensah vrs: Adjei (1981) GLR.360 where the court refused to punish clients for the mistake of their lawyer in reporting a judgment to the Chief Justice instead of filing an appeal.

In the instant case there is ample evidence to show that both Counsel for the respondents have been guilty of professional lapses eg. filing a motion for relistment and again filing a motion for extension of time within which to appeal instead of proceeding under Order 36 rule 18. With regard to grounds of appeal no such ground as required under rule 9 of C.I. 19 were stated in the Respondents’ affidavit in support of their application for enlargement of time.

It was only in his written statement of case before this court that the new Counsel for the Respondents endeavoured to argue what he termed grounds of appeal all impugning the proceedings before the lower court as being a nullity. I think it is necessary to stress that the proper procedure in applications for extension of time is to devote at least one paragraph of the affidavit for the proposed grounds of appeal and to show where the trial judge or court erred on the facts or the law or mixed law and fact in his judgment or order or ruling.

The court would then take a decision whether the grounds disclose a prima facie case for the grant of the application. This procedure is obviously designed to place total embargo on applications for enlargement of time for appeals which may be considered unmeritrious frivolous and vexatious.

However, the test is not so much whether or not the grounds of appeal have bright prospects of success as whether or not they raise serious questions for determination by the appellate court. Thus in  Nye vrs: Nye (1964) GLR. 95 where of the First Republic had occasion to rule on rule 10(4) of the Supreme Court rules 1962 (LI 218) which is re-enacted under rule 9(5) of our Appeal Rules 1996 (C.I.19), the application before the court for extension of time within which to appeal had raised the issue of whether the High Court of Ghana had jurisdiction to entertain an issue relating to a matrimonial cause involving parties domiciled in England. The affidavit cited a legislation in England which the applicant contended permitted the courts of Ghana to try such case if the parties were resident in this country. On this issue Apaloo J, (as he then was) stated at page 98:

“Whether that view is right or not it is not necessary to express an opinion just now. It seems, however, that the applicant has a serious question of law for submission to this court and I would on that account, be inclined to grant enlargement of time.”

 

In the instant case although counsel for the Respondents did not raise any grounds of appeal in his affidavit in support of the application for extension of time he has before this court raised very crucial questions of law as to the legal effect of a dismissal of a plaintiff’s claim under Order 36 rule 17 in a case where the defendant has a counter-claim. This case also raises the question of law as to whether as it occurred in the instant case a trial judge or court is bound to order a hearing notice to be served on a plaintiff whose case has been dismissed under Order 36 rule 17 to attend the hearing of the counter-claim and to make such order  even when  the plaintiff had failed to attend to the first notice upon being served. The facts of this case show that when the trial judge fixed the 18/6/97 for the hearing of the counter-claim, hearing notice ordered by the court was served on the Respondents on the 2/6/97 but on the 18/6/97 they never attended court. It is my humble view that whenever a court adjourns a trial and directs that a party to the suit be served with a hearing notice it does so in solemn compliance with the hallowed rule of nature justice, audi alteram partem which like all other rules of practice at the courts is primarily designed to ensure fairness to all parties as justice commands.

This implies that where a party does not respond to the court’s call he commits contempt of court and until he purges that contempt he would not be entitled to any further notice: See the case of Safo and Another vrs: Badu (1977) 2 GLR.63. The facts of this case were that at the hearing counsel for the defendants sought an adjournment on certain reasons and the court, exercising its discretion adjourned the trial to a named date but on the due date none of the parties appeared in court and the trial magistrate fixed another date without ordering that hearing notices be served on the parties. On the adjourned date, the plaintiff who had made enquiries from the registry and had been advised of the adjourned date attended court and the court heard and determined the suit in favour of the plaintiff. On appeal counsel for the defendants submitted inter alia, that the trial magistrate did not observe the rules of natural justice when it heard the case in the absence of the defendant. In rejecting this submission Roger Korsah J, (as he then was) said at p.68:

“The audi alteram partem rule to which counsel refers means simply this: that natural justice requires that no condemnation should be pronounced behind the back of a man who has had no opportunity to appear and defend his interest, either personally or through his proper representative. But the court would not hold a judgment to be contrary to natural justice where the trial court had jurisdiction over the subject-matter of the suit and the parties thereto, and where the parties have duly and in accordance with the common law idea of natural justice been summoned to the trial court so as to have had a hearing or opportunity of being heard: See Robinson vrs: Fenner (1913) 3 K.B.835. The defendant herein was summoned to the trial court, she had an opportunity of being heard and would have been heard if she had exhibited vigilance comparable to that of the plaintiff. There was therefore no breach of the audi alteram partem rule which would render the judgment of the trial court void as suggested by counsel”.

The correctness of the statement of the law by Roger Korsah, J. (as he then was) can hardly be caviled at let alone criticised but that is one question, the other being whether the facts of that case to which he applied the law fall on all fours with the instant case. On the latter issue I am a bit sceptical as I direct focus of attention to what the trial judge is recorded to have undertaken to do, namely, to adjourn the case for the court to satisfy itself about the absence of the plaintiff’. In my view this undertaking implied that the trial judge would inquire about the reasons for the absence of the plaintiff.

There is however nothing on record which shows that the learned trial judge kept faith that   his self-imposed but solemn task of judicial enquiry. But the relevant portions of a letter dated 4th August, 1997 from the Group Legal Advisor of Unilever, the Plaintiff, addressed to Mr Luguterah, the new Counsel, is most revealing and I reproduce them hereunder:

“Dear Sir,

UNILEVER Vrs: S. K. APAH

The District Sales Manager for Tamale has intimated that judgment has been given in favour of the defendant since 25th July, 1997.  Please cause an appeal to be lodged in this judgment. You may seek a review of the striking out or dismissal of plaintiff’s case. Although we instructed Counsel in this matter, communication system perhaps did not allow a satisfactory follow up of this matter.

At one point we learnt S.K. Apah had left Tamale for good. We never knew there had been a counterclaim. It was served on the Solicitor acting for Unilever, he never asked for our reaction. Besides staff turnover deprived Unilever of a proper opportunity to follow up the matter. Please ask for a review of this aspect of the matter so that our claim can be proved.

We hope you are asking for a stay of execution whilst you address the other issue.

Yours Sincerely,

A. AYITEY

Group Legal Advisor/Co Secretary

It seems to be crystal clear that if Counsel for the respondents had heeded to the wise instructions contained in this letter the respondents would not have found themselves in their present predicament.  The real import of the term ‘opportunity’ used by Roger Korsah J. (as he then was) not made available to the respondents. I would on this account as well as other reasons contained in the respondents affidavit grant the extension just as Aninakwa J did. It follows that the appeal is dismissed with respect to the counter-claim for as the Court of Appeal speaking through Azu Crabbe, Ag. C.J. (as he then was) in Adjowoi vrs: Yiadom II Civil Motion No. 70/69 dated 26 March, 1970 C.A. unreported said in an application for enlargement of time within which to fulfil conditions of appeal:

“the test ought to be whether refusal by the Court of Appeal to extend time would result in a failure to do justice.”

I award no costs. Each party to bear his own expenses.

P.K. TWUMASI

JUSTICE OF APPEAL

FORSTER, J.A.

I agree

A. A. FORSTER

JUSTICE OF APPEAL

ESSILFIE-BONDZIE, J.A.:

I also agree.

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL.

 
 

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