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representative informing them that he had withdrawn his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. |