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JUDGMENT
AKUFFO, J.S.C.:
This is an appeal from the
judgement of the Court of
Appeal, delivered on July 26th,
2001, which:—
a) granted the appeal of the
Respondent herein,
b) set aside the High Court’s
summary judgement and orders in
suit no. 855/97,
c) dismissed the Appellant’s
application for Summary
Judgement and
d) granted to the Respondent
leave to defend the action in
the High Court.
Aside from the usual ground that
the judgement of the Court of
Appeal was against the weight of
the evidence, the main ground
for the appeal herein is that:—
The Court of Appeal erred in law
by dismissing the Appellant’s
application for Summary
Judgement and granting the
Respondent leave to defend, when
the defence filed by the
Respondent clearly showed that
he had no defence in law and no
possibility of a real defence on
the questions of fact.
The application on which the
High Court made its decision was
brought under Order 14 of the
High Court (Civil Procedure)
Rules, 1954 (L.N. 140A), as
amended by L.I. 1129 of 1977,
Rules 1 and 3(1) of which read
as follows:—
“1. Where in an action begun by
writ a defendant has been served
with a Statement of Claim and
has entered an appearance, the
plaintiff may apply to the Court
for judgement against him on the
ground that he has no defence to
a claim included in the writ, or
to a particular part of such a
claim, or that he has no defence
to such claim or part except as
to the amount of any damages
claimed.
3(1) A defendant may show cause
against the application by
affidavit or otherwise to the
satisfaction of the Court”
The objective of Order 14 is to
facilitate the early conclusion
of actions where it is clear
from the pleadings that the
defendant therein has no cogent
defence. It is intended to
‘prevent a plaintiff being
delayed when there is no fairly
arguable defence to be brought
forward.” (See Halsbury’s Laws
of England, Fourth Edition,
516). What we are, therefore,
required to do in this appeal is
to ascertain whether, on the
totality of the pleadings and
all matters before the High
Court at the moment it delivered
the Summary Judgement, the
Respondent had, demonstrably,
any defence, in law or on the
available facts, such as would
justify his being granted leave
to defend the Appellant’s claim.
At the time the Court decided to
grant the application, it had on
its record the Writ of Summons
claiming an order of ejectment
from property no. 109, East
Cantoments, Accra; rent arrears
in the sum of $38,250.00 or its
equivalent in Cedis; interest on
the rent arrears from 1st July
1996 up to the date of payment
and, mesne profits. There was
also the Statement of Claim, the
affidavit in support of the
Appellant’s application and the
Statement of Defence. Attached
to the supporting affidavit
(which simply confirmed the
averments contained in the
Statement of Claim) were
exhibits A and B which were,
respectively, a letter from the
Group Legal Advisor/Company
Secretary of Unilever notifying
the Respondent of the sale of
the property to the Appellant,
and a letter from the solicitor
for the Appellant to the
Respondent, dated 12th
September, 1997. In the latter
correspondence the solicitor
informed the Respondent of his
breach of his tenancy by his
failure to pay any rent since
July 1996, despite the
Appellant’s demands and gave
notice that the Respondent must
vacate the premises within 3
months. The letter also gave the
Respondent 14 days within which
to settle the arrears of rent
due. The Respondent filed no
affidavit in opposition to the
application but, rather, relied
on his Statement of Defence.
Looking at the Statement of
Claim (as amended on 24th July,
1998, pursuant to leave granted
on 13th July, 1998), the main
thrust of the Appellant’s case
was that he purchased the
property from its previous
owner, Unilever Ghana Limited,
who, after the sale, by a letter
dated 29th December 1995,
informed the Respondent of the
transfer of ownership and
requested him to attorned
tenancy to the Appellant.
According to the Appellant, the
Respondent duly attorned tenancy
to him by paying rent up to 30th
July 1996. However, since 1st
July 1996, the Respondent had
continued to occupy the premises
without paying any rent, despite
the Appellant’s repeated demands
for rent. Also according to the
Appellant, the rent at the time
the Respondent attorned tenancy
to him was the Cedi equivalent
of $2,125.00 per month.
By his Statement of Defence, the
Respondent contended that the
sale of the property was a sham
and he, therefore, denied that
the appellant is the owner of
the property. He, however,
admitted in paragraph 4 that he
is the tenant of the premises as
averred in paragraph 2 of the
Statement of Claim. It appears
to us that the key portions of
the Statement of Defence are
paragraphs 3 and 5-9, which read
as follows:—
“3. In further answer to
paragraph 1, aforementioned
defendant avers that at all
material times to this action,
he has known UAC Ghana
Limited/Unilever as the owner of
the house in dispute….
4. Defendant denies paragraph 3
of the statement of claim and
will contend at the trial of
this suit that the alleged sale
is a sham hence the plaintiff’s
inability to exhibit any Deed of
Sale/Assignment with the
requisite consent in support of
his alleged ownership of the
said house.
5. In answer to paragraph 4 of
the Statement of Claim,
defendant denies attorning
tenant to plaintiff and avers
that he made payment of
$20,000.00 to plaintiff’s wife
under duress due to her
persistent harassment of
defendant and on account of the
misrepresentation contained in
the said letter of 29/12/95….
6. In answer to paragraph 5 of
the Statement of Claim,
defendant says that his refusal
to pay rent to plaintiff was due
to the refusal of the
plaintiff’s wife … to issue him
any receipt for the $20,000.00
paid to her despite persistent
demands for same, and
plaintiff’s inability to show
any evidence of valid legal
title to the said house.
7. Defendant denies paragraph 6
of the Statement of Claim and
contends that at all material
times … the rent for the house
in dispute has been $1,500.00
and not 2,125.00 contrary to the
applicable laws of this country.
8. Defendant denies paragraph 7
of the Statement of Claim and
will exact strict proof of the
averments therein whilst
contending that any agreement
stipulating the exigible rent
for the house in dispute in US
Dollars is illegal and
unenforceable.”
The learned High Court judge did
not elaborate on her reasons for
granting the application, other
than saying that “On the
pleadings so far filed in this
suit, it is my considered view
that the application for Summary
Judgement should be granted.”
The Court of Appeal was of the
contrary view.
According to Halsbury (see
Halsbury’s Laws of England,
Fourth Edition, 519), a
defendant is entitled to
unconditional leave:—
“… in all cases where he shows
that he has a genuine defence,
or adduces facts which may
constitute a plausible defence,
or shows that there is some
substantial question of fact or
law to be tried or
investigated.”
In arriving at the decision to
grant the Respondent leave to
defend, the Court of
Appeal determined that: —
a. the Respondent in his
Statement of Defence pleaded
facts, which raised the defences
of duress and misrepresentation,
both of which are defences known
to the law that he must be given
the opportunity to prove.
Therefore if the Respondent had
not given sufficient particulars
of the nature of the harassment
and misrepresentation, the
Appellant could always have
recourse to Order 19 rules 7 and
8 to demand further and better
particulars
b. since, upon calculation, the
amount of $20,000.00 paid by the
Respondent did not represent
rent at either $1,500.00 per
month (the rental admitted by
the Respondent) or $2,125.00 per
month (as claimed by the
Appellant) the issue of the
exigible rent was one that
needed to be established through
evidence.
c. the Statement of Defence
also placed into question the
legal enforceability of the rent
since, in exhibit ‘B’, the same
was expressed in US Dollars and
by virtue sections 1A and 5(2)
of the Exchange Control
(Amendment) Law, 1986 (PNDCL
149) payment or receipt of
monies in any external currency
by a person resident in Ghana,
without authorisation from the
Secretary of Finance, is
prohibited.
Regarding the first
determination, this is a case in
which the Respondent admitted
that he knew Unilever to be
owner of the premises and the
Appellant exhibited a letter
from Unilever to the Respondent
informing him of the sale of the
property to the Appellant.
Consequently, since it was never
part of the Respondent’s case in
the High Court that he or any
other person was the rightful
owner of the property, there was
no obligation on the Appellant
to prove his title by any other
means beyond the production of
exhibit ‘A’. In the
circumstances, therefore, a mere
allegation of misrepresentation,
without any further particulars
of such misrepresentation cannot
amount to a genuine or plausible
defence. Yet, other than
describing as a sham the sale of
the property to the Appellant,
nowhere in the Respondent’s
Statement of Defence, or in the
proceedings at the hearing of
the application, did the
Respondent offer any facts even
remotely approaching particulars
of misrepresentation or his
grounds for describing the sale
as a sham.
Likewise, the Respondent’s
allegation that he only paid the
$20,000.00 rent under duress
because the Appellant’s wife
harassed him, without any
particulars of the action or
conduct that, in his view,
amounted to harassment, did not
constitute a genuine or
plausible defence. Indeed, that
the Respondent in paying the
amount was attorning tenancy to
the Appellant is evident from
his averment in paragraph 7 of
the Statement of Defence to the
effect that one of the reasons
he refused to pay any more rent
was because the Appellant’s wife
had refused to give him a
receipt for the earlier
payments, thus giving a lie to
his allegation of duress.
Regarding the third of these
determinations, the sections
referred to read as
follows:—
“1A. For the avoidance of doubt,
it is hereby declared that
unless otherwise authorised by
the Secretary responsible fore
Finance, no Ghana resident shall
receive in Ghana any external
currency as payment for service
rendered or for the sale of
goods or property by him or as
rent in respect of any property
owned by him.
“5(2). Except in circumstances
as may be prescribed, no person
or individual shall make a
payment in external currency to
or for the credit of a Ghana
resident for services rendered
by him or for the purchase of or
in exchange for goods or
property, or for the settlement
of rent in respect of any
property owned by such Ghana
resident.”
Although the amount demanded in
exhibit ‘B’ is stated in US
Dollars, it is patently clear
from the amended Statement of
Claim that the amount claimed by
the Appellant as rent arrears is
the Cedi equivalent thereof.
What the abovementioned law
expressly prohibits is payment
or receipt of payment in
external currency. It imposes no
prohibition on the denomination
of monies due in such external
currency. It does not relate to
the legality or enforceability
of an agreement that
denominates, in such currency,
any amount payable thereunder.
Consequently, it is rather
difficult to fathom how the
Respondent’s contention in this
regard would amount to a genuine
or plausible defence to any of
the Appellant’s claims such as
would justify a trial thereon.
On the question of the exigible
rent, except for the amount
demanded in exhibit ‘B’, there
was nothing in the pleadings to
support the Appellant’s claim
for rent at $2,125.00 per month
so as to justify the grant of a
relief for arrears of rent
calculated on that basis.
However, since the Respondent
had in his pleadings contended
that the rent was $1,500.00 per
month, the learned High Court
Judge ought to have given
judgement for arrears of rent
calculated on that basis and
granted the Respondent leave to
defend the remainder of the
amount claimed by the Appellant.
In his Statement of Case in this
appeal, the Respondent, for the
first time raised a number of
issues which he had not raised
in his Statement of Defence or
in oral argument at the hearing
of the application and which,
therefore, were not matters
before the High Court judge at
the time she entered the Summary
Judgement. These matters were
also not raised before the Court
of Appeal. It was therefore,
highly irregular for the
Respondent to raise such matters
at this time and in such manner.
We would have ignored all of
these new matters except for the
fact that one of them raises the
question of whether the
Respondent was the proper person
to be sued in the first place.
This is a matter on which we
must make a determination even
though raised at this late
stage.
Counsel for the Respondent
contends that the tenant of the
property is Seel (Ghana) Ltd,
and the Respondent is merely a
resident licensee of the said
company. According to Counsel,
although in his Statement of
Defence the Respondent admitted
that he is the tenant, such
admission was mistakenly made.
Consequently, the proper person
to be sued was Seel Ghana
Limited. Ordinarily, it is open
to a party at any time, however
belatedly, to dispute the
propriety to his being made
party to a suit. (See Order 15,
r 6(2)(a) of the High Court
(Civil Procedure Rules) as
amended by L.I. 1129) and Morkor
v. Kuma [1998-99] SCGLR, 620).
In this case, however, not only
is the Respondent the person in
actual occupation of the
premises, more significantly, he
is the Managing Director of the
company alleged to be the real
tenant. Other than the
Respondent who else would be in
a better position to know
whether or not he is the tenant
of his residence? The claim of
mistake is totally unacceptable
and we reject it. In any event,
since one of the Appellant’s
claims was for ejectment, and
the Respondent is the person in
actual occupation of the
property, he is, in the
circumstances a proper party to
the suit.
We, therefore hold that on the
state of the record before the
High Court at the time of the
application, the judge exercised
her discretion judicially in
when she ordered the ejectment
of the Respondent from the
property. Consequently, the
judgement of the Court of Appeal
is hereby aside and the High
Court’s orders for ejectment of
the Respondent and mesne profits
are restored. We, however,
substitute, in place of the
order made in respect of rent
arrears, an order for the
recovery of arrears of rent
calculated on the Cedi
equivalent of $1,500.00 per
month from July 01, 1996. The
Respondent is hereby granted
leave to defend the amount
remaining on the Appellant’s
claim for arrears of rent.
E. K. WIREDU,
CHIEF JUSTICE
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
D. K. AFREH
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Amarteifio with Mrs. Agnes
Tagoe and Alex Owoo for the
Appellant
Mr. Bossman with Heward Mills
for Respondent.
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