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Practice and Procedure -
Striking out of Appeal -
Non-appearance - Re-listing –
Affidavit of Service - Proof or
affidavit of service -
Discretionary power of the
Courts - Whether or not Counsel
for the Applicant was served or
not with the hearing notice -
Whether or not the Applicant
had failed to demonstrate on the
face of his affidavit that he
has an arguable and not a
frivolous case on appeal -
Whether or not the decision is
against the weight of evidence -
Whether purported service on an
unnamed or unidentified
individual at a lawyer’s office
or chambers constitutes service
on the lawyer and for that
matter- Rule 23 of C.I. 19,
Court of Appeal Rules, 1997
HEADNOTES
Following the judgment of the
trial High Court, Tema, presided
over by Avril Lovelace Johnson,
JA, sitting as an additional
High Court Judge, dated 28th
May, 2015, the Respondent herein
filed an appeal to the Court of
Appeal. The Parties filed their
written submissions in respect
of the Appeal and hearing of the
appeal was fixed for 7th
November, 2018. On the said
date, both the Respondent and
his Counsel were absent from
Court and the Appeal was
consequently struck out for want
of prosecution by the Court of
Appeal. Subsequently, the
Respondent filed an application
to
re-list the Appeal and this
application was granted on 11th
February, 2019. Aggrieved by the
decision of the Court of Appeal
to re-list the Appeal of the
Respondent herein the Appellants
herein brought this Appeal
HELD
In any event, the Appellant
sought compensation by way of
damages and/or costs in the sum
of eight thousand United States
Dollars (US$ 8,000.00) or its
Cedi equivalent, being a sum of
Forty Thousand Ghana Cedis (GH¢
40,000.00) for the inconvenience
and costs that the grant of the
re-listment of the appeal would
occasion the Appellant. It is
therefore untenable for the
Appellant after having been duly
compensated by way of costs in
the sum of Five Thousand Ghana
Cedis (GH¢ 5,000.00), to turn
around to protest the very
re-listment for which they had
sought and been awarded costs.
We therefore hold that the
Court of Appeal acted judicially
when it allowed the Application
for Re-listment in order that
the Appeal can be considered on
its merits and substantive
justice done to the parties.
This Appeal therefore fails and
is accordingly dismissed and the
decision of the Court of Appeal
is hereby affirmed.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, 1997 C.I.
19,
CASES REFERRED TO IN JUDGMENT
Charles Osenton & Co. v.
Johnston [1942] A.C. 130 at 138,
H.L
Sappor v. Wigatap Ltd.
(2007-2008) SCGLR 676
Ballmoos v Mensah, [1984-86] 1
GLR 724
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
KULENDI, JSC:-
COUNSEL
O.K OSAFO BUABENG ESQ WITH HIM
PETRINA DEPHIA ESQ FOR
PLAINTIFF/
APPELLANT/
RESPONDENT.
GODWIN ADJEI-GYAMFI ESQ WITH HIM
AGYENIM ADJEI BOATENG FOR 2ND
AND 3RD
DEFENDANTS/RESPONDENTS/APPELLANTS
JUDGMENT
KULENDI, JSC:-
INTRODUCTION
We have before us, an appeal
from the decision of the Court
of Appeal (Civil Division),
Accra dated 11th February, 2019
re-listing an appeal filed by
the Respondent which was earlier
struck out for want of
prosecution on 7th November,
2018.
BACKGROUND
Following the judgment of the
trial High Court, Tema, presided
over by Avril Lovelace Johnson,
JA, sitting as an additional
High Court Judge, dated 28th
May, 2015, the Respondent herein
filed an appeal to the Court of
Appeal. The Parties filed their
written submissions in respect
of the Appeal and hearing of the
appeal was fixed for 7th
November, 2018. On the said
date, both the Respondent and
his Counsel were absent from
Court and the Appeal was
consequently struck out for want
of prosecution by the Court of
Appeal.
Subsequently, the Respondent
filed an application to re-list
the Appeal and this application
was granted on 11th February,
2019. Aggrieved by the decision
of the Court of Appeal to
re-list the Appeal of the
Respondent herein the Appellants
herein brought this Appeal
on the following grounds which
may be found at page 89 of the
Record of Proceedings:
1.
The Court of Appeal erred when
it held that it is their candid
opinion that there is a
controversy as to
whether
Counsel for the Applicant was
served or not with the hearing
notice;
2.
That the Court of Appeal erred
when it held that the appeal
which was struck out on the 7th
day of November, 2018, be
re-listed on the cause list;
3.
That the Court of Appeal erred
when it failed to consider
Respondent Counsel’s second
submission that in accordance
with law,
the Applicant had failed to
demonstrate on the face of his
affidavit that he has an
arguable and not a frivolous
case on appeal;
4.
That the
decision is against the weight
of evidence put forth before
the Court
It is significant that the 1st
Defendant/Respondent the Tema
Development Corporation has not
appealed the decision of the
Court of Appeal to re-list the
Appeal to be heard on the
merits.
ARGUMENTS OF THE APPELLANTS
In the Statement of Case of the
2nd and 3rd
Defendants/Respondents/Appellants
(hereinafter called “the
Appellants”), they argue that
contrary to the holding of the
Court of Appeal at page 88 of
the record, that “there is a
controversy as to whether
counsel for the Applicant was
served or not, taking into
consideration Exhibit ‘C2’, the
Official Search” the Respondent
was served with the hearing
notice. Appellants point to the
Affidavit
of Service on page 57 of the
Record of Appeal as proof of
service. The Affidavit of
Service reads that the Hearing
Notice was served “on
Oseawuo Chambers” personally
at M.O. Oseawuo at Tema Com.
8.”
Counsel for the Appellants also
argue that the evidence that the
Respondent was served is
“overwhelming” which is why the
Court of Appeal concluded in
striking
out the Appeal that “Appellant
is not in court. There is
evidence Appellant has been
served with hearing notice for
today’s proceedings. Service was
on 18th October, 2018.”
The Appellant relies on the
decision of this Court in the
case of
Sappor v. Wigatap Ltd.
(2007-2008) SCGLR 676
and reproduces the entirety of
this Court’s conclusion in
holding 2 when it held as
follows:
“The Argument that service on
the Appellant’s counsel did not
constitute proper service is
clearly untenable. It is trite
learning that the service of
court processes, or more
specifically, as in this case,
of hearing notice in respect of
the pending appeal on counsel,
does constitute proper service.
… The well established principle
is that the applicant is not
without a remedy if her position
is that her counsel was entirely
blameable for her absence from
court and the consequent
striking out of her appeal.”
The Appellants also contend that
paragraph 11 of the Respondent’s
Affidavit in support of their
motion for re-listment, where
the Respondent’s representative
deposes as follows; “That by
the search results, it came to
the knowledge of the Applicant
that the hearing notice at issue
was served on and received by
the law firm of the
Appellant/Applicant’s lawyer”
constitutes an admission of
service by the Respondent’s
lawyers. They submit that
because of this purported
admission, the Court of Appeal
was wrong to have granted the
application for re-listment.
The Appellants further contend
that per the decision in
Sappor v. Wigatap Ltd. (supra),
an applicant for re-listment
must demonstrate to the Court on
the face of the Affidavit in
Support of that motion, that
they have an arguable and not a
frivolous case on appeal. The
Appellant argues that in their
Affidavit in Support, the
Respondent never gave a good and
sufficient reason for their
absence from court, and that
saying that “the hearing notice
was not brought to his
attention” is “most frivolous,
absurd”. The Appellants then
state that the the Respondent
failed to demonstrate on the
face of its Affidavit that there
existed an arguable and not
frivolous case pending on
appeal. They maintain that the
Respondent merely pointed to the
fact that an appeal was pending,
but stated nothing about the
chances of success of the
pending appeal.
The Appellants urge that the
Court of Appeal did not properly
exercise its discretion because
it failed to take into
consideration relevant matters
and took irrelevant material
into consideration. They claim
that the Court of Appeal failed
to take into consideration the
Ruling striking out the appeal,
or the purported admission they
reference above in paragraph 11
of the Respondent’s Affidavit in
Support of the motion for
re-listment.
Finally, the Appellants submit
that the Court of Appeal’s
decision to allow the re-listing
of the appeal is against the
weight of the evidence presented
before the Court. On this
ground, the Appellants simply
submit that “the Ruling of
11th day of February 2019,
is not support by the
overwhelming evidence in favour
of striking out the substantial
appeal on the 7th day of
November 2019. For instance,
there is the evidence of the 7th
day of November 2019 Ruling
where the judges indicated that
there was evidence the
Respondent had been served with
the hearing notice, there is the
evidence of proof of service and
the Respondent’s lawyer’s
admission that her firm was
served with the hearing notice
in her affidavit in support of
her motion on notice for
re-listment.” [sic]
ARGUMENTS OF THE RESPONDENT
Counsel for the Respondent on
his part, chose to respond to
these grounds of appeal under
“one umbrella”. The Respondent
attacks the Affidavit of Service
referenced above which states
that the Hearing Notice was
served “on Oseawuo
Chambers” personally at
M.O. Oseawuo at Tema Com. 8.”
[sic]. The Respondent says that
there is neither an individual
named “Oseawuo Chambers”, nor an
“M.O. Oseawuo”. The Respondent
thus argues that the failure of
the process server to list the
name of an individual on the
Affidavit of Service renders it
at least controversial, the
question of whether or not
Counsel for the Respondent was
served with the Hearing Notice.
The Respondent in their
Statement of Case also argues
that an individual who receives
a process from a process server
or bailiff, by practice signs
his name in a book provided by
the bailiff or process server.
They reference the Affidavit in
support deposed to by Petrina
Defia, a solicitor at Oseawuo
Chambers who deposed as follows:
“ 11. That by the search
results, it came to the
knowledge of the Applicant, that
the hearing notice at issue was
served on and received by the
law firm of the
Appellant/Applicant’s lawyer.
12. That although the aforesaid
search conducted by the
representative of the Applicant
indicates that the hearing
notice in question was served on
the law firm, it does not name
the specific person or staff of
the law firm the hearing notice
was served on.”
The Respondent states that
according to the search report,
the Hearing Notice was served on
“Oseawuo Chambers and received
by Oseawuo Chambers”. The
Respondent argues that this
vagueness justifies the decision
of the Justices of the Court of
Appeal to reinstate the appeal.
The Respondent also contends
that the Parties’ written
submissions are on record as
same were filed before the
failure of the Respondent and
his counsel to attend court on
the day it came up for hearing.
Respondent argues that a cursory
look at the written submissions
for both parties show that the
pending appeal is one in which
real issues for determination
are raised, and therefore not a
frivolous or vexatious appeal.
The Respondent then concludes by
saying that the decision by the
Court of Appeal to re-list the
Respondent’s appeal amounted to
a proper exercise of its
discretionary powers.
THE LAW AND ANALYSIS
Rule 23 of C.I. 19, Court of
Appeal Rules, 1997
governs the power of the Court
of Appeal to strike out an
Appeal for non-appearance of the
appellant, as well as the power
to re-list an appeal struck out
for
non-appearance. Rule 23
of C.I. 19 provides:
Rule 23—Non-appearance of
Appellant.
i.
Where the appellant fails to
appear when his appeal is called
for hearing and he has not taken
action under rule 22, the appeal
may be struck out or dismissed
with or without costs.
ii.
When an appeal has been struck
out or dismissed owing to the
non-appearance of the appellant
the Court may, direct the appeal
to be re-entered for hearing on
such terms as to costs or
otherwise as it may think just.
The use of the word ‘may’ in
Rule 23 (2) of C.I. 19
demonstrates the discretionary
nature of the Court’s power to
grant or refuse a motion to
re-list/re-enter an appeal for
hearing. The use of
discretionary power under this
rule is guided by the content of
the rule itself, as well as the
myriad of decisions regarding
the nature of
discretionary power of the
Courts.
The remainder of Rule 23 (2)
of C.I. 19 says that a Court
may grant the re-listing or
re-entering of a case “on
such terms as to
costs or otherwise as
it may think just.”
(emphasis added). This is
another way of saying that the
Court should use its discretion.
When it comes to the exercise of
such discretion, the authorities
are as manifold as they are
unified on the principles
governing the manner in which a
Court ought to exercise its
discretion. Once a Court
exercises it discretion, an
appellate court cannot simply
substitute its discretion for
the discretion of the lower
court. The Appellate Court may
only interfere with the ruling
of the lower Court if it
concludes that the lower Court
did not act judicially in
arriving at the decision under
challenge.
In the case of
Charles Osenton & Co. v.
Johnston [1942] A.C. 130 at 138,
H.L, Viscount Simon LC
said:
"The law as to the reversal
by a court of appeal of an order
made by the judge below in the
exercise of his discretion is
well-established, and any
difficulty that arises is due
only to the application of
well-settled principles in an
individual case. The appellate
tribunal is not at liberty
merely to substitute its own
exercise of discretion for the
discretion already exercised by
the judge. In other words,
appellate authorities ought not
to reverse the order merely
because they would themselves
have exercised the original
discretion, had it attached to
them, in a different way. But if
the appellate tribunal reaches
the clear conclusion that there
has been a wrongful exercise of
discretion in that no weight, or
no sufficient weight, has been
given to relevant considerations
such as those urged before us by
the appellant, then the reversal
of the order on appeal may be
justified."
In the oft-referenced case of
Sappor v. Wigatap (supra),
this Court held that “It
bears emphasis that the
application to have the appeal
restored was an invitation to
the Court to exercise a
discretionary jurisdiction. The
well known and time honoured
legal principle is that an
appeal against a decision based
on the exercise of a Court’s
discretionary jurisdiction would
succeed in only those clearly
exceptional cases where, in sum,
the judge failed to act
judicially.”
In the case of
Ballmoos v Mensah, [1984-86] 1
GLR 724-733 it
was held as follows:
“An appeal against the
exercise of the court's
discretion might succeed on the
ground that the discretion was
exercised on wrong or inadequate
materials if it could be shown
that the court acted under a
misapprehension of fact in that
it either gave weight to
irrelevant or unproved matters
or omitted to take relevant
matters into account; but the
appeal was not from the
discretion of the court to the
discretion of the appellate
tribunal.”
We will now turn to the ruling
of the Court of Appeal. The
Court of the Appeal found in its
Ruling that it is their “Candid
opinion” that there is a
controversy as to whether
counsel for the Applicant was
served or not, taking into
consideration Exhibit ‘C2’. The
court concluded that Counsel for
the Respondent has successfully
and convincingly argued that
when a document is served on a
company or an institution, it is
critical that a court is able to
tell from the documents
evidencing the service, who
exactly the document was served
upon.
We cannot but agree with the
Respondent. After all, it is
trite that legal persons or
entities such as law firms and
law chambers, not being natural
persons can only act through
duly constituted natural persons
who are eligible to act for and
on their behalf. Therefore, to
constitute proper service on a
law firm or chambers, the
proof or
affidavit of service ought
to name the person personally
served for and on behalf of the
law firm or chambers. This Court
takes judicial notice of the
fact that in practice, this may
be a front-desk executive or
secretary at the law firm, a law
clerk, an administrator, or a
lawyer who is a member of the
law firm at which the lawyer of
record works. The law firm per
se, not being a natural person
cannot be served in the manner
that the affidavit of service in
issue (Exhibit “C2”) appears to
suggest. This is because the
document could be received by a
security man, a gardener, or a
well-dressed individual who is
unconnected to the intended
recipient and that document may
never reach the Counsel it was
intended to reach.
For this reason alone, there is
a basis for the conclusion of
the Court of Appeal that there
is a controversy as to whether
or not, the Hearing Notice was
duly served and/or brought to
the attention of Mr. O.K. Osafo
Buabeng Esq., the lawyer on
record for the Respondent.
The contention of the Appellants
that the explanation of the
Respondent is “most frivolous
and absurd” is unfounded and
unjustified having regard to the
practice and the circumstances
of this case.
In any event, not withstanding
proper service, the Court of
Appeal and for that matter, any
Court, is entitled to exercise
its discretion one way or the
other, always having regard to
the particular circumstances of
each case in order to reach a
conclusion as to whether or not
it is proper to permit a
re-listment or waiver of an
omission or failure by any
applicant in proceedings before
it.
For an appeal that was struck
out for want of prosecution due
to non-attendance that resulted
from an alleged non-service of
the Hearing Notice, we do not
think that it would be fair or
proper to impose a requirement
that the party applying to
re-list the appeal must
demonstrate that their appeal is
not frivolous or unmeritorious.
This is will be duly evaluated
and considered when the appeal
is relisted for consideration on
the merits. Moreso because the
parties have already filed their
respective written submissions,
wherein the Respondent may have
demonstrated the frivolity or
otherwise of its appeal. Whether
or not the appeal is frivolous
or raises arguable points was
immaterial at this stage and
rightly ought not to have been
the focus of the Court of Appeal
in considering an application
for re-listment under the
specific circumstances of this
case. The burden of an applicant
seeking a re-listment is
primarily to advance a
reasonable explanation for their
failure to attend the hearing of
the appeal as scheduled.
The issue in this Appeal is not
whether or not service on a
lawyer constitutes proper
service on a party which is part
of the ratio in Sappor v.
Wigatap (supra). In this
Appeal, the proper question is
whether
purported service on an unnamed
or unidentified individual at a
lawyer’s office or chambers
constitutes service on the
lawyer and for that matter,
the party such lawyer
represents. This issue is borne
out by a comparison of the
Affidavit of Service (Exhibit
“C2”) at page 57 of the Record
of Appeal which fails to name
the person personally served, at
Oseawuo Chambers and the
Affidavit in Support of the
Application for Re-listment
which does not deny service at
Oseawuo Chambers but explains
that the Hearing Notice in issue
was never brought to the
attention of O.K. Osafo Buabeng
Esq. The ratio in Sappor v.
Wigatap (supra) on proper
service is therefore
distinguishable from the instant
case.
We are of the considered opinion
that for service of
non-originating processes of
Court to constitute proper
service on the lawyer and for
that matter the party such
lawyer represents, the service
ought to be on the lawyer
personally, or if served at his
law firm or chambers, it must be
served on a named and
identifiable person such as any
other lawyer who is a member of
the law firm or chambers
concerned, a secretary or front
desk executive of the law firm,
an administrator or a law clerk
of the law firm. To hold
otherwise would be retrogressive
and will undermine the smooth
administration of justice and
create a pretence for needless
objections and/or denials of
service by lawyers and/or
parties.
The Court of Appeal therefore
acted judicially in focusing on
the reasonableness or otherwise
of the explanation for the
non-appearance of the Respondent
and its lawyers when the Appeal
came up for hearing. The
Affidavit of Service fails to
name the person who was supposed
to have been personally served.
From the conclusion reached by
the the Court of Appeal it had
no reason to doubt the veracity
of deposition of Petrina Defia
Esq. at pages 61-64 of the
Record and the reasonableness of
the explanation offered for the
non-appearance of the Respondent
and its counsel. Consequently,
the Court of Appeal was within
its remit in concluding that
there was a controversy as to
whether or not Counsel for the
Respondent had been served and
electing to accept the
Respondent’s explanations for
their non-appearance. In line
with settled practice, we find
that this is a proper exercise
of the Court of Appeal’s
discretion and Rule 23(2) of
C.I. 19 and we find no
reason to interfere with same.
We are satisfied that sufficient
weight was given to all the
relevant considerations and the
Court of Appeal acted judicially
and with justification. No wrong
or inadequate material was
relied upon and there was no
misapprehension of the facts
before the Court neither was
weight given to any irrelevant
or unproved matters in reaching
its conclusions.
In any event, the Appellant
sought compensation by way of
damages and/or costs in the sum
of eight thousand United States
Dollars (US$ 8,000.00) or its
Cedi equivalent, being a sum of
Forty Thousand Ghana Cedis (GH¢
40,000.00) for the inconvenience
and costs that the grant of the
re-listment of the appeal would
occasion the Appellant. It is
therefore untenable for the
Appellant after having been duly
compensated by way of costs in
the sum of Five Thousand Ghana
Cedis (GH¢ 5,000.00), to turn
around to protest the very
re-listment for which they had
sought and been awarded costs.
We therefore hold that the Court
of Appeal acted judicially when
it allowed the Application for
Re-listment in order that the
Appeal can be considered on its
merits and substantive justice
done to the parties. This Appeal
therefore fails and is
accordingly dismissed and the
decision of the Court of Appeal
is hereby affirmed.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
P.
BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
I.O. AMADU TANKO
(JUSTICE OF THE SUPREME COURT)
PROF. H. J. A.
N. MENSA-BONSU (MRS.)
(JUSTICE
OF THE SUPREME COURT)
COUNSEL
O.K OSAFO BUABENG ESQ WITH HIM
PETRINA DEPHIA ESQ FOR
PLAINTIFF/
APPELLANT/
RESPONDENT.
GODWIN ADJEI-GYAMFI ESQ WITH HIM
AGYENIM ADJEI BOATENG FOR 2ND
AND 3RD
DEFENDANTS/RESPONDENTS/APPELLANTS
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