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J U D G M E N T.
ANIN YEBOAH JSC
The appellant herein was the
plaintiff in a suit at the High
Court, Kumasi. Her claim
against the respondent herein as
defendant at the High Court was
for the following reliefs:
“1. An order for the payment of
the sum of US$130,000 (One
Hundred and Thirty Thousand
United States Dollars) being the
price agreed upon by the
plaintiff and Defendant herein
pursuant to a contract entered
into between the parties herein
for the defendant to supply to
the plaintiff herein second-hand
clothing between 26th
December 2004 and April 2005
which clothing the defendant
failed to deliver to the
plaintiff herein and which
amount the defendant has failed
to refund to the plaintiff
herein despite repeated demand.
2. Interest on the said sum of
US$130,000.00 (One Hundred and
Thirty Thousand United States
Dollars) from May 2005 till date
of final payment at the
prevailing commercial bank rate”
The respondent entered
appearance but failed to file
any statement of defence within
the statutory period provided
under the rules of court. The
appellant filed a motion for
judgment which the trial court
granted on the 14/12/2005. The
nature of the judgment entered
will be discussed later in this
judgment. Upon the filing of an
Entry of Judgment by the
appellant the respondent filed a
motion for stay of execution and
further order to pay the
judgment debt by installments.
There were several applications
which do not appear to be
material in the determination of
this appeal.
The respondent herein
subsequently filed a motion to
set aside the judgment on stated
grounds that as the motion for
judgment was fixed for the
13/12/2005 and adjourned to the
14/12/2005 without notice to the
respondent the judgment so
obtained was a nullity.
The learned trial judge after
hearing arguments from both
sides on the 9/06/2006 dismissed
the application with cost. He
concluded his ruling as follows:
“It is therefore my finding that
the non-service of a hearing
notice on the applicant to
appear the next day was not so
vital as to render the
application that was granted a
nullity. Bluntly put, there was
no substantial miscarriage of
justice against the applicant by
that non-service. I award cost
of ¢3,000,000.00 to the
respondent”.
The respondent herein lodged an
appeal against the ruling at the
Court of Appeal on the
13/07/2008 to set aside the
judgment of the trial court
together with the ruling of
9/06/06 and ordered a retrial
before a court differently
constituted.
At the Court of Appeal, the
point was raised that as the
motion for the judgment was
fixed for 13/12/2005 but nothing
on record happened on that day,
without notice to the parties
that the motion was to be moved
on 14/12/2005, the judgment so
obtained was irregular. The
Court of Appeal per Gyaesayor,
J.A said as follows:
“With the doubts created in
respect of service and date of
judgment, the judgment ought to
have been set aside. Further to
this, it is clear that the
matter was fixed for 13/12/2005
but changed without notice to
the appellant to 14/12/2005 when
judgment was pronounced against
her”
In the conclusion to the
judgment the learned justice of
the Court of Appeal summed up as
follows:
“Since the service on the
appellant is shrouded in
mystery, the requirement in the
above cited authority cannot be
said to have been fulfilled and
therefore runs contrary to the
view of the court and thus
leading to a miscarriage of
justice”
The appellant herein who was the
plaintiff at the trial High
Court has appealed against the
judgment of the Court of Appeal
for the judgment of the High
Court to be restored.
The grounds of appeal as stated
in the notice of appeal are as
follows:
1.
The judgment is against the
weight of evidence.
2.
In the circumstances that the
judgment of the High Court,
Kumasi dated 14/12/2005 was
obtained by summary procedure it
was the
defendant/appellant/respondent
herein who ought to have applied
to have the same set aside
within 14 days of being served
with the Entry of Judgment filed
herein.
3.
The defendant
/appellant/respondent herein
having applied for installment
payment of the judgment debt
entered by the high court on
14/12/2005 Kumasi clearly did
not suffer miscarriage of
justice.
The first ground of appeal to
us is completely misplaced given
the facts of this appeal. The
judgment obtained at the High
Court Kumasi did not go beyond
the close of pleadings as no
statement of defence was even
filed. It was a default
judgment in every sense of the
word, but learned counsel for
the appellant in the affidavit
in support of the application
filed at the High Court stated
in paragraphs 4 and 5 thereof as
follows:
4.
That the defendant by his
solicitors Messrs Minka-Premo &
Co entered appearance.
5.
That the defendant has admitted
owing me in the sum of US$92,600
(Ninety –Two Thousand Six
Hundred United States Dollars)
It appears that at the time the
motion for judgment was filed,
indeed the respondent who was
the defendant had not filed any
defence on record or made any
admission on oath or otherwise
in any manner or form. It thus
sounds strange for counsel for
the appellant to appeal against
the judgment on the grounds that
the judgment was against the
weight of evidence. In our
opinion this ground is clearly
misconceived and same is
dismissed as unmeritorious.
On the second ground there
appears to be a confusion of
thought on the nature of the
judgment which was obtained. In
the Entry of Judgment filed
pursuant to the judgment,
counsel framed it as if the
judgment was a summary
judgment. Summary judgment and
default judgment are
conceptually different.
A summary judgment is a judgment
on the merits even though it is
obtained by a formal motion
without a plenary trial. It is
a judgment granted on the simple
grounds that the respondent to
the application has no defence
to the action or part thereof or
any reasonable defence to be
allowed to contest the case on
the merits to waste time and
expense.
A default judgment, on the
contrary, though obtained by
motion is not a judgment on the
merits but a judgment based
solely on the inability of a
respondent to the application to
file appearance or defence
within the statutory periods set
down by the rules. Under the
High Court Civil Procedure
Rules, CI 47, the differences
between the two are well spelt
out and covered by different
orders in the CI 47. Whereas
summary judgment is provided for
under Order 14 of CI 47, default
judgment, after entry of
appearance is provided for under
Order 13 of the same CI 47.
The record of proceedings for
the day the judgment was
obtained is reproduced below:
“This is an application pleading
for an order entering judgment
against the defendant who has
failed to file a statement of
defence. Counsel moves the
application filed on 30/11/05.
Counsel submits that the
defendant has failed to file a
statement of defence. Counsel
thus prays that the application
filed on 30/11/05 be granted.”
“BY COURT:
The instant application was
served on lawyer Oppong of
Minkah-Premoh & Co on 1/12/05.
No affidavit in opposition has
been filed. No statement of
defence has to-date been filed.
I hereby enter final judgment
for the plaintiff for the
sum of ninety two thousand six
hundred thousand dollars
(US$92,600.00). I award
interest on the above –mentioned
sum from May, 2—5 till today. I
ward cost of ¢90,000,000 to the
plaintiff. (Emphasis ours)
Sgd. KWAME ANSU-GYEABOUR
JUSTICE OF THE HIGH COURT”
The judgment entered by the
learned trial judge and the
application by the counsel for
the applicant clearly
established that it was not a
summary judgment but a judgment
in default of defence. As the
claim was a liquidated one the
learned trial judge was enjoined
by Order 13 rule 1 of CI 47 to
enter final judgment in default
of defence; which is not a
summary judgment, but a judgment
in default of pleading.
After careful perusal of the
Entry of Judgment and the
motion, it is clear that the
motion did not specify whether
it was for a summary judgment or
motion on notice for judgment in
default of defence. For a
fuller record the relief sought
on the notion is reproduced as
follows:
“MOTION ON NOTICE”
“PLEASE TAKE NOTICE that this
Honourable Court will be moved
by Merssrs TOTOE LEGAL SERVICE
counsel for and on behalf of the
plaintiff/applicants herein
praying this Honourable court
for an order entering judgment
in favour of the
plaintiff/applicant herein
against the defendant/respondent
herein for the following
reliefs”
Nothing in the body of the
motion shows that the
application was for summary
judgment. The practice is that
in application by motion to a
court it is desirable for
counsel filing the motion to
indicate the order and the rule
under which the application is
brought. It is, however, not
mandatory that counsel for the
applicant should state the order
and rule under which an
application is brought. It is
not so fundamental to disable a
court of law in advancement of
substantial justice to determine
an application in the absence of
any order or rule stated on the
face of the motion paper but the
relief sought must be clear and
apparent on its face. See
SHARDEY V ADAMTEY AND
SHARDEY V MARTEY & OR
(CONSOLIDATED) [1972] 2 GLR
380 CA. In any case, Order 81
rule 1 (1) CI 47 could be
applied to cure the defect. See
REPUBLIC V. HIGH COURT,
ACCRA; EX PARTE ALLGATE CO. LTD
[2007 – 08] 2 SCGLR 1041.
The last ground of appeal which
was argued was to the effect
that when the motion for
judgment which was fixed for the
13/12/2005 was adjourned to the
14/12/2005, hearing notice ought
to have been served on the
respondent herein or his
counsel. From the record of
proceedings, it does appear that
on the 13/12/2005 there was no
proceeding before the court. In
the judgment of the Court of
Appeal, His Lordship Gyeasayor
JA who delivered the judgment of
the court was of the view that
the service on the appellant is
shrouded in mystery. As the
High Court did not sit on the
13/12/2005, and there is no
record to that effect, the
motion for judgment was not
adjourned to the 14/12/2005 by
the judge. A court clerk or
Registrar in law does not
exercise judicial power to
adjourn a motion to another
date. If on a particular day a
Registrar or a court clerk
adjourns a motion, it behoves a
judge sitting on the motion to
ascertain from the record
whether parties have notice of
the motion before he should
proceed.
It is, however, the practice in
civil proceedings that if a
court does not sit on a
particular day due to the fact
that the day was declared a
public holiday or for some
reason there was no sitting at
all the cases which ought to
have been called as a result of
the court’s inability to sit are
called the next sitting day.
This practice has gained
acceptance in our civil law and
should be a guiding principle.
In our view, the fact that the
case was called the next day did
not deny the trial court any
jurisdiction to hear the
application.
Another serious procedural flaw
was the default judgment entered
by the court. The appellant who
was the plaintiff had endorsed
her writ for US$130,000.00
together with interest. This
claim was repeated in the motion
for judgment filed on 30/11/2005
but a different amount was
deposed to the affidavit in
support which was US$92,600.00
and the Entry of Judgment filed
pursuant to the judgment stated
the amount as US$92,600.00 with
cost and interest. On record,
no admission in any manner or
form had been made by the
respondent before the judgment
was entered. The motion did not
ask for any judgment or
admissions in any manner or
form. The only admission made
was in the affidavit in support
of the application to pay the
judgment debt by installments
and stay of execution filed on
4/01/2006 which was done some
weeks later after the judgment
on the 14/12/2005. The judgment
for US$92,600.00 was not
sanctioned by any known step in
procedure as it was contrary to
and inconsistent with the one
endorsed on the writ when no
amendment or any admission had
been made prior to the
judgment. To justify his stand,
the learned judge said in the
ruling refusing the motion to
set aside the judgment as
follows:
“But then, in the instant case,
the applicant acknowledged that
he owed the respondent US$92,000
on 4th January,
2006. I reproduce paragraph 4
of the said affidavit: “4. That
my instructions were that I did
not owe the plaintiff the amount
endorsed on the writ of summons
but owned her about $92,000
since I had already supplied her
with some of the goods”
The learned trial judgment
concluded his delivery on this
point as follows:
“More so, after judgment, the
applicant deposed to an
affidavit that he owed the
respondent $92.000. Please, on
conduct amounting to estoppels
see section 26 of the Evidence
Decree (NRCD 323)”
The principle of law governing
judgments in default of
appearance or defence in civil
proceedings is that, the
judgment entered must be for the
actual amount claimed. In the
case of BONSU V. DOE
[1984-86] GLR 778 CA, Jiagge JA
stated the position of the law
when she said at 780 as follows:
“The legal position is that a
judge may set aside a judgment
entered in default either of
appearance to the writ, or of
delivery of a pleading or of
appearance at the trial when the
judgment was entered for a
greater amount than was due
or where there had been breach
of good faith. The judgment
will be set aside ex. debito
justitiae, quite apart from any
consideration whether there was
a good defence on the merits:
See Halsbury’s Laws of England
(3rd ed). Vol. 22
paragraph 1667.
Judgment in default of
appearance should be entered
only for the actual amount due
at the time of signing the
judgment.”
[Emphasis ours]
We think that just as a judge
has no power to enter a judgment
for an amount more than what was
claimed, he equally has no such
power to enter judgment for a
lower figure not asked for in
the proceedings when on record
there was no admission in any
manner or from for the lesser
amount.
In our opinion, the High Court
as a trial court was in error in
not setting aside the judgment
so obtained when his
jurisdiction was invoked to set
aside the judgment on the above
grounds. The lesser amount of
US$92,600.00 was therefore
wrongly entered as no enquiry of
any sort was made by the court
at that stage.
In conclusion, we think the
Court of Appeal was right in
setting aside the judgment and
we affirm the decision.
[SGD]
ANIN YEBOAH
JUSTICE
OF THE SUPREME
COURT
[SGD] DR. S. K.
DATE-BAH
JUSTICE
OF THE SUPREME
COURT
[SGD] J. V. M.
DOTSE
JUSTICE
OF THE SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE
OF THE SUPREME
COURT
[SGD] V. AKOTO-BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL;
AUGUSTUS ANANE-QUEBAH FOR THE
APPELLANT
DR. KWAKU NSIAH FOR THE
RESPONDENT |
