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Practice and Procedure –
Capacity - Liability for the
debt - Terms of payment -
Summary Judgment - whether or
not the summary judgment was
within the scope of Order 14 of
CI 47 – whether or not the court
was right in making an award for
a sum different from that
claimed by the plaintiff - Order
14 rule 5(1) (a) of the High
Court Rules
HEADNOTES
We have before us an appeal from
the decision of the Court of
Appeal, which upheld the
judgment of the trial High Court
in favor of the plaintiff for
summary judgment against the
defendant on part of the claim.
The defendant’s main complaint
before us relates to the refusal
by the trial court to grant him
leave to defend the action and
arising therefrom the award of a
figure different from that
endorsed on the writ of summons.
By the judgment of the Court of
Appeal, the position was
reiterated that the defendant’s
statement of defence by which
she sought to show cause against
the application for summary
judgment disclosed no triable
issues.
HELD
The above words are free from
any complexity in terms of their
meaning and removes any doubt as
to the authority of the learned
trial judge to allow by way of
summary judgment an award which
is less than that which was
claimed in the action. The
amount awarded under the summary
judgment properly in ordinary
and technical legal usage
belongs to that which may be
described as “part of” within
the meaning of Order 14 rule
5(1) (a) of the High Court
Rules. Having disposed of the
issues turning on the grounds
argued in the appeal herein in
the negative, the result is that
the instant appeal fails and it
is hereby dismissed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
rules, 2004, CI 47
Evidence Act, NRCD 323.
CASES REFERRED TO IN JUDGMENT
Armah v Hydrafoam Estates Ltd
[2013-2014] 2 SCGLR 1551
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
SOGBODJOR WITH KWEGYIR AGGREY
FOR THE PLAINTIFF/ RESPONDENT/
RESPONDENT.
THADDEUS SORY WITH KWAKU
ANSAH-ASARE FOR THE DEFENDANT/
APPELLANT/ APPELLANT
GBADEGBE, JSC:-
We have before us an appeal from
the decision of the Court of
Appeal, which upheld the
judgment of the trial High Court
in favor of the plaintiff for
summary judgment against the
defendant on part of the claim.
The defendant’s main complaint
before us relates to the refusal
by the trial court to grant him
leave to defend the action and
arising therefrom the award of a
figure different from that
endorsed on the writ of summons.
In these proceedings, for
reasons of consistency, I shall
refer to the parties by the
designation that they bore in
the trial court. By the
judgment of the Court of Appeal,
the position was reiterated that
the defendant’s statement of
defence by which she sought to
show cause against the
application for summary judgment
disclosed no triable issues.
Before
proceeding with the appeal
herein, the observation is made
that it is quite plain from the
record of appeal that the
parties and to some extent the
court exercised unusual latitude
regarding the nature and scope
of Order 14 applications
resulting in the parties taking
some steps in the proceedings,
which may be described as
unauthorized. A quick reference
may be made to one such step
namely an application filed by
the defendant to dismiss the
application for summary
judgment. It is trite learning
that at the hearing of an
application for summary
judgment, one of the of the
orders available to the court at
the hearing under the High Court
(Civil Procedure) Rules, CI 47
of 2004 is an order of dismissal
of the application and
accordingly it makes no sense
that a formal application was
made by the respondent to the
said application for an order
dismissing the application. It
being an application, it stood
either to be granted or refused
having regard to the affidavit
evidence placed before the trial
judge. It is unfortunate to
observe that at certain times in
the course of the proceedings
had in the trial court, the
learned trial judge lost control
of the management of the case, a
situation that had adverse
effect on the pace of the
litigation and accounts for the
length of time that such a
simple matter took before him.
Regarding the
steps preceding the hearing of
the application under Order 14,
the plaintiff who had previously
filed an application for summary
judgment that was pending before
the trial court must have been
compelled by the challenge to
his capacity to take out an
application for directions under
Order 32 as the point relating
thereto cannot be conveniently
dealt with under an application
for summary judgment. As the
parties to an action cannot have
a point of law arising on the
pleadings conveniently disposed
of before directions are taken
in the matter, there was some
merit in the approach adopted by
the learned trial judge which
allowed the parties to have the
preliminary point of law
touching the plaintiff’s
capacity to be determined before
the hearing of the application
filed under Order 14 of the High
Court (Civil Procedure) rules,
2004, CI 47. That step has been
the basis of objection by the
defendant, as in her view, it
tended to move the matter from
one fit for a summary
determination to one requiring a
full-scale trial. However, the
course of proceedings had in the
trial court was necessary to
enable the issue of capacity
that stood in the way of the
Order 14 application to be dealt
with before it was heard. Thus,
it is clear that notwithstanding
the fact that an application for
directions was filed, its
purpose was to enable the issue
of capacity of the plaintiff
that was under challenge to be
determined and although it seems
at first blush that something
was amiss procedurally, a close
scrutiny of the proceedings
contained in the record of
appeal reveals that it was a
case - management technique that
opened the way for the hearing
of the pending application for
summary judgment. Reading Order
14 in its entirety, one reaches
the conclusion that it was not
intended to cater for a point of
law such as turned on the
pleadings in this case; neither
has the said point been the
subject of a previous
determination such as to provide
us with some guidance in the
matter. Being a matter of
procedure, the paramount
consideration is whether the
course of proceedings adopted by
the learned trial judge enabled
the “ultimate issue’’ to be
decided in the matter without
occasioning injustice to either
party to the cause. In this
regard, we must be guided by the
overriding objective of the High
Court (Civil Procedure) Rules,
CI 47 which provides as follows:
“These Rules shall be
interpreted and applied so as to
achieve speedy and effective
justice, avoid delays and
unnecessary expense, and ensure
that as far as possible, all
matters in dispute between the
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any such
matters avoided.”
Regarding
the suggested approach, the
decision of this court in the
case of Armah v Hydrafoam
Estates Ltd [2013-2014] 2
SCGLR 1551. At page 1561 of the
judgment, Benin JSC delivered
himself thus:
“We take note of the fact
that in view of rule 7(10) of
Order defendant of CI 47, the
trial court could have gone
further to record the fact that
the parties had shifted their
positions having regard to the
issue they had agreed to be
tried in the sense that the
plaintiff was no longer asking
for a restoration of the unpaid
for land, that is the
alternative relief asked for and
on the other hand, the defendant
had abandoned the claim that it
had paid for the entire land.
But in this case, there was no
injustice caused to either party
as both sides agreed to the
entire process and fully
co-operated with the trial
judge……………………”
As was the
situation in the Armah case, the
parties herein took full part in
the proceedings and co-operated
fully with the court and in my
view the proceedings had not the
slightest appearance of an
action in which the ends of
justice were not well served.
The disposal
of the issue of capacity in the
matter by the trial court
necessarily implied a finding
that the plaintiff had a cause
of action vested in him
regarding the subject matter of
the plaint, including the issue
of taking the benefit of the
contract between the defendant
and the entity on whose behalf
he was pursuing the claim. The
record of appeal reveals that
after the determination of the
issue of capacity, the matter
was adjourned for the hearing of
the application for summary
judgment, which was heard and
granted with the defendant
appealing to the Court of Appeal
That appeal having failed, the
defendant is now before us by
way of a further appeal.
Although the defendant promptly
appealed against the ruling on
the issue of capacity, she did
not take any further step to
have the future course of the
proceedings stayed and so there
cannot be any substance in any
complaints regarding the hearing
of the application under Order
14 of CI 47 for summary
judgment.
Turning
attention to the appeal, it is
noted that the defendant has
raised by way of complaint
against the decision of the
learned justices of the Court of
Appeal on three main grounds
that were argued as follows:
(a)
The court below erred and
misdirected itself when it held
that the learned trial judge was
right in granting summary
judgment when the defendant’s
defence raised triable issues on
the pleadings.
(b)
The court below erred when it
failed to hold that the trial
court exceeded its jurisdiction
when it granted the Respondent’s
application for summary
judgment.
(c)
The court below erred when it
held that the books of Cachecorp
Pty were ceded to the Plaintiff
and the defendant was estopped
from denying the debt.
The above
grounds of appeal were
substantially argued by the
defendant and refuted by the
plaintiff. Observation is made
that although the defendant made
considerable submissions on the
said grounds, the issue before
us for decision turns simply on
the question whether the summary
judgment was within the scope of
Order 14 of CI 47 and also
whether the court was right in
making an award for a sum
different from that claimed by
the plaintiff. The question of
the cession of the books of
Cachecorp Pty to the plaintiff
is matter which is inextricably
woven with the issue of the
defendant’s liability for the
debt and thus for reasons of
convenience the two grounds
numbered above as (a) and (c)
will be subsumed under the
question of liability under the
summary judgment while that
related to the award and
numbered as ground (b) will be
treated separately. I shall
commence the consideration of
the issues from the question of
the summary judgment that was
entered against the defendant.
The gist of
the said grounds is that the
statement of defence raised
triable issues. In their
decision, the learned justices
of the Court of Appeal came to
the view that having regard to
the conduct of the defendant in
accepting liability for the debt
and not only proposing terms of
payment but also making some
payment to the plaintiff, she
was estopped from denying the
existence of the debt. After
giving careful and anxious
consideration to the issues
raised regarding the question of
liability under Order 14, I
hereby express my agreement with
the decision of the learned
justices of the Court of Appeal.
It is unacceptable that the
defendant who accepted absolute
liability for the amount in
respect of which the writ herein
issued and offered to pay the
indebtedness in instalments but
failed so to do can be said
either in conscience or
principle to have a defense to
the action herein. The
acceptance of liability by the
defendant in the circumstances
of this case created a
conclusive presumption under
sections 24 and 26 of the
Evidence Act, NRCD 323. By the
said provisions, we are
precluded from receiving
evidence to the contrary of the
presumed fact which in this case
is the admission of liability by
the defendant. It repays to
refer to the said provisions as
follows:
SECTION
24(1)
“Where the
basic facts that give rise to a
conclusive presumption are found
or otherwise established in the
action, no evidence contrary to
the presumed fact may be
considered by the tribunal of
fact.
SECTION
26:
Except as
otherwise provided by law,
including a rule of equity, when
a party has, by his own
statement, act or omission,
intentionally, and deliberately
permitted another person to
believe a thing to be true and
to act upon such belief, the
truth of that thing shall be
conclusively presumed against
that party or his successors in
interest in any proceedings
between that party or his
successors in interest and such
relying person or his successors
in interest.”
The effect of
the acceptance of liability and
the related steps taken thereon
by the defendant renders the
subsequent issue of the cession
of the books of Cachecorp Pty to
the plaintiff, an assertion that
was not made in good faith as
that assertion cannot co-exist
with the admission of liability
on which the plaintiff placed
reliance. The statutory
preclusion arising out of the
conclusive presumption aside, it
is difficult to comprehend how a
person who alleges that he owes
A but not B can accept liability
for the payment of the debt to
B. As the Evidence Act precludes
us from considering a view of
the facts contrary to that
arising from the acceptance of
liability by the defendant,
there cannot be any legitimate
complaint directed at the
finding of liability of the
defendant by the intermediate
appellate court. Going further,
it may be said that in the
absence of any showing by the
defendant that the entity with
which it had contracted denied
the authority of the plaintiff
to sue her, the issue of
capacity which was raised in her
defence to the action was not
credible but a bait which was
thrown into the matter for the
mere purpose of having a
semblance of a defence to the
action, a sham to say that was
intended to delay the trial of
the action and undermine the
rationale for Order 14.
Then comes
the question of the amount
awarded. Suffice it to say that
as the amount allowed by the
learned trial judge under the
summary judgment was lower than
that which was claimed, the
learned trial judge in making
the award preferred the amount
contained in exhibit “M” instead
of the entire amount being
claimed by the plaintiff and in
respect of which the application
was filed. His award was the
result of the lawful exercise of
a discretion conferred on the
court under Order 14. Therefore,
there appears to be no reason
for the complaint. Indeed,
Order 14 rule 5 of CI 47
provides authority for the trial
judge to make an award, which is
part only of the amount claimed.
Sub-rule 1 of the said rule
provides:
“On the hearing of the
application the Court may
(a)
give such judgment for the
plaintiff against the defendant
on the relevant claim or part of
the claim as may be just having
regard to nature of the remedy
or relief sought…………….”
The above words are free from
any complexity in terms of their
meaning and removes any doubt as
to the authority of the learned
trial judge to allow by way of
summary judgment an award which
is less than that which was
claimed in the action. The
amount awarded under the summary
judgment properly in ordinary
and technical legal usage
belongs to that which may be
described as “part of” within
the meaning of Order 14 rule
5(1) (a) of the High Court
Rules.
Having
disposed of the issues turning
on the grounds argued in the
appeal herein in the negative,
the result is that the instant
appeal fails and it is hereby
dismissed.
N.
S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
YEBOAH,
JSC:-
I agree with the conclusion
and reasoning of my brother
Gbadegbe, JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
APPAU,
JSC:-
I agree with the conclusion
and reasoning of my brother
Gbadegbe, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion
and reasoning of my brother
Gbadegbe, JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
KOTEY,
JSC:-
I agree with the conclusion
and reasoning of my brother
Gbadegbe, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PATRICK SOGBODJOR WITH KWEGYIR
AGGREY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
THADDEUS SORY WITH KWAKU
ANSAH-ASARE FOR THE
DEFENDANT/APPELLANT/APPELLANT |
