HOME  JUDGEMENT OF THE COURT OF APPEAL

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JUDGMENT

ESSILFIE-BONDZIE JA.:

The facts in this appeal are simple and straight forward. The plaintiff took out writ for declaration of title, recovery of possession of the land in dispute, damages for trespass and perpetual injunction. The suit was instituted on the 19th July 1991.  Pleadings were closed before the Circuit Court with the taking of summons for Directions on the 29th January 1992.

Subsequently there was on application for amendment of the title of the suit on the 24.3.92.  It is on record that there were on further proceedings from the 24.3.93 until 25.1.94 when plaintiff filed a motion ex-parte for substituted service.

In his judgment the learned trial judge also buttressed these facts. He commenced his judgement thus:—

“The suit was instituted some where in 1991 and for no apparent reason went into abeyance until June 1995 when counsel for the plaintiff caused it to be reviewed.”

On the 12th July 1994 however, the Court granted on ex-parte application for substituted service filed by the plaintiff.  In making the order for substituted service the learned trail judge said:—

“By Court

The application granted as prayed for service of process can be effected in the following manner:—

(1) A copy to be posted on the notice board, 28th  February Road Court complex, Accra.

(2) A copy to be posted on the wall of the structure of the land in dispute.

(3) A copy to be posted on the Notice Board High Court, Accra.

(4) A copy to be sent by Registered post to Barsbury Chambers, Accra, the Last known address of Counsel for the defendant. Hearing notices to be posted should read 18/8/94”

The Record of proceedings disclosed that on the 6th day of July 1995, when the Court assembled to hear the case neither the defendant nor his counsel were present.  The learned trial judge however proceeded to hear the suit by taking evidence from the plaintiff.  The plaintiff gave his evidence and closed his case on the same day.  The record indicates that the case was thereafter adjourned to the 10/7/95 for the defendant to open his case. There was no order that the defendant should be served with a hearing notice.  There is also no proof that the defendant was served with a notice that the case had been adjourned for him to open his defense on the 10/7/95.  On the 10/7/95 as it should be expected neither the defendant nor his counsel appeared. The Court nevertheless adjourned the case to the 28/7/95 for judgment. On the 26/7/95 the learned judge gave judgment to the plaintiff on all his reliefs.

On the 20/12/95 the defendant filed motion on notice to set aside the said judgment.  On the 14th March 1996 the trial judge dismissed the application.  This provoked the appeal in this Court. The defendant/appellant (who will hereafter be referred to as the defendant) had challenged the Order refusing to set aside the default judgment on a number of grounds. The main grounds, which I consider relevant to this appeal, are firstly, Ground 1 of the additional grounds of appeal which reads:—

“That the learned trial judge erred in law when he purported to continue proceedings without satisfying himself that plaintiff/respondent (who hereafter be referred to as the plaintiff) had compiled with the mandatory provisions of Order 64 Rule 12 of the High Court (Civil) Procedure Rules 195 4 LN 140”.

Order 64 rules 12 stipulates that where there has been no proceedings for one year in a cause or matter since the last proceedings, the party who desires to proceed must give a month’s notice to the other side of his intention to proceed—see Ogwan vrs Hansa (1971) 2 G.L.R. 195.

As already sand summons for direction was taken in this case on the 29/1/92.  On the 24-3-92 an application for amendment of title of the suit was granted at the instance of the plaintiff. It is also on record that from 24-3-92, until the 25-1-94 a period of more than one year when the plaintiff filed a motion ex-parte for substituted service there was no further proceeding. In the face of the mandatory requirement of Order 64 Rule 12 which enjoins him, in the circumstances he found himself, the plaintiff ought to have filed a notice of intention to proceed with the action and have same served on the defendant.  Having failed to obey the said Order the plaintiff could not validly move the Court to go on with the proceedings.  The trail judge erred when he proceeded to grant the Order for substituted service on the 12-7-94 and I so hold.

Ground 3 (b) of the original ground of appeal also reads “ the learned erred in law when he held that there has indeed been substituted service effected on Appellant by registered mail.”

On this question of service of hearing notice on the defendant the trial judge had this to say “The suit was instituted some where in 1991 and for no apparent reason went into abeyance until June 1995 when counsel for the plaintiff cause it to be reviewed. At an earlier part in time Defendant was served by substituted service, the effect of which was to remind him of the pendency of the suit in Court. Nothing was however heard of the defendant, the Court assumed regularity of procedure therefore when finally counsel for the plaintiff applied to have plaintiff to be heard, the Court had no other choice but to hear him”.

A look at the order of substituted service made by the Circuit Court indicates that, the order is silent as to the sitting date after the order had been compiled with. The order was made on the 12th  of July 1994 and although the Court subsequently sat to hear the case on the 6th of July 1995, there was no mention anywhere in the Order for substituted service that the case had been adjourned to the 6th July 1995 for hearing.  Besides there was no proof whatsoever before the trial judge on the 6th  July 1995 that substituted service of any process had been effected on the defendant.

In the case of Re Yendi Skin Affairs, Andani vs. Abudulai (1982-83) G.L.R. 1080 SC it was held that where the issue of service of a document became crucial in the determination of a matter, as in the instance case, the party alleging service or relying on the service for success assume the duty to prove it strictly.

In this case on the 6th July 1995 when trial judge proceeded to hear the case in the absence of the defendant and his counsel there was no proof by the plaintiff that service of any process had been effected.  There was no proof that the order for substituted service had been complied with by the plaintiff or the bailiff. Further more there was no record before the trial judge by way of any certificate that service had been effected.

It is pertinent to observe also that on the 6th July 1995 when the plaintiff closed his case after giving evidence the trial judge adjourned the case to the 10/7/95 for the defendant to open his defense. He however failed to make an order that hearing notice be served on him. Any yet when on the said adjourned date neither the defendant nor his counsel appeared the trial judge on his own, closed the case for the defendant and went on to give judgment for the plaintiff. I hold that the trial judge went wrong when he proceeded to hear evidence at a time when there was no record before him that hearing notice had been effected on the defendant.  It is a cardinal principle of law that a party must only be condemned behind him, if he fails to respond to clear invitation to him to be heard on the matter, in other words he is entitled to a notice of the trial.  In the case of Williams vrs. Williams (1834) 2 Dewl 350 where a verdict was obtained in the absence of the defendant on account of no notice of trial being given, the Court set the verdict aside, though the defendant did not swear positively to a good defense on the merits.

In view of these matters convassed above, I hold that the defendant not having been served with hearing notices to attend trial on the 6th July 1995 and the 10/7/95 when the case was adjourned for judgment, the proceedings of the 6th July 1995 and the 10th July 1995 were null and void and of no effect.

The judgments of the 26th July 1995 ex-debits justitial must be set aside see Mosi vrs. BAGYINA (1963) G.L.R. 337 SC.  The trial judge ought to have set it aside when the defendant applied to have it set aside.

I would accordingly allow the appeal and remit the case to the Circuit Court for hearing denovo.

A. ESSILFIE-BONDZIE

JUSTICE OF APPEAL

TWUMASI JA.:

I agree

P. K. TWUMASI

JUSTICE OF APPEAL

ARYEETEY JA.:

I also agree

B. T. ARYEETEY

JUSTICE OF APPEAL

COUNSEL

MR. J.D. CLOTTEY-SEFA FOR DEFENDANT/APPELLANT

MR. ASUMA NELSON FOR THE PLAINTIFF/RESPONDENT