Division: IN THE HIGH COURT, SUNYANI
Date: 30 JUNE 1964
Before: LASSEY J
JUDGMENT OF LASSEY J
This is a motion supported by an affidavit brought under Order 70, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 19541 on behalf of the plaintiff in the above-named suit, asking this court for an order to set aside the proceedings, including the judgment of Bruce-Lyle J. (as he then was) dated 7 June 1963, on the ground that there had been non-compliance with the said Order.
The brief history of the suit terminating in the judgment of the court on 7 June 1963, is as follows: On 2 February 1962, the plaintiff, who is the applicant herein took out an ordinary writ of summons with an accompanying statement of claim against the three defendants, claiming against them special and general damages for trespass and also an order for perpetual injunction in respect of his farm.
On 4 February 1962 appearance was formally entered to the plaintiff ‘s writ on behalf of all the three defendants and a statement of defence delivered on 28 February 1962. In addition the first defendant counterclaimed against the plaintiff for damages and for an order of perpetual injunction to which a reply was delivered on behalf of the plaintiff on 17 March 1962. On 18 April 1962 issues as set out on a summons for directions taken out on behalf of the plaintiff were agreed and settled for trial, and the case was adjourned until 18 May 1962.
On 18 May 1962 counsel for the plaintiff applied to the court to have the said suit and another suit No. L.C. 7/62 entitled Kwadwo Yeboah v. Nana Abrefa VI consolidated and tried together in one trial. This was agreed to by Mr. Ansah-Twum for the defendants, and an order of the court was accordingly made to that effect, and the consolidated suits were then adjourned until 22 May 1962 for a licensed surveyor to be appointed to survey and prepare a survey plan of the area in dispute between the various parties.
On 22 May 1962 Mr. Peprah, counsel for the plaintiff, and Mr. Ansah-Twum who appeared for the defendants, agreed that one Mr. E. T. K. Lawer, a licensed surveyor, be appointed by the court. This was done, and the two consolidated actions adjourned to 22 June 1962 for mention.
From the 22 June 1962 onward there were several adjournments when the consolidated actions came before the court for mention until on 4 February 1963 when entries in the record of the court show that they were fixed for hearing on that date. On 4 February 1963 the consolidated suits were ordered to be adjourned sine die.
On 15 February 1963 the court after hearing an application made an order that the said consolidated suits be re-listed for hearing and that hearing notices be served. Hearing notices were accordingly prepared and issued out from the registry of this court on 18 February 1963 to be served on the various parties and their counsel to appear in court for trial on 15 March 1963. A perusal of the entries in the docket reveals that counsel for the parties were duly served with the hearing notices on 18 February 1963 at Sunyani.
In this court Mr. Victor Owusu argued the motion and contended that as the hearing notice was not served upon the plaintiff personally there was non-compliance with Order 70 and the learned trial judge was wrong in proceeding to hear the action and giving judgment by dismissing the plaintiff’s action.
[His lordship here stated the provisions of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 70, rr. 1 and 2 as set out in the headnote and continued:]
Mr. Ansah-Twum submitted that Order 70 does not apply to the circumstances of this case. Counsel for the respondents further stated that as the judgment delivered on 7 June 1963 was given in default of appearance by the plaintiff he considered that Order 38, r. 18 of the Supreme [High] Court (Civil Procedure) Rules would be the appropriate rule applicable, and that even if the plaintiff-applicant was out of time within the fourteen days after trial as stipulated under that rule, he could still apply under Order 64, r. 6 for enlargement of time within which to apply to the court to set aside the said judgment where the plaintiff did not appear. Although I myself felt inclined to be in agreement with this view of learned counsel for the respondents, Mr. Victor Owusu for the applicant did not seem to be persuaded that Order 36, r. 18 was the proper rule applicable. Counsel contended that before hearing started on 15 March 1963 there had been proper service of the hearing notices, and that, as the record of the proceedings shows, counsel for the plaintiff Mr. Peprah appeared for the plaintiff and asked for further adjournment because the plaintiff was not in court. Counsel therefore concluded that the trial terminating in the judgment delivered by the court on 7 June 1963 cannot be void or defective as steps had been “taken” in the sense that counsel appeared and took part in the proceedings after knowledge of the alleged irregularity in the service of the hearing notice. Mr. Ansah-Twum further pointed out that service of the hearing notice on the solicitor for the plaintiff should be deemed proper and regular service under Order 9, r. 19 (2). The provisions with regard to a service of a process on a solicitor for a party are that “service on the solicitor or recognised agent of the person to be served shall be deemed to be effective service on such person.”
After hearing the helpful arguments of counsel I reserved my ruling until 21 May 1964. Before the date fixed for delivering my ruling my attention was called to the fact that a motion on notice to adduce fresh evidence in respect of this same matter had been filed on behalf of the defendants-respondents as applicants.
The defendants-respondents’ new motion paper and the supporting affidavit stating the grounds on which the application was brought were duly served on Mr. Victor Owusu, counsel for the plaintiff-applicant in the earlier application. After various adjournments at the request of Mr. Victor Owusu who telephoned the registrar to inform him of his inability to turn up and argue the motion himself because of other assignments or engagements in the High Court, Kumasi, on 24 June 1964 I granted the motion and in view of the persistent denial by the plaintiff that he was personally served with the hearing notice I was in doubt as to whether the hearing notice was in fact effected on the plaintiff himself or not. On this date Mr. Owusu Yaw, a partner of Mr. Victor Owusu, appeared for the plaintiff and the matter was again adjourned until 24 June 1964.
Bailiff Acheampong who said he served the plaintiff personally with the hearing notice was called by the court to give evidence on oath in the witness box and was cross-examined by Mr. Ansah-Twum for the defendants. After that I postponed my ruling again until today.
I think, with all respect to Mr. Victor Owusu, counsel for the plaintiff, that Order 70, r. 1 should be read as meaning that any non-compliance with any of these rules, such as, for instance, unsatisfactory service, shall not render any proceedings void, meaning the service of the hearing notice void, unless the court shall so direct. In my view the fact that the counsel or solicitor for the plaintiff was served with hearing notice shows clearly that no question of a defect or irregularity could have arisen which should be regarded as invalidating the proceedings in this case, for service upon counsel was sufficient service within the meaning of Order 9, r. 19 (2). In my opinion no error in procedure was committed. Mr. Victor Owusu appeared to have no adequate reply to Mr. Ansah-Twum’s contention that as the counsel for the plaintiff appeared in court and took part in the proceedings on 15 May 1963 when hearing started and asked for an adjournment, that in itself amounted to “taking steps” in the action with knowledge of the irregularity within the meaning of the second limb of Order 70. A perusal of the record of proceedings before the court on 15 May 1963 shows that counsel for the plaintiff was in court throughout when the first defendant Abrefa Mbobre Bediatuo VI gave evidence in support of his counterclaim—after that counsel for the plaintiff who was still in the court informed the court that he was not at that moment in possession of the plan and applied for an adjournment to call a surveyor to tender another plan. When the hearing resumed on 27 May 1963 neither the plaintiff nor his counsel was present in court when hearing of the evidence of the first defendant’s witness was completed and judgment was reserved until 7 June 1963. The wording of Order 70, r. 2 confirms me in the fact that what is sufficient steps after knowledge of the irregularity must depend on the nature of the irregularity and the circumstances of the particular case. In the instant case, I consider that the appearance in court of counsel for the plaintiff who had been duly served with the writ of summons and who actually applied for an adjournment in order to call a witness constituted sufficient steps, and that the alleged irregularity of non-service upon the plaintiff could not now be complained of. Notwithstanding the service of the hearing notice on the solicitor for the plaintiff, on the facts stated in the affidavit of the defendants, the defendants have in their favour the fact that there was service on the plaintiff of a copy of the hearing notice in pursuance of this court’s order made on 15 February 1963; allegations of this fact are contained in paragraphs 7, 8 and 9 of the affidavit of Kwadwo Abrefa Ansah-Twum sworn to in support of the motion on notice to adduce fresh evidence in opposition to the plaintiff’s application to set aside the proceedings of 7 June 1963. The plaintiff also swore to an affidavit denying these allegations of personal service of the hearing notice upon him.
However, in view of the persistent denial by the plaintiff that he was personally served with the hearing notice as required by the order of this court made on 15 February 1963, and in order to ascertain the truth I considered it desirable to hear evidence.
After hearing evidence from the court bailiff and the plaintiff I admitted into evidence the bailiff’s process book and the affidavit in proof of service together with a covering letter from this court. These show that on 28 February 1963 the plaintiff Kwadwo Fah was personally served with the hearing notice at Krobo Maampehia. Bailiff Acheampong who was then stationed at Wenchi said in his evidence that on 21 February 1963 he was entrusted with four copies of hearing notice for service on the parties to this suit; he said he duly served the hearing notices; he said he knew the plaintiff personally at Wenchi. He said after the issue of the original writ of summons by the plaintiff in this suit, the plaintiff came to see him at Wenchi and informed him about the writ he had caused to be served upon the defendants and requested him to try and serve the defendants in time. He knew that the plaintiff lived at Krobo and so when he received the hearing notices in respect of the same suit about which the plaintiff had come to see him personally he proceeded at once to Krobo to serve the plaintiff with his copy of the said hearing notice; he met the plaintiff in his farming village at Maampehia where he duly accepted service. After that he made the necessary entries on his return in the process book and swore to an affidavit in proof of service upon all the four parties, including the plaintiff.
The plaintiff, on the other hand, denied most emphatically that bailiff Acheampong served him with the hearing notice as he alleged in the witness-box. The bailiff gave his evidence in the most impressive and forthright manner and was never shaken at all, and no particular reason was suggested why in the particular case of this plaintiff the bailiff should have sworn to a false affidavit in proof of service of the hearing notice as far back as on 28 February 1963, long before hearing started on 15 March 1963. On the whole I accept the bailiff’s evidence which satisfies me that he duly served the plaintiff personally with the hearing notice on 27 February 1963 at Maampehia and I do so hold.
The plaintiff in this court strikes me as the most notorious and downright liar I have ever come across in these courts, and I have no hesitation in rejecting his unreliable and evasive denial that he was served personally. He even had the effrontery to deny in cross-examination suggestions put to him from the court notes made by the trial judge in the record of proceedings; he denied ever instructing his counsel who appeared when the case was called to ask for an adjournment on the ground that his mother had died, and that he was prepared to pay costs awarded because of the adjournment. He however agreed paying the costs so awarded by the court when the adjournment sought for on his behalf was granted.
Rule 1 of Order 70 would appear at first sight to give the court a complete discretion in the matter. But it has been held that only applies to proceedings which are voidable, not to proceedings which are a nullity for those are automatically void and any person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the court without invoking the rule.
The plaintiff here sought to say that the hearing notice was never served upon him. This is the same as saying that the proceedings were merely voidable. In this case the court has a discretion whether to set the judgment aside or not. It will do so if justice demands it but not otherwise. Meanwhile the judgment remains good and binding for all that has been done under it. Where there is an irregularity in the proceedings and that irregularity can be cured the court will certainly re-open the whole of the matter and set aside the proceedings. In this particular case, I have already held that there was sufficient service of hearing notices upon counsel for the plaintiff and the plaintiff himself personally; furthermore, even if there was any irregularity in the service of the hearing notices, it has been shown to my satisfaction that counsel for the plaintiff took some fresh step in the proceedings in court after knowledge of the alleged irregularity. Could counsel or the plaintiff afterwards, in justice, complain that there was a flaw in the proceedings which eventually terminated in the judgment of the court on 7 June 1963?
In circumstances such as those in this case I think it would not be right to set aside the judgment which had been given in favour of the defendants and which has been proved to have been obtained regularly when the plaintiff failed to appear in court though served. The plaintiff knew that the case was fixed for hearing on a particular date but chose not to attend court. The plaintiff was guilty of quite unjustifiable delay and has very little sympathy from me in appealing to me to re-open the matter for him. Applying the salutary maxim interest reipublicae ut sit finis litium I think it would be right to put an end to this action by refusing the plaintiff’s application to set aside the judgment of Bruce-Lyle J. (as he then was) since it appears to me, without attempting to assess the plaintiff’s probable chances of success in the action, that judgment was regularly delivered and is therefore good. The application to set aside the judgment is refused with 25 guineas costs in favour of the defendants.
DECISION
Application dismissed.
N.A.Y.
