HIGH COURT, KUMASI
Date: 18 DECEMBER 1974
KORANTENG-ADDOW J
CASES REFERRED TO
(1) Attoh-Quarshie v. Okpote [1973] 1 G.L.R. 59.
(2) Hamp-Adams v. Hall [1911] 2 K.B. 942; 80 L.J.K.B. 1341; 105 L.T. 326; 27 T.L.R. 531; 55 S.J. 647, C.A.
(3) Steers v. Rogers (1891) 7 T.L.R. 183.
NATURE OF PROCEEDINGS
APPLICATION to set aside a default judgment on the ground of failure to comply with Order 9, r. 17 of L.N. 140A of 1954. The facts are sufficiently set out in the ruling.
COUNSEL
Ayim Owusu for the plaintiffs.
S. Kwami Tetteh for the defendant.
JUDGMENT OF KORANTENG-ADDOW J.
The three plaintiffs in this case brought their action against this common defendant. They were infants and brought their action through their next friends. All were passengers on a vehicle belonging to the defendant; they were involved in an accident and suffered various types of injuries. When the writ was served on the defendant, it did not appear to it. An application was subsequently filed for the purpose of entering an interlocutory judgment against it for failing to enter an appearance and the application was granted. All that happened in 1971, and the interlocutory judgment was entered on 29 November 1971. A date was fixed and damages were eventually assessed, the date on which it was done being 17 February 1971. Final judgment was given in the matter on 17 January 1974. It is when an attempt was made to enforce the judgment that the defendant came to court to apply to set it aside.
It would seem that the defendant finds the judgment against it as far as the first plaintiff is concerned unassailable. Its chief complaint is that at one stage in the proceedings I ordered the second and third plaintiffs to be struck out of the case. Whatever judgment was entered, the defendant contends, therefore, should not affect those two. The second objection is also that under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 9, r. 17 the plaintiffs did not see to it that the service of
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the writ on the defendant was endorsed on the writ as required. Therefore any steps taken on the writ were invalid. The rule reads:
“The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This rule shall apply to substituted as well as other service.”
In support of that contention Mr. Tetteh, learned counsel for the defendant, tried to find some support from the authority of Attoh-Quarshie v. Okpote, a decision given by Hayfron-Benjamin J. (as he then was) at the High Court, Accra, on 17 April 1972 and reported in [1973] 1 G.L.R. 59. He only in fact wished to persuade me by it as he well knew it was not binding on me.
What learned counsel urged on the court on the question of the striking out of the second and third plaintiffs from the case is true and his point would have been very potent. What he failed to realise, however, was that before I took evidence in the matter I had them re-admitted into the case. I was in fact not clear in my mind as to the propriety of the three bringing the action together. I did in fact express that doubt openly in court but I also promised to look into the matter again, which I did. My view at the time was that it would have been proper for the three actions to have been brought separately and then consolidated. That view certainly ran counter to authority, no doubt against the fundamental principle of avoiding multiplicity of suits. In fact Order 16 of L.N. 140A is specific on the point. As the second and third plaintiffs were re-admitted the argument of learned counsel on that point must fall overboard.
On the second point made, namely, that since a “mandatory” provision of the rules has been infringed the suit must of necessity be dismissed I have this to say: first of all, I would say that the rules of court were made for the smooth administration of the law. It is not their purpose to be a machinery for defeating the very purpose for which they were fashioned. They are, or ought to be, servants, not masters. If a writ has been served on a defendant and an affidavit of service has been sworn to by the bailiff effecting service I would count a rule which says that after it had been served, unless the service has been endorsed on the original writ at the registry any action taken on the matter must be a nullity, as one of the proverbial occasions which make some people, metaphorically speaking, group the law with the assinine species of God’s creation. After all the court’s records are not kept by the parties to a suit and the sort of entry complained about is not in this country the responsibility of a plaintiff to make. Again, not unlike in England, Order 9, r. 18 (1) provides that, “Service of a writ of summons, and of any petition, notice, order or other document of which service is required shall be made by a bailiff.”
Under the rules any plaintiff wishing to take any such steps as those taken in this case is required to make a search and the plaintiff in the case did make a search. In any case I would place much more reliance on an
[p.13] of [1975] 1 GLR 10
affidavit of service than on the mere endorsement of it on the original writ. At most both methods should serve the same purpose. Sight must not be lost of the fact that the courts can always exercise jurisdiction over any person who happens to be in court even though a process has not been served on him. A fortiori, I am of the view that once a defendant has been served with a writ and he appears in court even if no affidavit of service has been filed and the case is ripe, and indeed fixed, for hearing, the court can hear the matter involving him. I think this is common sense, and after all is the law not founded on common sense? The point we are dealing with is, however, the question of proceedings when no appearance has been entered. It would seem that the rule aims only at obviating the doubt as to whether service has indeed been effected on a defendant.
Generally speaking, it is my considered view that strict adherence to the mere wording of the rule would stultify the working of the whole machinery of the administration of justice in the country. I do not think that a close examination of all the writs at the different registries in this country will leave one case unsullied by this rule. And that is because of the manner in which service of processes in this country is done. These writs and other processes are normally posted to the remote parts of the country to bailiffs of the lower courts to serve them. How would one expect them after effecting service, to come down from say Paga or Ho to Kumasi solely for the purpose of making the endorsement envisaged in the rule, in Kumasi? This process will definitely stultify the administration of justice in the country. It is my view, as I have stated above, that an affidavit of service which is normally the method of proof of service in this country should satisfy the requirement of Order 9. When there are doubts or arguments about the service of a writ the courts must certainly examine the circumstances to avoid injustice, for one can envisage a situation in which an unscrupulous bailiff may swear to a false affidavit. An endorsement made in compliance with the rule under discussion may even be false. What then?
There certainly must be some wisdom in the rule and it must not have been for nothing that the framers of the rules inserted it in the rules. It has been couched in mandatory terms, but it would seem that the rule is not to be interpreted strictly. Although it states in part, “every affidavit of service … shall mention the day on which such endorsement was made,” the form of the affidavit of service in this country makes no such demand. This is the form used:
Before Me,
(Station)
“IN THE……………………………………COURT
………………………………………………..REGION
………………………………………………..PLAINTIFFS versus
………………………………………………..DEFENDANTS
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I,…………………………………………Bailiff attached to the…………………..Court at…………………………………
make oath say as follows:—
1. That on the…………………………………….day of…………………………. 19…………..I was entrusted for service
in the with………………………………………………………for service in the above-mentioned case.
2. That on the……………………..day of…………………………. 19……..at………….a.m. p.m., I duly served the
above named document on…………………………personally at………………………………………….
3. That I swear to this affidavit in proof of service.
Sworn at…………………………………………………………………………………………………………………………….
this……………………..day of………………………..19………………..
DEPONENT
Before Me,
COMMISSIONER FOR OATH.”
Even in England the home of origin of the rule whenever it was found to occasion injustice the effect of this rule has been modified. As stated in the Annual Practice, 1958, p. 125,
“there has always been power to extend the time fixed by this rule [i.e., O. 9, r. 17] … Since the decision in Hamp-Adams v. Hall ([1911] 2 K.B. 942. C.A.) the time . . . has been extended (Crespi Battista v. Williams (unreported) Scrutton, J., in Chambers on November 11, 1911); Knightsbridge v. Bradford (unreported), Bucknill, J., in Chambers, November 28, 1911).”
This was done after the decision in Hamp-Adams v. Hall. Though the two decisions in which time was extended were given in the same year as Hamp-Adams’ case they were given at the end of the year.
“In Steers v. Rogers 7 T.L.R. 183, [also] a writ issued in Ch.D. was duly served by leave in Pretoria on a defendant. Within three days of such service it was returned with a sheet attached to it by a seal, on which sheet was endorsed a statement that the writ was duly served on such defendant on August 7, 1889, and a certificate of the Secretary of State accompanied it as to the position of the person who served it. This the Court thought was an ‘indorsement’ [under the rule] . . . and
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declined to set aside the judgment as the application was not bona fide or made in reasonable time.”
See Annual Practice 1958, p. 124.
As rightly pointed out by Hayfron-Benjamin J. in the Okpote case, it was the very nature of civil litigation in its infancy that called for such a rule. It came into being when litigation inter partes was regarded as a private affair of the litigants and they had to see to it to bring their opponents to court. That stage in the history of the matter has long since been passed. It is certainly one of those blindly copied from the English Rules and is completely out of tune with local conditions and must receive the immediate attention of the Rules Committee. In the meantime it must be allowed to fall into desuetude. As Dr. Ekow Daniels points out in his interesting comment on the matter under the title of “Setting Aside Default Judgments” (1973) 5 R.G.L. 123 at p. 125, even in Britain the home of origin of the rule the need for modifying the rule has been felt and the “Rules Committee . . . has emasculated the nullifying effect of the mandatory requirement” of the rule by the introduction of Order 2, r. 1 of the English Rules of the Supreme Court (Revision) 1965. That rule reads:
“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect of failure shall be treated as an irregularity and shall not nullify the proceedings or any step taken in the proceedings, or any document, judgment or order therein.”
My reading of the Okpote case tells me that Hayfron-Benjamin J. (as he then was) came to the conclusion he came to with some reluctance. His remarks at p. 65 of the report when considering the temporal lapse between the decision in Hamp-Adams’ case and Steers v. Rogers (1891) 7 T.L.R. 183, namely, that, “This case was however decided by the Chancery Division in 1891 before the Court of Appeal decision of 1911 in the Hamp-Adams case (supra), and I do no think any reliance can be placed on it,” would seem to me to be a remark born of desperation. I have no doubt at all that if those decisions I have quoted above which were given at the end of 1911 were brought to the notice of Hayfron-Benjamin J. he would have arrived at a difference conclusion, freeing himself from the shackles of the Hamp-Adams’ authority.
Since the rule still remains in the rules book, however, rather than allow it to defeat the course of justice, I will in the use of my inherent jurisdiction order that the time for making the “necessary” endorsement be extended up to the end of January 1975 for the bailiff who effected the service to be ferreted out to come and make the endorsement.
The gallant effort put forward by Mr. Tetteh, learned counsel for the defendant, is certainly a last-ditch stand. But I will dismiss the application as I see no special merit in it otherwise. It is not the contention of the
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defendant that service was not effected on them. As it says in its affidavit filed on 13 August 1974 (para.
(11) ), “the failure of the defendant to enter appearance to the writ was due to the fact that the process served at Dunkwa and the papers never reached the head office in Tarkwa.” The effort in trying to nullify the present proceedings by calling in aid Order 9, r. 17 is therefore a blatant attempt to abuse the processes of the court. And with such soiled hands it should be treated with the contempt it deserves by the court. Because of its conduct I will award costs against it assessed at 100.00.
DECISION
Application dismissed with costs.
J. D.
