HIGH COURT, KOFORIDUA
Date: 21 JANUARY 1974
QUASHIE-SAM J
CASE REFERRED TO
Republic v. District Magistrate, Accra; Ex parte Adio [1972] 2 G.L.R.125, C.A.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a district court awarding the plaintiff damages in an application under Act 174, which was brought out of time and without prior notice of the accident to the employers. The facts are fully stated in the judgment.
COUNSEL
B.K. Senkyere for the appellants.
A. Badu for the respondent.
JUDGMENT OF QUASHIE-SAM J
The appellants herein have brought this appeal against the judgment of the District Court Grade I, Akwatia dated 9 December 1970 in which they lost to the respondent on his claim for 0 607.50 as compensation for injury he received in the course of his employment with the appellants. The action was brought under the Workmen’s Compensation Act, 1963 (Act 174), claiming compensation.
On 8 September 1969, and at the instance of the respondent the District Court Grade I, Akwatia, issued out a notice addressed to the appellants as follows:
“Take notice that, if you intend to oppose the application, of which a copy is served upon you herewith, you must lodge with me, within twenty-one days after the service of this notice upon you, a written answer thereto containing a concise statement of the extent and grounds of your opposition. And further take notice that the above case has been set down for hearing on Wednesday, the 17th day of September, 1969, at 8.30 a.m., or so soon thereafter as the applicant can be heard, and the District Court Grade I at Akwatia has been fixed as the time and place for the hearing of the application, and that in default of your lodging with me within the time aforesaid a written answer as herein required, or of your appearing at the said time and place fixed for the hearing of the application, such order may be made as the court deems just and expedient.”
On 9 December 1970 when the appellants did not appear, the court proceeded to give an ex parte judgment against them. It is very concise and I reproduce it in full for convenience.
“The plaintiff claims the sum of 0607.50 under the Workmen’s Compensation Act, 1963, in respect of injury sustained in the course of employment on 21 March 1968. The defendant has been served with the relevant notice of the claim but has filed no paper to oppose
[p.279] of [1974] 1 GLR 277
it. He is therefore deemed to have no defence to the claim. Judgment is therefore given for the plaintiff to recover from the defendants the sum of N06O7.5O with N02O.OO costs.”
It is from this judgment that this appeal is brought. Originally it was based on one ground only, namely,
that the judgment was against the weight of evidence; on 18 October 1971 additional grounds of appeal were filed as follows:
“1. (a) The judgment was based on no evidence in that no evidence was adduced in support of the claim.
(b) The record of proceedings is incomplete and therefore irregular.
(c) The learned district magistrate erred in law by not following the rules of court.”
1973 yet other additional grounds of appeal were filed and they are:
On 24 July “(b)
(c)
(d)
The magistrate court had no jurisdiction to hear the application because the application was not properly before the court.
The plaintiff ‘s claim was for payment of special damages and so in the absence of proof of special damages such an award could not be sustained.
The defendants having entered an appearance they were entitled to be given hearing notice to appear to challenge the assessment of damages. As no notice was given to the defendants the proceedings are null and void.”
At the hearing, counsel for the appellants relied solely on the latest additional grounds. Referring to section 12 (1) of Act 174, he submitted that the lower court had no jurisdiction to entertain the application. He argued that section 12 (1) of the Act required as a condition precedent to an application for compensation, that a notice must have been given within a reasonable time after the accident and also that the application itself must have been made within six months after the accident. He observed that in this instant case, the notice was given more than a year after the accident which is unreasonable, and also that the action was commenced some sixteen months after the accident; he submitted that so long as the proceedings are silent on reasons why these limitations in time were not strictly complied with, the court below should not have entertained the action. Counsel relied on Republic v. District Magistrate, Accra; Ex parte Adio [1972] 2 G.L.R. 125, C.A.
In that case the Accra-Tema City Council applied to the district court and obtained an order empowering them to sell a private property, the owner of which had defaulted in payment of rates thereon. What was wrong with the application ab initio was that the council did not give notice to the defaulting house owner nor did they affix one on the premises as required under the Local Government Act, 1961 (Act 54), as a condition precedent to the application. Thus the district magistrate was held to have exceeded his jurisdiction in granting the order of sale, for without
[p.280] of [1974] 1 GLR 277
the required condition it was imperfect for him to have assumed jurisdiction. It is on similar lines that counsel for the appellants argued this appeal when he referred to section 12 (1) of Act 174.
That section reads as follows:
“12. ( 1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the application for the compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury or, in the case of death, within six months from the time of death:
Provided that—
(a) the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if the employer is proved to have had knowledge of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause;
(b) the failure to make an application within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake or other reasonable cause.”
It is obvious from the proviso to section 12 (1) of the Act that it is not the intention of the legislature to avoid the court’s discretion in entertaining an application brought out of time or made without notice to an employer. Looking at paragraph (a) of that proviso, it is clear that the want of notice does not operate as a bar to proceedings under the Act, if inter alia the employer has had knowledge of the accident from any other source; and by paragraph (b) of that proviso the failure to make an application within six months from the occurrence of the accident by itself is not a bar to the maintenance of proceedings if the failure can be attributed to mistake or other reasonable cause. From the totality of those provisions in paragraphs (a) and (b) of that proviso, therefore, I am of the opinion that the legislature does not intend to make time or notice strictly of the essence if the employer will not thereby be prejudiced.
It is in this light that I will examine the instant case. From the record it is clear that within the meaning of paragraph (a) of the proviso to section 12 (1) of the Act, the employer, in this case the appellants, had knowledge of the accident. As can be seen from the employer’s report of the accident to the labour officer, the appellants showed full knowledge of the accident
[p.281] of [1974] 1 GLR 277
in terms of date, time, place, and the circumstances. Even though the accident occurred on 21 March 1968 and the appellants were required to report to the nearest labour officer within two weeks thereof, the appellants reported on 30 November 1968 long before the labour officer’s notice given on 15 April 1969. All this shows that at the time proceedings commenced on 8 September 1969, the appellants themselves knew completely of the accident.
From the record it is equally clear that when the appellants reported the accident to the labour officer the latter had to call upon the appellants for a statutory medical report which they failed to provide for a long time, which led to the letter of 15 April 1969 addressed from the labour officer to the appellants. Paragraph 1 of which letter is:
“I refer to the above matter and have to inform you that despite my repeated demand to you for a medical report on Mr. Kwabena Osei, your employee, without result, I myself have obtained a final medical report on him from the attending medical officer, two copies of which I forward herewith for your further action.”
From that state of affairs I would hold that the failure to make the, application to the court within six months from the date of the accident was in some measure due to the indifference of the appellants themselves, and was excusable within the meaning of paragraph (b) of the proviso to section 12 (1) of Act 174.
In a district court where formal pleadings are not required, unless ordered, all the available documents relevant to the matter before it may constitute pleadings from which the issues for determination may be gathered. My observations outlined above are all apparent on the face of the record and from the documents available to the court. By the considerations made above I will distinguish this case from that of Ex parte Adio (supra) relied on by the appellants and hold that the application was properly before the district court and that the district court acted within its jurisdiction. Therefore the ground of lack of jurisdiction fails.
This brings me to the ground of appeal that the claim was for special damages and so in the absence of proof of special damages the award cannot be sustained. As I have already stated above, all the documents relevant to this matter and available to the court must be looked at as the pleadings. That this action was brought under the Workmen’s Compensation Act, 1963 (Act 174), is not in dispute. That Act makes provision for the computation of compensation in respect of various classes of injuries. From the letter addressed by the labour officer to the appellant dated 15 April 1969 it can be seen how the compensation for 06O7.5O as claimed was computed under the Act. The court gave notice to the appellants in clear terms that if they intended to oppose the application they must, within 21 days lodge a written answer to the application, containing a concise statement of the extent and grounds of their opposition; in that notice the appellants were warned that in their default to lodge the aforementioned answer, such order might be made as the court deemed to be just and expedient. When the trial magistrate gave judgment
[p.282] of [1974] 1 GLR 277
for the respondent, he must have had in mind the similar kind of procedure commonly called the “Undefended List.” He had before him a claim for a liquidated amount calculated in accordance with the provisions of the Act. It was not opposed in any respect. Indeed, as could be observed from the recordings of the lower court in its record book which this court called for during this hearing, that court on 18 February 197O ordered the appellants to file their defence if any but they failed to do so and up to 9 December 197O when judgment was given, they had disclosed no ground of opposition to the claim. On the face of that statutory evidence of the computation of the compensation without opposition, I hold that the trial magistrate could have had no better evidence to act upon for as far as he was concerned the claim in those figures was a statutory award and conclusive.
The ground of appeal that there was no proof of special damages is therefore misconceived and it must also fail.
It only now remains for me to deal with the third additional ground of appeal that the appellants ought to have been given hearing notice to appear in court to challenge the assessment of the damages. At this hearing, as already observed, this court had the docket and file and the record book of the lower court from all of which I am satisfied that the lower court registrar sent hearing notice for service on the appellants through the labour officer. I am further satisfied that the hearing notice for 25 November 197O was duly served on the appellants who signed an acknowledgment of the same, that signature being identical with the other signatures of the appellants which have been produced in court.
The appellants’ failure to put in an appearance must therefore be considered as a wilful omission. Besides, in my view, there was nothing in the documents constituting what I have called pleadings to suggest that the trial magistrate was to embark upon any exercise of assessment of damages because what would ordinarily amount to an assessment was the statutory computation of compensation which stood unchallenged even by the indifference of the appellants to the specific order of the court to file a defence or answer to the application.
It was the submission of counsel for the appellants that the failure of the appellants to file a defence does not prevent them from challenging the quantum, yet throughout the case and up to the appeal, no ground has been disclosed for challenging the statutory computation.
I think I have said enough in this judgment to support the view that in all the circumstances there was no need for the respondent to have mounted the witness-box to give formal evidence before the trial magistrate could give judgment as he did. The last ground of appeal equally fails.
The appeal is therefore disallowed and dismissed with 075.00 costs to the respondent.
DECISION
Appeal dismissed it with costs.
S.E.K.
