HIGH COURT, KUMASI
DATE: 7 JULY 1971
TAYLOR J
CASES REFERRED TO
(1) Nyarko v. Abunyawah (1956) 1 W.A.L.R. 137.
(2) Adunna v. Mfum [1971] 1 G.L.R. 89.
(3) Re Guerin (1888) 58 L.J.M.C. 42; 60 L.T. 538; 53 J.P. 468; 37 W.R. 269; 16 Cox C.C. 596. (4) Thompson v. Marshall (1879) 41 L.T. 720; 28 W.R. 220, C.A.
(5) Roberts v. Plant [1895] 1 Q.B. 597; 64 L.J.Q.B. 347; 72 L.T. 181, C.A.
(6) Lloyd Banking Co. v. Ogle (1876) 34 L.T. 584.
(7) Anglo-Italian Bank v. Wells (1878) 38 L.T. 197, C.A.
(8) Jones v. Stone [1894] A.C. 122; 63 L.J.P.C. 68; 70 L.T. 174, P.C.
(9) Wallingford v. Mutual Society 5 (1880) App.Cas. 685; 50 L.J.Q.B. 49; 43 L.T. 258, H.L.
(10) General Rly. Syndicate, Re Whiteley’s Case [1900] 1 Ch. 365; 69 L.J.Ch. 250; 82 L.T. 134; 16 T.L.R. 176, C.A.
(11) Dummer v. Brown [1953] 1 Q.B. 710; [1953] 2 W.L.R. 984; [1953] 1 All E.R. 1158; 97 S.J. 331, C.A.
NATURE OF PROCEEDINGS
APPEAL against the judgment of a district magistrate adopting without appraisal the findings of a referee who was asked by the court to investigate accounts.-
COUNSEL
Asiedu for the appellants.
Owusu Yaw for the respondent.
JUDGMENT OF TAYLOR J.
By his writ of summons of 17 September 1968 the plaintiff-respondent hereinafter to be referred to in this judgment as the respondent claimed against the defendant-appellants hereinafter referred to as the
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appellants the sum of’ N¢480.60 “being rents, water and electricity bills, etc. unpaid by the defendants while occupying plaintiff’s house No. 8 Block 12, Old Amakom, Kumasi.” The writ was supported by an affidavit in paragraph (12) of which the details of the claim were spelled out; and in paragraph (15) the respondent applied for the cause to be placed on the undefended list.
The appellants were duly served on 23 September 1968 and the return date was stated in the writ of summons as 30 September 1968 thus giving the appellants seven days to take steps to answer the claim if they had a defence. However, on the return day Mr. Karikari holding brief for Mr. Mensa-Bonsu for the appellants applied to the district court grade I presided over by his worship Mr. A. Essilfie-Bondzie for an adjournment to attempt a settlement. Mr. Adusei holding brief for Mr. Owusu Yaw for the respondent is not recorded as saying anything and I shall interpret his silence as acquiescence in the line of conduct envisaged by the appellants. The case was accordingly adjourned to 14 October 1968. On that day when the case was called Mr. Asiedu appeared for the appellants and applied again for “an adjournment to enable his clients to effect settlement.” Mr. Boateng holding brief for Owusu Yaw agreed and the case was once again adjourned to 28 October 1968. On the said adjourned date the respondent appeared in person but the appellants were represented by Mr. Asiedu. The parties are not recorded to have made any application and the court presided over by his worship Mr. Essilfie-Bondzie apparently on its own motion decided that the case involved accounts and made the following order: “I hereby refer the case to a referee to go into accounts between the parties and to report his findings to the court. The registrar of this court is appointed referee.” The case was then adjourned sine die.
Meantime on 23 July 1970 the registrar completed his report. It is an interesting document as the registrar proceeded apparently as a tribunal and heard evidence on oath from the respondent and the appellants not merely on the state of the accounts but on circumstances giving rise to each item of claim. It was in fact a summary trial of the cause before the registrar and his findings were in the form of a judgment, he gave reasons for preferring one piece of evidence as against another and arrived at conclusions which a trial judge dealing not merely with accounts but with the claim itself would have arrived at if he had treated the evidence the way the registrar treated it. Typical of the referee’s approach is the following:
“In this case the plaintiff has proved his case by tendering various receipts for the expenses he made for electricity and water during the defendants’ occupation in his house, and during the period of eight months the keys were in possession of the defendants. Exhibits A, C, D, and E show receipts obtained for locks bought, bills for electricity and water reconnection paid, the total amount is N¢131.70.
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Since there is no evidence to challenge the plaintiff’s claim that the defendants were in possession of the keys for eight months it is assumed that the defendants were still in occupation of the premises, and if that is so then the defendants will be liable for the payment of eight months’ rent reckoning from November 1967 to June 1968 at N¢40.00 a month, that is N¢320.00.
I however do not accept the plaintiff’s claim of N¢10.00 being cost of repairs he made on the damaged septic tank, water-closet and the kitchen as this is not supported by any receipt. I also do not accept the claim of N¢12.00 being cost of water rate for six months as it is also not supported by a receipt from Water and Sewerage Corporation. I will say at this stage that the defendants are liable to the plaintiff in the sum of N¢439.70 being arrears of rent for eight months (the period defendants were in possession of the keys), cost of electricity and water bills, cost of locks plaintiff bought to replace old locks and rent for October 1967.”
I cannot help feeling that, assuming that this is a proper case to be dealt with by a referee, this referee certainly went outside his terms and indeed tried to deal with the question of liability whereas he was only to make findings as to the state of the accounts. Be that as it may the so-called report was put before the court and on 4 August 1970 Mr. Owusu Yaw for the respondent and Mr. Asiedu for the appellants appeared before the district court grade I, this time presided over by another district magistrate grade I, his worship M. K. Adzovie ostensibly to consider the report.
On that day the parties by their counsel made submissions to the court. On behalf of the respondent, it was submitted simply that he had come to court “for the adoption” of the report. The appellants resisted this stand very vehemently on the ground that the report was based on the assumption that they had “closed their case.” They submitted that before the referee they had a vital witness “whose evidence could have rebutted a lot in the report,” that as the witness was not called the report was premature and furthermore that the referee adjourned the matter in the presence of the respondent while his counsel was absent for a settlement but before a settlement could be effected the referee submitted his report to the court. The respondent’s counsel submitted in reply that the question of settlement is not recorded by the referee and that the parties are bound by the report as recorded. He submitted that the matter had been protracted for too long and that there must be an end to litigation; he submitted further that the reference to the referee was at appellant’s instance. These submissions of counsel for the respondent found favour with the court. Indeed the court seemed to have been overwhelmed by the apparently competent manner the referee seemed to have set about his task. It must be noted that the referee had said in his report that the appellants are liable to the respondent in the sum of N¢439.70
[p.372] of [1971] 2 GLR 368
and not N¢480.60 as is claimed in the writ of summons. The district magistrate in a judgment in which he maintained that the appellants opportunity to have called their witness concluded as follows: “I am quite satisfied that if this witness was that important to the defendants’ case he would even have been the first they would have called. There is also nothing on record to the effect that the inquiry before the referee had been adjourned sine die for a settlement and as I have pointed out that defendants are not challenging the accuracy of the proceedings they must be held bound by it. I am quite convinced that the defendants are raising this point to prevent this litigation from coming to an end. I do not think they are entitled to do so. I have also had the opportunity of reading through the report and I have found the findings of the referee to be very fair. I accordingly hold that defendants are bound by the findings of the referee and I hereby order its enforcement. I accordingly hold defendants liable to plaintiff in the sum of N¢439.70. I award N¢50.00 costs to plaintiff.”
From this decision of the district magistrate the appellants appealed on the following grounds: “(i) That the learned magistrate erred in law in adopting the referee’s report by holding that the parties are bound by the said report and the findings thereto in the face of defendants’ counsel’s submission that the defendants had not closed their case before the referee reported to court.
(ii) The learned magistrate erred in holding that the defendants were responsible for the delay in the completion of the case before the referee.”
The relief sought by the appellants is that the judgment of the district court grade I be set aside and judgment given in favour of the appellants with costs. I have not appreciated why the appellants want judgment in their favour. However this is of little importance.
When the case came before me on 4 May 1971, I drew the parties’ attention to the fact that the respondent asked for this case to be put on the undefended list so that it can be disposed of as an undefended suit and accordingly in accordance with the rules he alleged that the appellants had no defence to his claim. It seems this was not done and I expressed the view that it seemed this is a proper case to be sent back to the district court to be dealt with in accordance with the rules.
Counsel for both parties readily agreed and indeed at their instance the case was adjourned to 18 May 1971 for mention in order that they might try if they could effect a settlement. However on 11 May 1971 the appellants filed the following additional grounds of appeal:
“(1) The learned magistrate’s order referring this action to the referee to go into accounts and report to the court was premature as he failed to consider and resolve the first issues as to whether or not the action herein was one which could be conveniently
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and suitably placed on the undefended cause list as prayed by the plaintiff’s affidavit filed on 16 September 1968.
(2) The learned magistrate’s order for reference was wrong in law as it pre-supposes that the defendants had already applied for and been granted leave to defend the action and therefore the resulting report of the reference and the adoption of same are null and void.
(3) The action herein being part heard before Mr. Essilfie-Bondzie who made the order for reference, the learned magistrate erred in law in assuming jurisdiction and adopting the referee’s report.”
On 18 May 1971 it appeared that the negotiations for settlement had broken down and so after two more adjournments the case was finally fixed for definite hearing on 30 June 1971. The parties at the hearing of the appeal must have been impressed by the point taken by this court for they declined to argue and were ad idem in the view that the case should be referred forthwith to the district court to be dealt with in accordance with the rules.
Although the parties have not argued this case before me, it is in my view essential that as an appellate court I ought to give a judgment giving reasons for the decision sending the case back. I do not think it is proper to acquiesce in the suggestion that the case should be peremptorily sent back if there are no good reasons for such a course because obviously it implies the setting aside of the judgment of the district court: See Nyarko v. Abunyawah (1956) 1 W.A.L.R. 137. Clearly in the circumstance reasons ought to be given for so setting aside that judgment, for a judgment of a court of competent jurisdiction is prima facie right until it is set aside by an appellate court of competent jurisdiction. And it should only be so set aside for good and cogent reasons. This is the reason why I have resisted the combined applications of counsel for both parties that I should without much ado peremptorily send the case back for retrial.
In considering this appeal the first glaring pitfall on which in my view the decision of the district court seems to founder is its apparent surrender of jurisdiction to the referee. Although the referee was to make an inquiry and merely report yet counsel for the respondent and the magistrate somehow thought the findings in the report are binding on the parties. I would have thought that having been vested by law with jurisdiction to adjudicate, the magistrate would in fact adjudicate and perhaps in adjudicating utilize the report by drawing on it to support or substantiate his findings. Rule 9 of Order 38 of the Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.), the order governing the investigations of facts or accounts by referees at the district courts shows clearly the effect of the report of a referee. It shows that it is not as binding a document as counsel and the magistrate thought. The rule reads:
“The proceedings and report in writing of the referee shall be received in evidence in the case unless the Court may have reason to be dissatisfied with them, and the Court shall have power to draw such inferences from the proceedings or report as shall be just.”
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And rule 10 of the same Order 38 shows that the magistrate is not to divest himself of jurisdiction to adjudicate by a so-called adoption. It provides:
“The Court shall have power to require any explanations or reasons from the referee, and to remit the cause or matter or any part thereof for further enquiry or consideration to the same or any other referee, as often as may be necessary, and shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case.”
It seems to me, therefore, that the district magistrate, although he is empowered to rely on the report, certainly raised it to such a pedestal as to make his mode of relying on it erroneous in law. For this reason it seems to me his judgment ought not to be allowed to stand since it is completely founded on the report, instead of on his own appraisal of the material before him. I doubt whether he even perused the respondent’s affidavit which is the material he should have looked at.
There are other reasons why the judgment ought not to be allowed to stand. As I have indicated already the respondent applied for a writ of summons and asked that the suit be entered for hearing on the undefended list in accordance with Order 2, r. 9 of the said Schedule II to Cap. 4. The claim is as appears at the commencement of this judgment and it is clear that the sum claimed, namely, N¢480.60 is a liquidated money demand, for as I said in Adunna v. Mfum [1971] 1 G.L.R. 89 at p. 91, “a money demand is said to be liquidated when it is fixed or ascertained,” and the sum claimed here is certainly ascertained and fixed. At the district court the writ was marked “undefended list” and it was entered for hearing as I have already indicated on 30 September 1968. All these steps are in accordance with the said Order 2, r. 9 of Schedule II to the Courts Ordinance, Cap. 4 (1951 Rev.).
On the hearing date although the appellants had been served since 23 September 1968, they took no steps at all in the suit in accordance with the rules. Now the procedure for a defendant in the position of the appellants who has been served and who intends to defend a suit on the undefended list is fully set down in Order 2, r. 11 of the said Schedule II aforesaid and it is as follows:
“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence and stating whether the defence alleged goes to the whole or to part only and if so to what part of the plaintiff ‘s claim, then on the action coming on for hearing on the return-day, the Court after being satisfied by such affidavit, or by the defendant’s viva voce evidence, or otherwise, that the defendant has a good defence to the action on the merits or has disclosed such facts as may be deemed sufficient
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to entitle him to defend, shall let in the defendant to defend either conditionally or subject to such terms as to giving security or time or mode of trial or otherwise as the Court may think fit, and may order that the suit shall be entered in the general list for hearing.”
It seems to me that the appellants clearly neglected to deliver a notice of intention to defend in accordance with this rule. The magistrate therefore ought to have proceeded to dispose of the case as a case on the undefended list. The amount claimed is as I have indicated a liquidated money claim. There was legally no other material before him which could enable him to decide as he did that the claim involved accounts. This is an issue which the appellants could have legitimately raised by giving the statutory notice prescribed by rule 11 (supra) and showing by affidavit as is required by that rule the reasons why the claim involved the going into accounts. As this was not done, it is my view that it was incompetent for the district magistrate to refer the matter to a referee as he did. There were no accounts to be referred to a referee. What the magistrate had is a pure liquidated money claim devoid of any complexity and calling for no further scrutiny. I hold therefore that the reference is invalid and I set it aside and with it the report which flowed from it. If the report is set aside the judgment which merely founds itself on the report cannot be sustained and for this reason also the judgment ought to be set aside.
In the course of considering this appeal I have had grave doubts as to whether or not on principle a case began by one magistrate can be completed by another magistrate as was actually done in this case. The principle is however clearly stated in Stone’s Justices’ Manual (93rd ed.) at p. 275 where Re Guerin (1888) 53 J.P. 468 is quoted to support it. It is as follows:
“The judicial discretion which a magistrate has to exercise in cases brought before him must be based upon the evidence taken before him, and it is not competent for him to act upon evidence taken before another magistrate.”
As is indicated in the same page of Stone’s Justices’ Manual (supra), the practice is irregular and contrary to natural justice, but in this case it is obvious that evidence was not actually taken before the first magistrate and so perhaps the reason for the rule may not apply here and especially so, as the parties acquiesced in it. In any case although I think it is infinitely better for the same magistrate to handle a case from beginning to end, nevertheless I do not think it is essential for me taking into account the facts of this case to make a firm pronouncement on this aspect of the case nor do I think that it is necessary for me to base any decision on it as this appeal can be properly decided upon other and better grounds.
In my view once the appellants failed to comply with rule 11 of Order 2 of Schedule II aforesaid it was incumbent on the magistrate to proceed in accordance with rules 14 and 15 of the said Order 2 (supra). The said rules read as follows:
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“14. Where any defendant neglects to deliver the notice of defence and affidavit, as described by rule 11, within the time limited by the said rule, the Court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the Court may think just.
- Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by rule 11, within the time limited by that rule, and is not let in to defend in accordance with the provisions of rule 14, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.”
Clearly because of the mandatory provision of rule 15 aforesaid the court is bound to hear the case as an undefended suit. This was not done. Now under Order 53, r. 19 of the said Schedule II, an appeal before this court is capable of operating as a rehearing of the whole suit as if the proceeding has been instituted and prosecuted in this court as a court of first instance. Furthermore under article 113 (4) of the Constitution this court has the powers of the district court from which the appeal was brought. I would have exercised these powers if the district court grade I had indeed heard the case. It seems to me that the case was not heard at all, and there would seem to be legally no proceeding before me. Furthermore, as can be seen from rule 14 of Order 2 (supra), before delivery of judgment at the district court the appellants have a right by special leave to defend even though they had not complied with rule 11 of Order 2 aforesaid. For this reason also it will obviously be unjust for this court to enter judgment in favour of the respondents.
It is noteworthy that under the said Order 2, r. 15 of Schedule II (supra) it is specifically provided that the “suit shall be heard as an undefended suit and judgment given thereon.” It does not seem to me and it does by no means follow that because the appellants are in default for non-compliance with the rules the respondent is automatically entitled to judgment. Indeed I apprehend that cases under the said rule 15 (supra) are for all practical purposes not unlike cases under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and the principles which guide the courts in giving summary judgment under the said Order 14, r. 1 apply by the same parity of reasoning and with equal force to the said rule 15 of Order 2 of Schedule II. The principles governing the court’s exercise of discretion in granting leave under the said Order 14 are well known: If there is a bona fide defence or any arguable point, leave should be granted to defend and especially so where a difficult question of law arises. But where the defendant evinces an intention merely to delay and has no reasonable defence leave to defend is usually refused: see Thompson v. Marshall (1879) 14 L.T. 720, C.A.; Roberts v. Plant [1895] 1 Q.B. 597, C.A.; Lloyd Banking Co. v. Ogle (1876) 34 L.T. 584; Anglo Italian Bank v. Wells (1878) 38 L.T. 197, C.A. per
[p.377] of [1971] 2 GLR 368
Jessel M.R. at p. 201; Jones v Stones (1894) 70 L.T. 174, P.C.; Wallingford v. Mutual Society (1880) 5 App.Cas 685 per Lord Blackburn at p. 704, H.L.; General Rly. Syndicate, Whiteley’s Case [1900] 1 Ch. 365 per Lindley M.R. at p. 369; Dummer v. Brown [1953] 2 W.L.R. 984, C.A.
In this respect Lord Halsbury delivering the opinion of the Privy Council in Jones v. Stone [1894] A.C. 122 at p. 124 said of the said Order 14:
“The proceeding established by that order is a peculiar proceedings, intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and, where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay.”
Having regard to the principles I have adverted to and to this observation of Lord Halsbury I ask myself ought I to rehear and decide the case myself? I think not. This is a case where the appellants did succeed in prevailing upon the so-called referee to disallow some of the items claimed. The appellants insist that they have a relevant witness who will presumably challenge the claim. It would seem in the circumstance that they may have a defence to some or all of the claim and since until final judgment they still have a right to canvass their defence I will refrain from dealing with the matter even if I had power to deal with it having regard to the fact that in this judgment I have also held that the magistrate did not hear the suit at all and consequently in law there may be no proceeding before me.
Furthermore if instead of a referee the court itself had ignored the said Order 2, r. 15 of the said Schedule II and proceeded to hear or require oral evidence, the matter may very well be different. This is so because it seems the court has power to so act under rule 16 of the said Order 2 of Schedule II aforesaid. The rule provides: “Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings.”
For these reasons I hereby set aside the judgment of the district magistrate and remit the case to the district court grade I with the direction that it proceed to hear this suit as an undefended suit in accordance with rule 15 of Order 2 of Schedule II to Cap.4.
This order means of course that the appeal succeeds but since the parties acquiesced in the irregularities committed by the court and actively led the court on, I will award no costs now but will order that the costs of the abortive trial be costs in the cause. Court below to carry out.
DECISION
Appeal allowed.
Rehearing ordered.
S.A.B.
