HIGH COURT, ACCRA
DATE: 4 DECEMBER 1970
HAYFRON-BENJAMIN J.
CASES REFERRED TO
(1) Hunt v. Allied Bakeries Ltd. [1956] 1 W.L.R.1326; [1956] 3 All E.R. 513; 100 S.J. 798, C.A.
(2) Griffiths v. London & St. Katharine Docks Co. (1884) 13 Q.B.D. 259; 53 L.J.Q.B. 504; 51 L.T. 533; 49 J.P. 100; 33 W.R. 35, C.A.
NATURE OF PROCEEDINGS
APPLICATION on notice under Order 36, r. 16 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to set aside the judgment of Charles Crabbe J. (as he then was) in the High Court, Accra, given against the second defendant in default.
COUNSEL
Ofosu-Asante for the applicant.
N. Adumua-Bossman for the respondent.
JUDGMENT OF HAYFRON-BENJAMIN J.
This is an application on notice for an order setting aside a judgment entered against the defendants by the High Court, Accra, on 27 February 1970.
The plaintiff had on his writ of summons issued on 28 October 1967 claimed an order for the specific performance of a contract with the defendants to execute a deed by way of confirmation, further assurance and perpetuating evidence of a customary sale of land to him, the plaintiff. He further claimed damages for the breach of the contract. The plaintiff’s writ was accompanied by a statement of claim setting out fully the basis of his claim.
[p.95] of [1971] 1 GLR 93
The defendants entered appearance separately; the first defendant by himself, and the second defendant through a solicitor. On 8 March 1968, when no defence was forthcoming from either defendant, the plaintiff filed notice of motion for judgment in default of defence under Order 27, rr. 7 and 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), together with the necessary certificate that the suit was not one to which rule 18 of Order 27 applied. On 22 March 1968, this motion came up for hearing before Charles Crabbe J. (as he then was) where the defendants were represented by different counsel. Judgment was entered against the first defendant in terms of the motion paper, and the motion as far as it concerned the second defendant was adjourned for hearing on 6 April 1968. On the adjourned date the motion against the second defendant was withdrawn and struck out as a defence had that morning been filed on his behalf. On 7 June 1968, the plaintiff filed a reply to the statement of defence. A few days later, i.e. on 19 June 1968, the plaintiff filed a notice to admit facts under Order 32, r. 4, and had this served on the second defendant through his solicitor on 21 June 1968. The defendant did not reply to this notice at all.
On 28 November 1968, that is exactly one year and one month after the commencement of the action the plaintiff filed notice to strike out the second defendant’s statement of defence under paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and Order 32, r. 6 of the rules of court. The reasons for filing this application are set out in the affidavit supporting the motion. It states that the second defendant by not filing an answer to the notice to admit facts “appears thereby to be determined to delay the expeditious hearing and conclusion of this suit by evasions, to say nothing of the obvious false denials of some matters alleged in the statement of claim.” The plaintiff went on:
“I now humbly desire to cut through the second defendant’s said evasions and falsehoods by confronting him with relevant extracts from:
(a) Suit No. 33/1926 entitled
Kwame Asante, Odikro of Anyinam .. Plaintiff
Kobina Baa, Odikro of Osienase .. Defendant
and
Sintim Poku, Odikro of Adakuma .. Co-Defendant
heard by Mr. Justice Roger Evans Hall, in the Supreme Court, Cape Coast, and also from
(b) The enquiry or arbitration concerning the complaint between Odikro Sintim Poku of Adakuma and Odikro Kwasi Amoa Nyame of Kokoben heard by the State Council of Akim Abuakwa presided over by Adontenhene Korankye Ampaw on the 21st March, 1941.”
The plaintiff exhibited the whole of the evidence of one Kojo Dufuo, the then odikro of Kokoben in the case before Hall J., and also the
[p.96] of [1971] 1 GLR 93
proceedings before the State Council of Akim Abuakwa with guide marks at appropriate places in the margin for ease of reference. This application which as I have said, was filed to expedite the hearing of the case, first came before the court on 9 December 1968. It was not heard until 27 February 1970, that is more than a year after it had been filed. On that day Charles Crabbe J. (as he then was) allowed the application and struck out the defence of the second defendant and entered judgment for the plaintiff on his claim including that for damages. On that day both the second defendant and his counsel were absent from the court. It is this judgment that the second defendant seeks to have set aside.
Order 36, r. 16 provides that “If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.” Rule 18 of the same order provides, “Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within fourteen days after the trial.”
The first point to be decided is whether or not this application can be sustained under this Order. The proceedings as we have seen did not take the normal course. After the reply the plaintiff did not take out any summons for directions. He rather filed a motion to strike out the defence under paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and Order 32, r. 6 of the rules of the court.
Order 32, r. 6 provides that:
“Any party may at any stage of a cause or matter, where admissions of facts have been made, either on the pleadings, or otherwise, apply to the Court or a Judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court or a Judge may upon such application make such order, or give such judgment, as the Court or Judge may think just.”
Paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), provides:
(2) Any Court may at any stage of the trial, on its own instance or on application made by any party or by the prosecution or the accused person, as the case may be, stay or dismiss any proceedings or strike out any matter relating thereto on any of the following grounds: —
(a) that such matter or proceedings cannot be reasonably supported;
(b) that such matter is, or such proceedings are, scandalous, frivolous or vexatious;
(c) that such matter or proceedings may tend to prejudice or delay a fair trial, or that any party or the prosecution or defence will be unduly embarrassed without good cause; and
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(d) that such matter is, or such proceedings are, in any other way an abuse of the powers of the Court.”
It is clear therefore that the judge acted under the provisions of the Courts Decree and struck out the defence as being wholly untenable and not on the ground of any admissions made by the second defendant. He then entered judgment for the plaintiff on the consequential default of the second defendant in serving a statement of defence, and also on the ground of the non-appearance of the defendant on the day when the motion to strike out was heard, although he had been duly served with notice of the motion. Can it be said that on that date a trial was called so as to bring this application within the provisions of Order 36, r. 16? I have no hesitation in holding that the mere striking out of the defence was not a trial; it was an interlocutory order which is appealable, may be by special leave. See Hunt v. Allied Bakeries Ltd. [1956] 3 All E.R. 513, C.A. This order could be made even if the defendant had, appeared on the day the motion was heard. However when the judge proceeded to give judgment for the plaintiff, the case in fact proceeded to trial and a final judgment given determining the rights of the parties. If the defendant had been present he could have applied for leave to amend his statement of defence after arguments for striking out. See Griffiths v. London & St. Katharine Docks Co. (1884) 13 Q.B.D. 259, C.A. It can therefore be said that his absence was a relevant factor in the judgment being entered for the plaintiff. I hold therefore that the application is properly brought under Order 36, r. 18.
The defendant has given a reasonable explanation for his absence from the court on the day the motion was heard. There has been no explanation why his counsel was absent. I am usually reluctant to visit the sins of counsel on the poor litigant, but in this matter I am satisfied that no useful purpose will be served by re-opening this litigation. It seems clear from the exhibits and from the statement of defence and other affidavits filed by the second defendant that he has little or no chance of resisting the plaintiff’s claim. I dismiss this application to set aside the judgment and I award costs against the defendant-applicant in the sum of N¢50.00.
DECISION
Application dismissed.
N.A.Y.
