IN THE HIGH COURT, ACCRA
Date: 5 JULY 1971
BEFORE: ABBAN J.
CASES REFERRED TO
(1) de la Pole (Lady) v. Dick (1885) 29 Ch.D. 351; 54 L.J.Ch. 940; 52 L.T. 457; 33 W.R. 585, C.A.
(2) R. v. Oxfordshire Justices [1893] 2 Q.B. 149; 62 L.J.M.C. 156; 69 L.T. 368; 57 J.P. 712; 41 W.R.
615; 9 T.L.R. 520; 37 S.J. 580; 4 R. 482, C.A.
(3) Bagley v. Maple & Co., Ltd. (1911) 27 T.L.R. 284.
(4) Tengey v. Doe [1962] 1 G.L.R. 361.
(5) R. v. Wilkes (1770) 4 Burr. 2527; 98 E.R. 327.
(6) Agyeman v. Ghana Railway and Ports Authority, Court of Appeal, 31 March 1969, unreported;
digested in (1969) C.C. 60.
(7) Crabbe III v. Quaye; Crabbe III v. Boye (Consolidated), Court of Appeal, 31 July 1970, unreported
NATURE OF PROCEEDINGS
APPLICATION to set aside a default judgment. The facts are fully stated in the ruling.
COUNSEL
Dr. E. V. C. de Graft-Johnson for the applicant.
T. A. Nelson-Cofie for the respondent.
JUDGMENT OF ABBAN J.
The defendant-applicant herein (hereinafter called the applicant) seeks an order to set aside the judgment of Charles Crabbe J. (as he then was), delivered on 1 May 1968 in favour of the plaintiff-respondent (hereinafter called the respondent). The respondent had sued the applicant for:
(a) A declaration of title to a piece of land described in the writ of summons.
(b) ¢500.00 (i.e. N¢ 416.67) damages for trespass.
(c) An order for the recovery of the possession of the said land.
(d) Perpetual injunction restraining the defendant, her agents, servants and workmen from interfering with the said land. In order to have better appreciation of the arguments put forward by both counsel, it is very necessary that I set out, briefly, the history of this case. The respondent’s writ of summons, accompanied by a statement of claim, was served on the applicant personally. The applicant entered appearance through her solicitor, and the said solicitor, as usual, gave his address for service of subsequent court processes. The solicitor later filed a statement of defence for and on behalf of the applicant. It is to be noted that the respondent in his statement of claim alleged that he obtained the grant of the disputed land from one Alexander Wilson, and the said grant was evidenced in writing by a deed of conveyance which was duly registered with the Lands Department. The respondent further alleged that his vendor (Wilson) was granted that plot of land
as a gift by the Sempe stool, the original owners thereof, and that the said gift was confirmed by a deed of gift registered as No. 280/1963. These allegations were traversed by the applicant in the following manner:
“(1) The defendant is not in a position to admit or deny paragraph (1)of the statement of claim. The defendant will aver that the said [p.24] of [1972] 1 GLR 22 land and all the surrounding lands are James Town stool lands, and had been adjudged as such in the following causes: (a) Manche D. P. Hammond v. Manche Kojo Ababio IV and Anor., (b) Concession Enquiry No. 1120 Accra, (c) Yaw Duade Crabbe & Ors. v. J. A. Quaye & Ors. (2) The defendant will further aver in answer to paragraph (1) of the statement of claim, that the Sempe stool is bound by all the judgments in the above-mentioned causes and is estopped by the said judgments, and, that any purported grant of the land, the subject-matter herein, by the Sempe stool to Alexander Wilson, is absolutely void and of no effect whatsoever. (3) The defendant thereupon approached the James Town stool that held judgments on the land and was granted the said land by the James Town stool… and that she is in possession and occupation of the said land as a grantee of the James Town stool which owns all the lands in the area.”On 12 September 1967, the parties agreed upon just one issue which was set down for trial, namely, whether the plaintiff or the defendant had a better title to the land in dispute. The case was then adjourned sine die for the registrar to fix a date for hearing. Eventually, a date was fixed by the registrar and hearing notices were duly served on the solicitors of the parties. But on the return date, that was 1 May 1968, both the applicant and her solicitor failed to appear. The court then proceeded with the hearing of the case in the absence of the applicant and gave its judgment in the following manner: “There has been no defence in court except for the statement of defence on the file. It comes to me as a shock that counsel be served in a case with hearing notice, as appears to have been done in this case, and then he fails to appear. All the necessary documents to be served in this case appear to have been served on counsel for the defendant. And yet there has been no appearance.
I have no reason to dispute the evidence led by the plaintiff and his witnesses and I therefore grant the reliefs sought by the plaintiff. I accept the claim of the plaintiff and order that he is entitled to the declaration of title sought, which I hereby grant. I also award in his favour damages of N¢480.00 against the defendant and order the issue of a perpetual injunction against the defendant. Equally I order that the plaintiff takes recovery of possession of the land in dispute. I award costs of N¢300.00 against the defendant . . .”Subsequently judgment after trial was filed. But since it could not be served personally on the applicant, on the ex parte motion of the respondent, an order for substituted service was made; and copies of the said judgment after trial were duly posted at several places including the applicant’s last known place of abode. The applicant on becoming aware of the said judgment, issued a fresh writ of summons against the respondent asking for a declaration that the said judgment of 1 May 1968 was obtained by fraud and should be set aside. The applicant however [p.25] of [1972] 1 GLR 22 failed to prosecute that action, and it was accordingly struck out. She then brought the present application. I must observe that there is no dispute that the applicant’s solicitor was served with the hearing notice; and there is no denial that at the material time the said solicitor was on record as the solicitor for the applicant. In this application, learned counsel for the applicant, contended that since the case was adjourned sine die any subsequent hearing notices ought to have been served on the applicant personally, and not on the applicant’s solicitor and that the service on the applicant’s solicitor was irregular. Learned counsel argued that the moment pleadings are closed and the issue settled, and the case is adjourned sine die for the registrar to fix a date, the duty of the solicitors in the case are concluded, and all processes issued thereafter should be served on the parties, personally, and not on their respective solicitors. With the greatest respect to learned counsel, this has never been the practice. A solicitor having filed a writ of summons on behalf of the plaintiff or having entered appearance on behalf of the defendant unless and until notice of change of solicitor has been filed and copies thereof served in the manner as prescribed by
the rules of court, or unless leave to withdraw from the case is granted, or unless the said solicitor has, in the meantime, been struck off the roll or suspended by the General Legal Council, the court will continue to consider that solicitor as acting for the plaintiff or the defendant, as the case may be, until after the hearing and the final determination of that particular suit. The said solicitor becomes functus officio only after the final judgment in the suit has been delivered. See Order 7, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which comprehensively deals with the different circumstances in which a change in the representation of a party by a solicitor can be made. I am therefore of the view that so long as a solicitor of a party in an action remains on record, service on that solicitor of the hearing notice in the suit is good service.
In Lady de la Pole v. Dick (1885) 29 Ch.D. 351, C.A., it was held, as appearing in the headnote, that as
further consideration had not been worked out and the fruits of judgment not having been obtained by the plaintiff, the solicitors still represented the plaintiff and that service of the notice on them was good. In the course of his judgment at pp. 356-357, Cotton L.J. said:
“Rolle C.J. lays down in Lawrance v. Harrison (Sty. 426) a principle on which we may act. He says, ‘The only question is, whether the warrant of attorney be determined by the judgment given in the suit wherein he was retained; and I conceive it is not, for the suit is not determined, for the attorney after the judgment is to be called to say why there should not execution be made out against his client, and he is trusted to defend his client as far as he can from the execution.’ According to that principle, until the judgment has been worked out, there is a duty imposed on the solicitor on the record to defend his client against any improper steps taken for the purpose of enforcing the judgment. Until that time, therefore, the solicitor on record must [p.26] of [1972] 1 GLR 22
be taken as between him and the opposite party, to represent the client, unless the client not only discharges him but substitutes another solicitor on the record.” I may also refer to the case of R. v. The Justices of Oxfordshire [1893] 2 Q.B. 149, C.A. where Lord Esher M.R. reading the judgment of the court at pp. 152-153, observed: “It has been held, no doubt, with regard to common law actions in which there has been a judgment, but such judgment has not been carried into effect by execution, that, so long as steps remain to be taken in the litigation for the purpose of obtaining for one party the fruits of it, or of defending the other party from any wrong proceeding by way of execution, the action is not finished; and therefore the solicitor who was instructed by a party in the action remains his solicitor, unless his authority has been revoked, and notice of such revocation given to the other party.” These principles were applied in the case of Bagley v. Maple & Co., Ltd. (1911) 27 T.L.R. 284. In the local case of Tengey v. Doe [1962] 1 G.L.R. 361 Ollennu J. (as he then was) in an obiter dictum, seemed to have echoed the same principles when he stated that where counsel has not been granted leave by the court to withdraw from a case, that counsel cannot refuse to accept service of process, and if he refuses, he will be deemed to have been duly served. I am therefore of the view that since the applicant’s solicitor never gave any intimation to the court that his authority was at an end, and since the court never granted the said solicitor leave to withdraw from the case, the court was entitled to consider him as still representing the applicant in the matter. Consequently, service of the hearing notice on the said solicitor was a good and valid service and the applicant was bound by it. In the circumstances the learned judge was perfectly entitled to proceed with the hearing of the case when it was called and the applicant and her counsel failed to appear. The procedure adopted by the learned judge was evidently within the true spirit of the provisions of Order 36, r. 16. That rule reads, “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. ”It was further contended by learned counsel for the applicant that no irreparable harm will be done if the judgment is set aside and the parties given a chance to state their case on the merits. Learned counsel for the respondent, in his reply, contended that even if the judgment is set aside and a fresh hearing is ordered, the defendant-applicant cannot prove any better title and she is bound to lose the action all the
same. Learned counsel argued that the judgments, upon which the applicant is relying to establish her title as against the respondent, have since gone to the Court of Appeal and the said court, in its judgment dated 31 July 1970, has declared the Sempe stool, from which the respondent derived his root of title, to be the absolute owner of the disputed land, including the surrounding areas thereof. Learned counsel for the respondent, therefore, submitted that in
[p.27] of [1972] 1 GLR 22 view of the said judgment of the court of Appeal, the substratum of the applicant’s defence in the substantive action is completely wiped out; and in the circumstances, it will be a waste of time to set aside the judgment and then order re-hearing.
There is no doubt that I have a discretion either to set aside or refuse to set aside a judgment obtained in default; but the discretion must be exercised according to certain legal principles. Lord Manfield in R. v. Wilkes (1770) 4 Burr. 2527 at p. 2539 said, “But discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful; but legal and regular.” In Agyeman v. Ghana Railway and Ports Authority, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60, Akufo-Addo C.J. (as he then was) reading the unanimous judgment of the Court of Appeal observed:
“The principle which guides a judge in the exercise of his discretion to set aside a judgment obtained in default of appearance (or of defence for that matter) is, we think, too well known to require any detailed restatement by us. It is that the party praying for the exercise of the court’s discretion must disclose either by affidavit or some other acceptable means that he has a reasonable defence to the claim, and that it would be in the circumstances, unjust to leave his case unadjudicated upon.
… In the area of judicial discretion, there are no binding precedents properly so-called, as each case has to be dealt with strictly on its own merits and on the view which the judge takes of the particular circumstances calling for the exercise of this discretion.”
With these principles in mind, I have carefully considered the submissions of counsel, as well as the
pleadings and the affidavits filed herein, and I have come to the conclusion that I should not exercise my discretion in favour of the applicant. As I have already pointed out, only one issue was to be tried, namely which of the two parties had better title to the land in dispute. This issue can only be resolved by determining which of the two stools—Sempe or James Town—had title to the disputed land. The
applicant had her grant direct from the James Town stool; while the respondent traced his root of title to the Sempe stool. I have had the opportunity of perusing thoroughly the judgment of the Court of Appeal dated 31 July 1970 in Crabbe III v. Quaye; Crabbe III v. Boye (Consolidated) unreported, referred to by learned counsel for the respondent, and I am satisfied that this judgment is the result of the appeal in the case mentioned in paragraph (1) (c ) of the applicant’s statement of defence which I quoted earlier on in this ruling. The other two cases, referred to in paragraph (1) (a) and (b) of the applicant’s statement of defence, were also fully considered in the said judgment of the Court of Appeal especially, at pp. 11, 13, 18, 20 and 21 of the judgment. This judgment is binding on this court and I ought to take judicial notice of it.
[p.28] of [1972] 1 GLR 22 It is clear that that judgment determined the respective rights of the stools of Sempe and James Town concerning an area of land of which, admittedly, the land in dispute in the present case forms part. The judgment declared the Sempe stool as the allodial owners of the disputed land as against the James Town stool, the applicant’s grantors. The applicant could not and cannot hope, under any circumstances, to establish a better title to the said land, so long as that judgment of the Court of Appeal stands. Consequently, no useful purpose will be served by re-opening the matter, except to involve the parties in unnecessary expense. In the circumstances I am of the view that there is nothing in the arguments advanced which should justify me in setting aside the judgment in question and the ends of justice will be better served if the application is refused. The application is accordingly dismissed. The respondent will have his cost taxed at N¢80.00 inclusive.
DECISION
Application dismissed.
J.D.
