HIGH COURT, KUMASI
8 DECEMBER 1970
BEFORE: TAYLOR J.
CASE REFERRED TO
Knight v. Abbott, Page & Co. (1882) 10 Q.B.D. 11; 52 L.J.Q.B. 131.
NATURE OF PROCEEDINGS
APPEAL against a ruling on a preliminary point by a district magistrate grade II in an action for damages for tort. The facts are fully stated in the judgment of the court.
COUNSEL
Kingsley Abeyie for the appellants.
D. A. Addai for the respondent.
[p.91] of [1971] 1 GLR 89
JUDGMENT OF TAYLOR J.
The plaintiff by her solicitor sued the defendants claiming N¢300.00 damages against the defendants as endorsed on her writ of summons:
“for the unlawful destruction of the plaintiff’s cocoa pods and food stuffs by the defendants’ sheep at the plaintiff’s cocoa farm at Apemso on a land commonly known and called ‘Apemso-Mfikyire’ on the Asokore stool land bounded by the properties of Yeboah and Kwasi Manu.”
The application for the writ of summons at the district court grade II was headed “Under undefended list.” It was an application apparently made under Order 2, r. 9 of the Schedule II to Courts Ordinance, Cap. 4 (1951 Rev.), the rules governing civil procedure in the district courts. It was supported by an affidavit setting forth the grounds upon which the claim was based and it complied with the requirements of the said Order 2, r. 9 which reads as follows: [His lordship here read the provisions of Order 2, r. 9 as set out in the headnote and continued:]
The procedure to be adopted by a defendant who intends to defend is fully set out in Order 2, r. 11 of the said Schedule II and is as follows: [His lordship here read the provisions of Order 2, r. II as set out in the headnote and continued:]
It seems to me that the district magistrate has misconceived and misapplied the provisions of Order 2, r. 9 (supra). That rule is only applicable in cases where the plaintiff’s application is in respect of a claim to recover (1) a debt, or (2) a liquidated money demand.
If the claim does not fall within (1) or (2) then it is not a proper claim to be placed on the undefended list. The claim in this case is clearly not a debt so it does not fall within (1); it is also not a liquidated money demand for a money demand is said to be liquidated when it is fixed or ascertained. The words debt or liquidated demand do not extend to unliquidated damages whether in tort or in contract even though the amount of such damages be named as a definite figure: see Knight v. Abott, Page & Co. (1882) 10 Q.B.D. 11.
Indeed it seems that the sum of N¢300.00 claimed by the plaintiff in her writ is clearly an unliquidated demand and the district magistrate did recognise it as such. In his ruling he said of this claim: “The second issue as to whether N¢300.00 damages is a liquidated claim can be simply answered that on the facts it could not be liquidated. That second issue is then ruled in favour of the defendant for its uncertainty is in the quantification of the damages said to have been caused.”
Whatever the last sentence might mean, in the above passage the district magistrate held that the sum is not a liquidated money demand and with that holding one would have thought he would decide in favour of the defendants. Instead he held:
“The application by plaintiff that judgment be entered in default of defence is accepted, but the court would want the defence to help or
[p.92] of [1971] 1 GLR 89
evidence to be adduced in its attempt to assess the damages. On the other hand, where it appears the defence has no objection against the damages stated, then the judgment as entered is full and covers the entirety of the damages claimed.”
It seems to me that the process of reasoning by which the district magistrate arrived at his interpretation of Order 2, r. 9 is faulty and his decision is therefore erroneous. This suit is not within the categories of suits itemised in Order 2, r. 9 as suits to be placed on the undefended list.
Before this court counsel for the respondent has conceded that the action is not for a liquidated money demand. He argues, however, if I understand him, that in Order 3, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), the expression “liquidated demand in money” an expression similar to “liquidated money demand” is used but this does not preclude a plaintiff from coming by way of a specially endorsed writ even if his claim is for unliquidated damages.
It seems to me that in advancing this argument counsel lost sight of the provisions of sub-rule (4) of r. 6 of Order 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954, which provides inter alia: “In all other actions in the Supreme Court (except matrimonial causes, probate and admiralty actions, actions for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, and actions in which fraud is alleged by the plaintiff); the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim, or of the remedy or relief to which he claims to be entitled.”
I think the view of the law taken by the magistrate is on the face of the record wrong and so I did not call upon the appellants but rather called upon the respondent to satisfy me that the ruling is supportable. He was unable to so satisfy me and so I did not see fit to call on counsel for the appellants to reply to his submission.
Furthermore in undefended suits under Order 2, r. 11 of the said Schedule II, the defendants if they intend to defend are to file their notice of their intention to defend together with the affidavit setting out their grounds not less than five days before the date fixed for hearing. This presupposes that the defendants would be served in sufficient time by the plaintiff or her agent to enable them to comply with the order. In this case the defendants were served on 5 September 1969 and the hearing date was on 8 September 1969. Clearly they could not comply with the rule and since no directions were given by the court on 8 September 1969, it is obviously a wrong appreciation of the resultant situation to say as was said by counsel and acquiesced in by the district magistrate that the defendants were “in default of defence.” So that even if the suit could properly be placed on the undefended list, the plaintiff has by short service disabled herself from taking advantage of Order 2, r. 11 of Schedule II. Even if the plaintiff’s application succeeds the proper order to make is spelled out in Order 2, r. 9 of the said Schedule II.
[p.93] of [1971] 1 GLR 89
Having regard to all the circumstance I think the ruling of the magistrate is bad and cannot be supported. I will set aside the ruling of the magistrate and send the case back to the district court grade II with the direction that it proceed with the claim of the plaintiff, hear the evidence of the parties and decide the case in accordance with law.
Appellants to have their costs in this court against the respondent fixed at N¢40.00. The appeal is allowed.
DECISION
Appeal allowed.
Action to proceed.
B.T.A.
