ATTOH-QUARSHIE vs. OKPOTE [1973] 1 GLR 59

CASES REFERRED TO

(1) Hamp-Adams v. Hall [1911] 2 K.B. 942; 80 L.J.K.B. 1341; 105 L.T . 326; 27 T.L.R. 531, 55 S.J.

647, C.A.

(2) Anlaby v. Praetorius (1888) 20 Q.B.D. 764; 57 L.J.Q.B. 287; 58 L.T. 671; 36 W.R. 487; 4 T.L.R.

439, C.A.

(3) Steers v. Rogers (1891) 7 T.L.R. 183.

(4) Nyarko v. Akowuah (1954) 14 W.A.C.A. 426.

(5) Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321.

(6) Freeman v. Tranah (1852) 21 L.J.C.P. 206; 16 Jur. 952; 12 C.B. 406; 138 E.R. 964.

(7) Harley v. Samson (1914) 30 T.L.R. 450.

NATURE OF PROCEEDINGS

APPLICATION to set aside a judgment given in default of appearance. The facts are fully set out in the judgment.

COUNSEL

Asafu Adjaye for the applicant.

Nartey for the respondent.

JUDGMENT OF HAYFRON-BENJAMIN J.

This is an application by motion on notice for an order reviewing the order of this court made on 21 February 1972 dismissing the defendant-applicant’s (hereafter described as the applicant) application to relist a motion filed on 17 January 1972. It also asks for an order setting aside the default judgment delivered by this court on 1 April 1971. The motion of 17 January 1972 was one praying for an order to set aside a default judgment delivered by this court on 1 April 1971.

The plaintiff (hereafter referred to as the respondent) by her writ of summons dated 27 August 1970 claimed damages for the negligence of the applicant. No appearance was entered by the applicant and the respondent applied for and obtained an interlocutory judgment on 10 November 1970. Abban J. entering judgment said:

“The defendant was served with the writ of summons together with the statement of claim on 26 October 1970 and up to date he has

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not entered appearance and he is out of time. In the circumstances, let interlocutory judgment be entered against the defendant for damages for negligence. Damages to be assessed on a date to be fixed by the registrar.”

The solicitor for the respondent then wrote a letter to the senior registrar on 19 November 1970 requesting that 30 November 1970 be fixed for the assessment of damages. There is nothing on the record to show that a copy of this letter was sent to the applicant. The case however was fixed for 30 November 1970 for the assessment of the damages. The case was further adjourned to 15 December 1970 when the evidence as to damages was given and completed on 16 December 1970. Judgment was given on 1 April 1971. Notice of judgment after trial was filed on 29 April 1971. There is an affidavit of personal service of this judgment on 8 May 1971 at Chorkor, Accra. On 21 May 1971, a writ of fieri facias was issued from the High Court for the attachment of the property of the applicant. On 13 July 1971 the applicant filed a motion to set aside the default judgment on the ground that he was never served with any writ of summons nor any statement of claim by the respondent. He admitted however that he was served with notice of the judgment after trial. The respondent filed an affidavit in opposition in which she claimed that the applicant was duly served with the writ of summons and that notice of it was even given to the applicant’s insurers who repudiated liability on the ground of breach of the “named driver condition” in the policy. They charged the applicant with abusing the legal process by rushing an application to set aside a judgment a day before the sale of his properties which had been attached under the writ of fieri facias. When the application came on 27 July 1971, i.e. the last motion day before the long vacation, I dismissed it and then stated that “it is clear that service of the writ of summons and the statement of claim were served on the applicant. No order as to costs.” I dismissed this motion because of the affidavit of service filed by the court bailiff who was entrusted with the service of the writ and the statement of claim; the answer to the search filed by the respondent’s solicitor which stated “No appearance”; and the fact that counsel who held brief for the applicant’s counsel apparently had no instructions to apply for leave to lead oral evidence or to cross-examine the bailiff who claimed to have served the applicant. I did not notice and my attention was not drawn to Order 9, r. 17 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), [set out in the headnote].

On 17 January 1972 the applicant applied again for an order setting aside the default judgment delivered on 1 April 1971. On the return date neither the applicant nor his counsel was present when the motion was called and I dismissed it. Before the court rose, however, counsel for the applicant appeared and asked that the motion be relisted for hearing. At that time, however, the respondent’s counsel had left the precincts of the court and I therefore told counsel to file a fresh motion. Counsel

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instead filed a motion to relist the motion; I drew his attention to what I had told him and dismissed his motion to relist. He has now filed a fresh motion to set aside but has still coupled it with an application to relist the earlier one. I shall deal with only that part of the application which seeks to set aside the default judgment entered on 1 April 1971.

The major obstacle to the applicant’s application is the ruling of this court on 27 July 1971 quoted above. The respondent contends that this is conclusive of the matter and that the court has no power to reopen the issue. He submits that it is not open to the applicant, having failed to obtain a favourable order on 27 July 1971 to make a fresh application on substantially the same grounds. The applicant however contends that in the absence of any law to the contrary, a court of plenary jurisdiction has inherent powers to prevent miscarriage of justice and to correct grave and palpable errors committed by it; his counsel submits that it is the duty of the court to correct injustice and set aside, revoke, recall or vacate its previous invalid orders such as where the court makes an order affecting a person who is not a party to the proceedings, or where the court overlooks a mandatory provision of the law. He states that Order 9, r. 17 is a mandatory provision of the law, and having been overlooked both in the application for default judgment and in the application to set aside the court ought to exercise its inherent powers and recall or vacate that judgment and the subsequent order made on the application to set aside.

Order 9, r. 17 of the Supreme [High] Court (Civil Procedure) Rules 1954 (L.N. 140A), provides that: [His lordship here stated the provisions as set out in the headnote and continued:] This rule is in pari materia with Order 9, r. 17 of the English Rules of Court. In England the plaintiff or his legal advisers file the writ in the registry and then are responsible for serving the same on the defendant. It is their duty to make the endorsement, and the legal mind readily appreciates a sanction being attached to this duty. He, the plaintiff, is debarred from proceeding by default if he fails to perform this duty. In Ghana however Order 9, r. 18 provides that (1) “Service of a writ of summons, and of any petition, notice, order or other document of which service is required shall be made by a bailiff.” It is therefore difficult to appreciate why the respondent can be debarred from proceeding by default where the bailiff over whom he has no control fails to endorse the writ in accordance with rule 17 of Order 9. In India where writs and other documents are served by serving officers (officers akin to our court bailiffs) the only consequence of failure to endorse the writ with service is that the writ is not treated as duly served. See Order 5, r. 18 of the Indian Code of Civil Procedure. The end result is therefore the same; the respondent cannot proceed by default on a writ which is treated as not served.

In Hamp-Adams v. Hall [1911] 2 K.B. 942, C.A., a writ of summons was served, but the date of service was not endorsed thereon within three days as required by the rules. The plaintiff subsequently signed

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judgment in default of appearance and a verdict for damages was given by a jury. An application to set aside the default judgment was refused by the High Court. The defendant-applicant appealed and in the appeal court argued that under the order or rule the plaintiff was not at liberty to proceed by default, and that the defendant was entitled ex debito justitiae to an order that the judgment and the subsequent proceedings be set aside. Reliance was placed on the case of Anlaby v. Praetorius (1888) 20 Q.B.D. 764, C.A. For the plaintiff it was argued that the failure to endorse the writ within the due time was a mere formal defect or irregularity which could be and which was in fact waived by the defendant by not making his application within a reasonable time after knowledge of the irregularity. The English Court of Appeal held that non-compliance with the order was not an irregularity which could be waived and that the plaintiff not having complied with the rule was not entitled to proceed by default, and that the judgment and order must be set aside. Buckley L.J. said at p. 945 that, “Where a plaintiff proceeds by default every step in the proceedings must strictly comply with the rules; that is a matter strictissimi juris.” Vaughan-Williams L.J. also said at p. 944:

“Where proceedings are taken by a plaintiff in the absence of the defendant it is most important that there should be at every stage a strict compliance with the rules, and therefore it is a reasonable and proper thing in the case of proceedings by default to treat non-compliance with such a rule as Order 9, r. 15 (Now 17), not as a mere irregularity which can be waived, but as a matter which prevents any further proceedings from being taken on the writ.”

I accept the reasoning of the learned Lord Justices and I hold that Order 9, r. 17 is a mandatory provision of law, non-compliance with which is fatal to subsequent proceedings by default. In this case even though there is no endorsement of service on the original writ itself, the bailiff who was entrusted with the service of the writ swore a separate affidavit of service and filed it on the docket on the same day. It is urged on behalf of the respondent that this is sufficient for the purposes of Order 9, r. 17. Our rules of court were formulated and made on 26 May 1952 while Ghana was part of the overseas territories of Her Britannic Majesty. We had the experience of several other British territories from which to borrow, if we were committed to borrowing. For example, Order 5, r. 18 of the Indian Code of Civil Procedure, 1908, provides that:

“The serving officer, shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.”

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Our rule, like its parent English rule, does not make allowance or provision for annexing an affidavit of service. However in the English case of Steers v. Rogers (1891) 7 T.L.R. 183 a writ issued in the Chancery Division was duly served by leave in Pretoria, South Africa, on a defendant. Within three days of such service it was returned with a sheet attached to it by a seal, on which sheet was endorsed a statement that the writ was duly served on such defendant on 7 August 1889, and a certificate of the Secretary of State accompanied it as to the position of the person who served it. The court refused to set aside a default judgment obtained on the said writ, in other words the court seemed to have treated the statement and the certificate of the Secretary of State as an endorsement. This case was however decided by the Chancery Division in 1891 before the Court of Appeal decision of 1911 in the Hamp-Adams case (supra), and I do not think any reliance can be placed on it. Moreover it seems that what weighed heavily with Romer J. in that case was the absence of bona fides in the applicant. The rule itself provides that every affidavit of service shall mention when the endorsement was made. The affidavit filed by the bailiff does not state that any such endorsement has been made. I am of the view therefore that the bailiff who was entrusted with the service of the writ did not carry out his duties properly as provided for by the rules, and that the respondent could not legitimately have proceeded to judgment by default of appearance.

Having found that the provisions of Order 9, r. 17 are mandatory, it is now necessary to consider whether or not the submission of counsel that the court has an inherent power to vacate its own invalid orders is well founded. Inherent power is an authority not derived from any external source, possessed by a court. Whereas jurisdiction is conferred on courts by constitutions and statutes, inherent powers are those which are necessary for the ordinary and efficient exercise of the jurisdiction already conferred. They are essentially protective powers necessary for the existence of the court and its due functioning. They spring not from legislation but from the nature and constitution of the court itself. They are inherent in the court by virtue of its duty to do justice between the parties before it. The scope of inherent powers however cannot be extended beyond its legitimate and circumscribed sphere. The safest guide lines are precedents. In the case of Nyarko v. Akowuah (1954) 14 W.A.C.A. 426, Spooner presiding over the Chief Commissioner’s Court, Ashanti, gave a judgment on 13 May 1949. His appointment to that court had lapsed on 12 May 1949. His judgment was therefore a nullity. Later when he was re-appointed he called the parties, recorded the fact that he had no jurisdiction when giving the judgment, and said that he was now vested with jurisdiction, he would review his earlier judgment. This he did and delivered an identical judgment without any hearing of the parties. A strong West African Court of Appeal (Foster-Sutton P., Coussey J.A. Windsor-Aubrey J.) held that the second judgment was bad as it was expressly

[p.66] of [1973] 1 GLR 59 stated to be given on review of the first which was given without jurisdiction, and therefore a nullity. Coussey J.A. (as he then was) delivering the unanimous judgment of the court said at p. 427:

“The learned Judge from whose ruling this appeal is brought expressed the opinion in effect that when Mr.

Spooner said he was reviewing his judgment he used the wrong expression and that he was, in fact, intimating that his judgment of the 13th May was a nullity and that he was there and then, on the 29th June, about to deliver the one and only judgment in the appeal.

With respect to the learned Judge, Mr. Spooner did not use the wrong expression for the procedure he followed. In overruling the appellant’s objection he recorded deliberately that he was proceeding under Order 41, rule 1. That was the authority he invoked in the particular matter and it would, in my opinion, be to the prejudice of the appellant to now speculate as to what Mr. Spooner might have done. In other words, since Mr. Spooner assumed, as a matter of law, that there was something in his judgment of the 13th May that was capable of review, I do not think an argument to the contrary should prevail to the material injury of an appellant who was entitled to reason to the effect that a review of a void judgment is itself a nullity and no appeal is necessary to get rid of it.”

I must confess that I have not always understood this highly technical reasoning. There is no doubt that a void judgment of a court of inferior jurisdiction need not be set aside, but to say that a formal order vacating such an order is itself void sounds strange to me. The learned judges placed an extremely technical meaning on the word review presumably because the Chief Commissioner himself had indicated the order and the rule under which he was acting. It may be that no review is possible of a void order; but a void order though of no legal effect can exist on the record and can and ought to be vacated. Lawyers sometimes loosely talk of this process of vacating or recalling or revoking orders as review. An Act of Parliament which contravened the suspended Constitution is under the Constitution void and of no effect. The power of the court so to declare such an Act unconstitutional is generally referred to by lawyers as a power of review of Acts of Parliament. The unconstitutional Act though of no effect would remain on the statute books until removed therefrom. Nothing appears in the report of the case to indicate whether the court considered whether Spooner could have exercised inherent powers. In any event having confined themselves to Order 41, r. 1 under which Spooner acted, there was little room left for the learned judges to consider inherent powers. The case of Nyarko v. Akowuah (supra) therefore, in my view is no authority against the proposition that the court has inherent powers to vacate or recall its own invalid orders.

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The next case to consider is Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321 decided by this court. In that case the point was raised whether where the erstwhile National Liberation Council had given a decision under section 39 of the Chieftaincy Act, 1961 (Act 81), which was by that Act made final and conclusive, they could later review or recall or vacate that decision if they were satisfied that a mistake had been made. This court decided that they could not. It is submitted on behalf of the applicant that this decision is not applicable to this case because:

(a) the N.L.C. when acting under section 39 of the Chieftaincy Act, 1961 (Act 81), was only a quasi-judicial authority and not a court exercising general or plenary jurisdiction and that such a body has no inherent powers;

(b) in that case there was no question of the N.L.C. having overlooked a mandatory provision of the law.

I am not prepared and at any rate it is not necessary to decide whether a body exercising quasi-judicial powers is invested with inherent powers or not. All I say on the first of counsel’s submissions is that even if the N.L.C. had inherent powers, they could not exercise them in direct contravention of clear provisions of a statute. The N.L.C.’s decision was by the operation of the provisions of section 39 of the Chieftaincy Act, 1961 (Act 81), made final and conclusive, i.e. beyond recall. I however completely agree with learned counsel that in the Wiamoasehene case there was no allegation that in coming to their first decision the N.L.C. had overlooked any mandatory provision of the law. I am therefore of the view that the Wiamoasehene case presents no obstacles to the success of this application.

The next question to be decided is the scope of the inherent powers of the High Court, and the conditions and circumstances under which these powers would be exercised. Tradition has sanctioned three areas where the court generally invokes its inherent powers. First, where the exercise of the powers is necessary for the maintenance of the court’s dignity and independence; such powers include the power to punish for contempt and enforce obedience to its mandates and judgments and orders. Secondly where the powers are necessary to ensure the control of its officers (including lawyers) the power to hold its officers to a proper accountability for any default or misfeasance in the execution of its process. Thirdly powers to prevent wrong or injury being inflicted by its own acts or orders or judgments including the power of vacating judgments entered by mistake and of relieving judgments procured by fraud, and a power to undo what it had no authority to do originally.

In this case we are concerned only with the third area of the exercise of its inherent powers. It is the bounden duty of courts to see that if a person is harmed by a mistake of the court or its officers, he should be restored to the position he would have occupied but for the mistake.

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This is amply summoned up in the maxim Actus curiae neminen gravabit (an act of the court shall prejudice no one). This maxim according to Cresswell J. in Freeman v. Tranah (1852) 138 E.R. 964 at p. 967 “is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law.”

The court has been notified that the respondent has already gone into execution and sold the properties of the defendant in satisfaction of the judgment debt; in the circumstances it is suggested that the court should not exercise its inherent powers so as to affect adversely the rights thus acquired by “third parties, i.e. the purchasers of the defendant’s property.” The auctioneer too has earned his commission for conducting the auction sale. In Harley v. Samson (1914) 30 T.L.R. 450 the plaintiff obtained a default judgment against a defendant who did not appear. The plaintiff later assigned the judgment debt due from the defendant to him to a moneylender who had in the meantime obtained judgment against the plaintiff. After this the defendant applied to the court to set aside the default judgment. It was held by Scrutton J. (as he then was) that the moneylender was a bona fide purchaser and holder for value without notice without regard to the judgment debt due from the defendant, and for that among other reasons, the court would decline to exercise its discretion to set aside that judgment. The learned judge said that it was admitted by counsel that he had power notwithstanding the lapse of time (one year), to set aside the judgment, and it was also clear that if the facts contained in the plaintiff’s answers to interrogatories had been brought to his attention at the time he would not have entered judgment for the plaintiff. It is not clear from the report of this case whether the learned judge meant that if the real facts had come to his notice he would have been deprived of power or jurisdiction to enter default judgment, or that he would not have exercised his jurisdiction to do so. Be that as it may, in this case the present application to set aside the judgment was filed on 10 March 1972 and was served on the solicitor for the respondent on 13 March 1972 at 11.30 a.m.

On 17 March 1972 the registrar who is also the deputy sheriff instructing the auctioneer wrote to the auctioneer requesting him to suspend the sale of the property of the applicant until the application to set aside the judgment has been determined. The 17 March 1972 was a Friday. The auctioneer wrote back on the same day acknowledging the receipt of the deputy sheriff’s letter at 3 p.m. on 17 March 1972. He said that unfortunately he had sold the property of the defendant at 10 a.m. that same day and had received part-payment of the purchase price. He could therefore not suspend the sale. The auctioneer’s letter was sent by hand and received on 20 March 1972 at the registry. The auctioneer in sales under a writ of fieri facias is in law the agent of the judgment creditor and the solicitor of the respondent as I have said had notice of the application to set aside the sale at least four clear days before the sale took place.

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In these circumstances I do not think the fact of execution should debar the court from exercising its inherent powers to vacate a judgment or an order. I therefore vacate the orders I made on 27 July 1971 and 31 January 1972 dismissing the applicant’s application to set aside the default judgment and I hereby grant the application then prayed for and set aside the default judgment entered on 10 November 1970 and the damages and costs ordered on 1 April. Since the ground for setting aside the judgment is that the court overlooked a mandatory provision of the law, which entitles the applicant to have the judgment set aside ex debito justitiae, there will be no order as to costs.

I must end this somewhat lengthly ruling by commenting on the growing number of applications coming before the court for the setting aside of judgments or orders on the ground of non-service, even where the serving bailiff has sworn an affidavit of service.

The rules in this regard have worked well since they were promulgated, but it seems to me that the time has come when we can profitably have a second look at them. In several common law jurisdictions where their postal systems are inadequate, and the methods of service through solicitors or agents have not been properly developed, the courts as here, have special process servers. In many of such jurisdictions, however, the acknowledgement on the original document of the party served is required. For example Order 5, r. 16 of the India Code of Civil Procedure provides that:

“Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.”

Those responsible for our rules may look at this and probably work out rules to be followed where the person served refuses to accept service or sign the acknowledgment.

DECISION

Application granted.

S.O.