HIGH COURT, SUNYANI
Date: 14 JANUARY 1975
MENSA BOISON J
CASES REFERRED TO
(1) Hession v. Jones [1914] 2 K.B. 421; 83 L.J.K.B. 810;110 L.T. 773; 30 T.L.R. 320.
(2) Hewitson v. Fabre (1888) 21 Q.B.D. 6; 57 L.J.Q.B. 449; 58 L.J. 856; 36 W.R. 717; 4 T.L.R. 510, D.C.
(3) Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189; [1951] 2 T.L.R. 935; 115 J.P. 613; [1951] 2 All E.R. 839, H L.
(4) Arthur v. The Republic [1973] 1 G.L.R. 205, C.A.
NATURE OF PROCEEDINGS
APPLICATION by the applicant to set aside a judgment on appeal and to re-enter the appeal heard in his absence. The facts are adequately stated in the ruling.
COUNSEL
K. Ewusie-Wilson for the applicant.
C. S. Takyi for the respondent.
JUDGMENT OF MENSA BOISON J
On 14 November 1974, this court allowed an appeal against the decision of the District Court Grade II, Nkoranza, by which that court dismissed the claim of the plaintiff-appellant (hereafter
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referred to as the plaintiff) for a debt of 0300.00. On 16 December 1974, the defendant-respondent (hereafter referred to as the defendant) by counsel pursuant to a motion filed on 2 December 1974, moved this court to set aside the judgment on the appeal and to re-list the appeal for fresh hearing.
The application was moved under Order 27, r. 16 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140 A), and counsel for the plaintiff took a legal objection against the rule. Learned counsel contended that Order 27, r. 16 was applicable where a judgment had been obtained in default of pleadings; but where, as in this case, an appeal had been heard in absence of the party, then the application to set aside the judgment therein lies under Order 36, r. 18. Even so an application under Order 36, r. 18, being limited within fourteen days after such judgment, the present application, it was further contended, would not lie for want of leave to extend the time within which to apply.
Learned counsel for the defendant stood fast on Order 27, r. 16, contending that the rule, besides judgments in default of pleadings, applied to a case such as this where a party has not appeared at the hearing of an appeal; there being no limitation of time. Lastly counsel appealed to the equity of the case, warranting the setting aside of the judgment since he contend d by his affidavit that the judgment in the appeal was, by the conduct of counsel for the plaintiff, obtained by fraud.
Now Order 27, r. 16 provides:
“Any judgment by default, whether under this order or under any other of these Rules, may be set aside by the Court or a Judge, upon such terms as to costs or otherwise as such Court or Judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order, such setting down may be dealt with by the Court or a Judge in the same way as if judgment by default had been signed when the case was set down.”
To dispose first with Order 36, r. 18, which states:
“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 rule is, save for an inconsequential part, exactly the same in wording as the English rule, Order 36, r. 33, see Annual Practice (1957 ed.). The commentator at p. 614, relying on Hession v. Jones [1914] 2 K.B. 421, notes that the rule applies only to verdicts and judgments at trial and does not apply to an order made by a Divisional Court. In my opinion therefore Order 36, r. 18 of L.N. 140A does not apply to appeals.
It still leaves it to counsel for the defendant, however, to sustain Order 27, r. 16. Order 27 as the heading shows deals with “default of pleadings.” So unless the actual text compels one to interpret it differently the “judgment by default” will arise where one party fails or omits to comply with
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a matter or a step in a proceeding that may comprehensively be termed a “pleading” which “in its general sense” is “the proceedings from the statement of claim to issue joined, i.e., the opposing statements of the parties,” or “any part of these proceedings.” See Wharton’s Law Lexicon (14th ed.), p. 769.
By this meaning Order 27, r. 16 will be applicable in setting aside a judgment obtained in such cases as failure to deliver answers to interrogatories or in default of discovery, or where the complaint is to set aside service of the writ and all subsequent proceedings including judgment, on the ground that service out of jurisdiction, under Order 11, was wrongly ordered: see Hewitson v. Fabre (1888) 21 Q.B.D. 6, D.C. The commentator’s note on the English rule under the sub-heading “Judgment or order made in the absence of a party” states specifically that “default in attending a hearing is not default within the meaning of the Rule,” i.e. Order 27, r. 15: see Annual Practice (1957) ed.), p. 451. From the above statements of the law, I hold that the instant application under Order 27, r. 16 is misconceived.
Now the application arises from a civil appeal from a district court. Civil appeals from decisions of the district courts to the High Court are regulated by Order 58 of L.N. 140A. Rule 13 (1) and (2) of that Order makes provision in the case where an appellant or his counsel does not appear, when the appeal is called on, in these terms:
“13. ( 1) If the appellant fails to appear in person or by professional representative when his appeal is called on for hearing, the appeal shall, on proof of service upon him of the notice of the hearing, stand dismissed with costs.
(2) Where an appeal has been dismissed owing to the non-appearance of the appellant or his professional representative, the Court may, if it think fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”
What happens where the respondent is absent is provided by Order 58, r. 14 as follows:
“If the respondent fails to appear in person or by professional representative when the appeal is called on for hearing, the Court shall on proof of the service upon him of notice of the hearing, proceed to hear the appeal ex parte.”
It is clear there is no analogous provision to r. 13 (2) in Order 58 for the benefit of the respondent, where the court has acted under Order 58, r. 14. The question posed is whether the absence in Order 58, r. 14 of the equivalent of Order 58, r. 13 (2) for the benefit of the respondent in the rules was intended or was a mere omission. An omission may well be the intention of the legislator and to supply it will be a usurpation of the function of the legislator. It has been said that: “A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.” See Maxwell on Interpretation
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of Statutes (12th ed.), p. 33. The danger lies in creating uncertainty in the law depending on which judge or court deals with the matter. As was pointed out by Lord Simmonds in Magor and St. Mellons Rural District Council v. Newport Corporation [1952] A.C. 189 at p. 191, H.L.:
“It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is discovered, the remedy lies in amending the Act.”
It would seem, however, that in the case where the omission relates to rules of procedure the overriding principle is the inherent jurisdiction of the court to do substantial justice. In the case of Arthur v. The Republic [1973] 1 G.L.R. 205, C.A. the applicant had been granted bail pending his appeal against conviction. On the appeal coming on for hearing at the Court of Appeal both the appellant and his counsel were absent. The appeal was, under the rules, dismissed and a warrant for the apprehension of the appellant accordingly issued and was accordingly executed. On a motion to re-list the appeal for hearing of the appeal on its merits, the court was faced with the fact that there was no provision in the rules to re-list a criminal appeal dismissed for non-appearance of the appellant on the appeal coming on for hearing.
As, however, there was such a provision under the civil rules empowering the court on application to re-list and hear a civil appeal if dismissed owing to the non-appearance of the appellant, the court, on the strength of its inherent jurisdiction to do substantial justice, re-listed the criminal appeal. In doing so this is what the court said at p. 207:
“It seems clear to this court that Part III does not contain any provision analogous to rule 23 (2), but, in the opinion of this court, it would be a blot on the law if the law were to be such that an appellant in a criminal case whose liberty is in jeopardy should have no opportunity of explaining his absence from court so that he can have his appeal heard on the merit, whereas an appellant in a similar position in a civil appeal is entitled, upon satisfactory explanation, to have his appeal re-entered for hearing and determination on the merit. In the opinion of this court, there can be no justification for denying an appellant in a criminal appeal an indulgence which is usually granted to an appellant in a civil appeal.
Both counsel … agreed with the court that in the absence of specific provisions in the rules this court had an inherent jurisdiction to do substantial justice in any matter coming before it . . . “
I find that the Court of Appeal Rules, 1962 (L.I. 218), make provisions for a respondent at the Court of Appeal who did not appear and the appeal was heard ex parte to apply to have the appeal re-heard. That is rule 25 (1) which provides: “Where an appeal has been heard ex parte under rule 24 and any judgment has been given therein adverse to the respondent, he may apply to the Court to set aside such judgment and to
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re-hear the appeal.” There is no analogous rule in Order 58 of L.N. 140A for the benefit of a respondent in the High Court in similar circumstances where rule 25 (2) of L.I. 218 would apply in the Court of Appeal.
After considering the grounds alleged in the affidavit and all other circumstances I am of opinion that substantial justice will be done by granting the application by ordering the appeal to be re-entered for re-hearing. The effect is that the ex parte judgment is set aside.
DECISION
Application granted.
Appeal to be re-entered for re-hearing.
Ex parte judgment set aside.
S.E.K.
