HIGH COURT, SEKONDI
Date: 15 JANUARY 1975
EDUSEI J
CASES REFERRED TO
(1) Adu v. Ankumah [1972] 1 G.L.R. 22.
(2) Safo-Adu v. Boampong [1974] 2 G.L.R. 107.
(3) Agyeman v. Ghana Railway and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C.60.
(4) R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 Q.B.D. 574; [1957] 2 W.L.R. 498; 101 S.J. 248; sub nom. Re Gilmore’s Application [1957] 1 All E.R. 796, C.A. [p.141] of [1975] 1 GLR 140
NATURE OF PROCEEDINGS
RULING on an application to set aside an interlocutory judgment. The facts are sufficiently set out in the ruling.
COUNSEL
Charles Hayfron-Benjamin for the defendants-applicants.
R. S. Blay (with him Polley) for the plaintiff-respondent.
JUDGMENT OF EDUSEI J.
The plaintiff sued out a writ of summons on 11 October 1974, claiming 025,000.00 for libel against the defendants. The defendants by their solicitors on 31 October 1974, sent a letter together with a notice of appearance and a postal order for 90p. to the registrar of this court for filing and service. On 15 November 1974, the registrar of this court wrote to inform the solicitors of the defendants that their document had been assessed at 01.10 and the difference of twenty pesewas should be remitted to him without delay. In the meantime on 14 November 1974, the plaintiff s solicitor filed a motion for interlocutory judgment in default of appearance and this was granted on 25 November 1974.
The defendants have now applied to this court to set aside the interlocutory judgment. The affidavit in support of this application has stated the circumstances which made this registry unable to file the document for entry of appearance. This in short was that the amount of 90p. sent with the necessary documents for the entry of appearance was said to be insufficient and it states:
“In the meantime the plaintiff through his solicitor made a search at the registry of the High Court, Sekondi, and I am informed by my counsel and verily believe the same to be true that even though he was informed that there was a memorandum of appearance which required an extra twenty pesewas to perfect payment he nevertheless filed an ex parte motion for judgment.”
My own recollection of this matter is that on 25 November, the day the motion was argued, I drew the attention of Mr. Polley who appeared for the plaintiff, that there was a memorandum of appearance on the court’s docket (though not filed) but it required an extra twenty pesewas to complete the payment of the assessed fees. I asked Mr. Polley if he would agree to an adjournment for a reasonable time so that the exact fee could be paid. He, however, insisted on his rights that there was no entry of appearance and proceeded to take his interlocutory judgment.
Mr. Blay who has now appeared for the plaintiff in this motion had argued that no reasonable defence has been disclosed in the affidavit supporting the motion to set aside the judgment and in the circumstances the application must be refused. He referred me to such cases as Adu v. Ankumah [1972] 1 G.L.R. 22; Safo-Adu v. Boampong [1974] 2 G.L.R. 107 and Agyeman v. Ghana Railway and Ports Authority, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60. In this last case (i.e. Agyeman’s case) the Court of Appeal said:
“In the exercise of discretion to set aside a judgment obtained in default of appearance, a judge must be satisfied that the party praying for the exercise of the court’s discretion has disclosed either by an
[p.142] of [1975] 1 GLR 140
affidavit or some other acceptable means that he has reasonable defence to the claim and that it would be in the circumstances, unjust to leave his case unadjudicated upon.”
This is the trump card of Mr. Blay and there is no doubt that the principle herein enunciated is firmly established.
But I think I have to consider some of the rules relating to the entry of appearance. Order 12, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), are in these words:
“1. A defendant shall enter his appearance to a writ of summons by delivering to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of the defendant’s solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.
2. In the case of a defendant desiring to enter an appearance in person, he may in lieu of delivering to the proper officer the memorandum of appearance and the duplicate thereof enter the appearance through the post by sending to the proper officer by prepaid registered letter—
(1) A memorandum of appearance and duplicate thereof both fully filled up;
(2) A postal order for 2s. 6d.;
(3) A notice of appearance and a copy thereof all duly filled up; and
(4) Two envelopes each sufficiently stamped, one addressed to the plaintiff’s solicitor (or to the plaintiff if he sues in person) at the address for service, and the other addressed to the defendant entering the appearance.
On receipt of these documents the proper officer shall forthwith enter the appearance as of the date when he receives the memorandum and shall seal the duplicate with the official seal, showing the date on which it is sealed, and shall seal the notice of appearance with the official seal, showing the date of the appearance, and shall deliverer personally or post the notice to the plaintiff or his solicitor, and shall deliver or post the duplicate to the defendant, and shall file a copy of the notice.”
Rules 3 (1), 4 (1) and 10 of Order 12 also provide that:
“3. (1) A defendant shall, on the date on which he enters an appearance to a writ of summons, give notice of his appearance to the plaintiff’s solicitor, or if the plaintiff sues in person, to the plaintiff himself. The notice may be given either by notice in writing served in the ordinary way at the address for service or by prepaid registered letter directed to that address and posted on the day of entering
[p.143] of [1975] 1 GLR 140
appearance in due course of post, and shall in either case be accompanied by the sealed duplicate memorandum.”
“4. (1) The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his place of business within the jurisdiction which shall be an address for service.”
“10. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.”
It is quite clear that the assessment made by this registry required an amount of 01.10, i.e. twenty pesewas more than the 90p. which the defendants’ solicitors, Messrs. Hayfron-Benjamin & Co., Kumasi, sent to the registrar on 31 October 1974. The breakdown of the fees as disclosed in the court’s docket is as follows:
(a) Notice of appearance .. .. .. .. .. 20p.
(b) Memorandum of appearance (two defendants) .. .. .. 50p.
(c) Service (two documents) .. .. .. .. .. 20p.
(d) Mileage—four miles .. .. .. .. .. 20p.
1.10p.
It becomes necessary to consider whether this registry was justified in asking the defendants’ solicitors to pay 50p. for the memorandum of appearance. It is true that Order 12, r. 2 requires the sum of 2s. 6d. (now 25p.) for a memorandum of appearance in respect of a defendant. It is also true that there are two defendants in this action but they were being represented by the same solicitors, and the names of the defendants (as stated in Order 12, r. 10), “shall be inserted in one memorandum.” My view is that if the two defendants were represented by two different solicitors where each solicitor would file his memorandum of appearance on behalf of each defendant then each defendant would be assessed separately but not where the same solicitor has appeared in the same memorandum for the two defendants. The fee of 25p. chargeable for entry of appearance is for the document and not the person. It is for the filing of the memorandum of appearance, and in my view, the law requires payment of 25p. and that payment should not be based on the number of persons on whose behalf a solicitor enters an appearance in one document. I do not suppose that a statement of defence filed by a solicitor on behalf of two or more defendants ought to be assessed on the number of defendants. The appropriate fee that is chargeable will be that which a party pays in filing a statement of defence. The other fees charged are regulated by Order 68, r. 1 which reads:
“The fees payable in respect of the matters specified in Parts III, IV and V of Appendix M shall be as prescribed therein. Such of the said fees as are payable in a cause or proceeding shall be paid by the party concerned and may afterwards be recovered as costs if the Court shall so order.”
[p.144] of [1975] 1 GLR 140
In so far as fees in respect of the other three matters are concerned I think they were properly assessed and charged.
In my view therefore the proper fee which the defendants were obliged to pay for the memorandum of appearance was 25p. and not 50p.; the total fees payable therefore amounted to 85p. and not 01.10 as assessed by this registry. It follows that the amount of 90p. sent by the defendants’ solicitor was more than sufficient to cover the court’s fees and this registry erred in failing to seal and file the memorandum and notice of appearance.
The next question to be asked is this: is it fair and just that the defendants should be damnified by the mistake of an official of this court? I think not. In the Agyeman case already cited, the Court of Appeal underlined the exercise of the court’s discretion in these words:
“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 his discretion. In other words, the operative circumstances must be such that it would amount to injustice to leave the defendants’ case unadjudicated upon.”
It is quite evident that to permit the interlocutory judgment to remain against the defendants through the fault of this registry would be unjust and would run counter to our accepted notions of justice and fair play, and “injustice may well result, and a sense of injustice is a grievous thing”: per Romer L.J in R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 2 W.L.R. 498 at p. 506, C.A. The memorandum and notice of appearance were received in this registry on 11 November 1974, and the plaintiff s motion for interlocutory judgment was filed on 14 November 1974. In view of the matters to which I have adverted the entry of appearance ought to have been accepted for sealing and filing three days before the plaintiff s application for interlocutory judgment was filed.
Be that as it may, the defendants made good the amount demanded of them by this registry and the notice of appearance was filed on 29 November 1974, though the proper time was on 11 November 1974. In order that justice may appear to be done in the circumstance, I set aside my judgment given on 25 November 1974 and order that the entry of appearance of the defendants be regularised to take retroactive effect from 11 November 1974. This regularisation must be carried out by the proper official of this court. The excess of 25p. should be refunded to the defendants. The computation of the time limited for filing a defence is to commence from today, and here too justice requires that it should be so. I see from the court’s docket, however, that the statement of defence has been filed since 14 January 1975, and it should, in the circumstances, be taken as having been properly filed.
DECISION
Application granted.
S.Y. B.-B.
