HIGH COURT, SUNYANI
Date: 15 MARCH 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Wreh v. Wreh, High Court, Accra, 11 November 1965, unreported; digested in (1966) C.C. 16.
(2) Ghana Cargo Handling Co. v. Dolphyne, High Court, Sekondi, 6 July 1970, unreported; digested in (1970) C.C. 84.
(3) Attoh-Quarshie v. Okpote [1973] 1 G.L.R. 59.
(4) 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.
(5) Re Pritchard [1963] Ch. 502; [1963] 2 W.L.R. 685; 107 S.J. 154; [1963] 1 All E.R. 873, C.A.
(6) Attorney-General v. Levandowsky & B.A.S.E. Group [1971] 2 G.L.R. 58, C.A.
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NATURE OF PROCEEDINGS
APPLICATION to set aside a judgment in default of appearance on the grounds, inter alia, that the writ of summons was not endorsed in accordance with Order 9, r. 17 of L.N. 140A. The facts are sufficiently stated in the ruling.
COUNSEL
Oppong for the applicant.
Kumi for the respondents.
JUDGMENT OF OSEI-HWERE J
The plaintiffs issued an ordinary writ, accompanied by a statement of claim, wherein the claim against the defendant was for:
“(a) An order of the court upon the defendant to pay 020.00 each month to the first plaintiff for the maintenance of the second and third plaintiffs who are infant daughters of the defendant until they finish school or reach the age of sixteen years;
(b) An order of the court upon the defendant to pay to the first plaintiff the sum of 05,000.00 representing expenses incurred by her over the past six and half years in respect of the second and third plaintiffs towards their living maintenance and subsistence; and
(c) Mesne profit.”
The writ and the accompanying statement of claim were served on the defendant on 28 November 1973 according to the affidavit sworn to by the serving bailiff. The defendant failed to enter an appearance and on 11 December 1973 the plaintiff filed a motion ex parte, and as stated in the motion, “for orders to enter both final and interlocutory judgments against the defendant.” The plaintiffs managed to get the motion listed for hearing the very day it was filed and it was indeed placed before the court and argued that same day by their counsel. Counsel asked for final judgment and whereupon the court proceeded and entered judgment for the plaintiffs in the sum of 05,000.00 being expenses incurred by the first plaintiff in respect of the second and third plaintiffs towards their living maintenance and subsistence; and it was further ordered that the defendant do pay to the first plaintiff 020.00 a month for the maintenance of the second and third plaintiffs until they attained the age of sixteen years. Costs of 0100.00 were awarded in addition inclusive of outlays.
No sooner had they obtained their judgment than they caused fi. fa. to issue the very next day against the contents of the goods in the defendant’s store as well as his personal effects and his motor-cycle. On sensing the awe and potency of the law the defendant now, apparently too late, entered his appearance on 18 December and his solicitor gave notice to the same effect. His solicitor, on that same date, ex abundanti cautela undoubtedly, also filed a motion on notice for leave to enter appearance on behalf of the defendant. The notice which was opposed by the plaintiffs, finally came to be heard on 22 January 1974 and the application for leave to enter an appearance was allowed. Thereafter the defendant moved the court to set aside the judgment entered in favour of the plaintiffs and the instant ruling pertains to that motion.
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In this motion to set aside the judgment counsel for the defendant-applicant has relied on two legal grounds, apart from the other grounds disclosed in the supporting affidavit. In the first place counsel contended that before the plaintiffs took their default judgment against the defendant there was no indication that the writ had been endorsed with service thereof in accordance with Order 9, r. 17 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Secondly, it was argued that it was wrong for the plaintiffs to have proceeded to sign final judgment without first asking for an interlocutory judgment since the 05,000.00 claimed could not represent a liquidated demand. Counsel for the plaintiffs, on the other hand held the contrary view that the failure to endorse the writ was the bailiff ‘s default which should not be visited on the plaintiffs. He considered that the default was, at any rate, not of such significance as could avoid the default judgment. He was of the settled opinion that the judgment was regular as the 05,000.00 awarded was a liquidated demand as the amount claimed has been named on the writ and he supported himself with the authorities of Wreh v. Wreh, High Court, Accra, 11 November 1965, unreported; digested in (1966) C.C. 16 and Ghana Cargo Handling Co. v. Dolphyne, High Court, Sekondi, 6 July 1970, unreported; digested in (1970) C.C. 84. Counsel also strongly felt that the previous order granting the defendant leave to enter appearance was not justified in law since under the English Supreme Court Rules of 1962 (which counsel thought are the rules now in force) there is no provision that leave should be sought before the defendant could enter an appearance after judgment.
To answer the last point raised in the argument of counsel for the plaintiffs-respondents first, I think that he was plainly under a misconception as to the state of the Supreme Court Rules in England when he thought that the rules that apply now are the Supreme Court Rules of 1962. Order 12, r. 6 of the English Supreme Court Rules which I applied by virtue of Order 74 of our own L.N. 140A in answer to the objection raised that the application to enter a late appearance was not properly before the court related to the Rules of the Supreme Court, 1965, which are the operative rules in England. In rejecting the objection of counsel for the plaintiffs this is what I said, inter alia:
“In this motion the application is simply for leave to enter a late appearance . . . The entry of late appearance is covered by Order 12, r. 16. The provisions in Order 12, r. 16 are analogous to Order 12, r. 6 of the English New Supreme Court Rules. In the English Supreme Court Rules it is specifically laid down that a defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of court. In our Order 12, r. 16 the permission to enter a late appearance is limited to the entry of appearance before judgment and there seems to be no provision relating to an entry of appearance after entry of judgment. It is here that Order 74 of our rules comes in conveniently . . . Order 12, r. 6 (1) of the English New Supreme Court Rules can, therefore, be applied to cover the point in question. By the English practice the leave of the court is necessary to enter an appearance. Such leave to enter an appearance after
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judgment cannot be granted on an ex parte application. The application for such leave is by motion or summons on notice. The defendant-applicant has fulfilled these conditions and I think that his motion is properly before the court.”
In regard to the point raised that the 05,000.00 claimed as expenses incurred represented a liquidated demand I think that I sufficiently delivered myself on this matter in my ruling of 28 January 1974, and I have no cause to recant or to look beyond it. This is what I said, inter alia:
“The question that here poses itself for determination is whether the 05,000.00 can represent a liquidated demand. It has been explained at page 35 of the Supreme Court Practice 1967 that a liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable under or by virtue of a contract. This amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, it is further explained, requires investigation beyond mere calculation even though it be specified or named as a definite figure, then the sum is not a debt or liquidated demand within the contemplation of Order 13, r. 17, but constitutes ‘damages’ in which case the plaintiff is to enter interlocutory judgment for the damages. I think that if the action had been contested the plaintiffs could not have been entitled to the 05,000.00 claimed as a matter of mere arithmetical calculation but that they would have been obliged to go beyond that in justifying the acceptance of each figure representing the expenses incurred. It is for this reason that I hold that the 05,000.00 claimed represents damages. The final judgment entered in respect of this claim was clearly irregular.”
I should have thought that the above ruling would have served the plaintiffs’ counsel as the writing on the wall when this motion was brought to set aside the irregular judgment. Instead he now embarks on this exercise in futility to rescue his judgment.
The remaining outstanding issue of importance is to consider the effect of non-compliance with Order 9, r. 17. That rule provides as follows:
“The person serving a writ of summons shall, within three days at most after such service, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This rule shall apply to substituted as well as other service.”
There is indeed an affidavit of service indicating that the writ was served on the defendant on 28 November 1973. Thereafter there should have been an endorsement on the writ itself of the service thereof at most within three days of the service of the writ in compliance with Order 9, r. 17. There has been no such endorsement on the writ and, in the language of r. 17, “the plaintiff shall not be at liberty, in case of non-appearance, to
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proceed by default.” What then is the effect of the plaintiffs’ flat defiance of this rule in obtaining a default judgment against the defendant – does non-compliance with the rule nullify the judgment or is it a mere irregularity which can be rectified by bringing it under the umbrella of Order 70, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954? In Attoh-Quarshie v. Okpote [1973] 1 G.L.R. 59, Hayfron-Benjamin J. (as he then was) held at p. 64 that: “Order 9, r. 17 is a mandatory provision of law, non-compliance with which is fatal to subsequent proceedings by default.” Indeed he applied the dicta of Vaughan-Williams L.J. and Buckley L.J. in Hamp-Adams v. Hall [1911] 2 K.B. 942 at pp. 944 and 945, C.A. respectively and held as summarised in the headnote at p. 60 that:
“(1) 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 in the case of Order 9, r. 17, not as a mere irregularity which can be waived but as matter which prevents any further proceedings from being taken on the writ.”
The distinction between irregularity and nullity appears to have vanished since the decision in Re Pritchard [1963] 1 All E. R. 873, C.A. See the dicta of Archer J.A. in Attorney-General v. Levandowsky & B.A.S.E. Group [1971] 2 G.L.R. 58 at p. 66, C.A. The effect of Order 9, r. 17 when read in conjunction with Order 70, r. 1 seems to me to be that unless and until the endorsement of service on a writ is duly completed the plaintiff is not entitled to enter judgment, whether final or interlocutory, in default of appearance. Failure to comply with this requirement, however, will not nullify the judgment entered in default without the writ being thus endorsed nor any proceedings under such judgment, but such failure will be treated as an irregularity which may be waived or the court may set aside such judgment wholly or in part on such terms as it thinks just.
In Re Pritchard (supra) Upjohn L.J. considered the application of Order 70 at p. 882 thus.
“I do not think that the earlier cases or the later dicta on them prevent me from saying that in my judgment the law when properly understood is that R.S.C., Ord. 70, applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae.”
He then proceeded to lay down, from the authorities, three classes of proceedings which are nullities, viz.: (1) proceedings which ought to have been served but have never come to the notice of the defendant (but this does not include cases of substituted service or service by filing in defaultor
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cases where service has properly been dispensed. with); (2) proceedings which have never started at all owing to some fundamental defect in issuing the proceedings; and (3) proceedings which appear to be duly issued but fail to comply with statutory requirements. From the propositions above I hold that the judgment is not a nullity but that the defendant as he is in no wise estopped by conduct or waiver, is entitled to ask this court to set aside the judgment ex debito justitiae: particularly as it was signed in open defiance to the express rules of court. It is for this reason that I allow the motion and set aside the judgment and costs entered in favour of the plaintiffs with 025.00 costs to the defendant.
DECISION
Application allowed, with costs to defendant.
S.E.K.
