SUPREME COURT, ACCRA
DATE: 12TH NOVEMBER, 1962
BEFORE: VAN LARE, BLAY AND AKUFO-ADDO, JJ.S.C.
CASES REFERRED TO
(1) McLardy v. Slateum (1890) 24 Q.B.D. 504
(2) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214, W.A.C.A.
(3) Smurthwaite v. Hannay [1894] A.C. 494, H.L.
NATURE OF PROCEEDINGS
APPEAL from a ruling on an application by the defendants-appellants praying for an order to set aside the judgment of Mr. Commissioner Christian given on the bearing of a registrar’s summons under Order 62. The trial judge had refused the application. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
I. Amoo-Lamptey for the defendants-appellants.
‘No appearance by or on behalf of the plaintiff-respondent.
JUDGMENT OF AKUFO-ADDO J.S.C.
Akufo-Addo J.S.C. delivered the judgment of the court. This appeal raises a point of practice and procedure of some importance, and we think it necessary therefore to set out the full history of the proceedings that have culminated in this appeal.
The plaintiff-respondent by his solicitor issued out of the Divisional Court at Kumasi a specially endorsed writ by which he claimed the sum of £G550 6s. 8d., particulars of which appeared in the statement of claim
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annexed to the writ. The writ was sealed on the 11th March, 1959, and was served on the defendants-appellants, a company doing business in Accra, on the 16th March, 1959. The appellants by their solicitor entered appearance to the writ on the 18th March, 1959, although the memorandum of appearance was not filed in court until the 24th March, 1959, and was served on the respondent’s solicitor on the 14th, April, 1959. The appellants’ solicitor filed a defence dated the 6th April, 1959, and this was delivered to the respondent’s solicitor on the 16th April, 1959.
Nothing further was done, and on the 25th April, 1960, the registrar of the Divisional Court, Kumasi, issued out a summons in pursuance of the provisions of Order 62 of the Civil Procedure Rules directed to the parties, and calling upon them in terms of Order 62, “to attend the Judge in Chambers on Monday the 16th May, 1960, to show cause why the suit should not be struck out for want of prosecution.” The summons was duly served on both the respondent and the appellants.
On the 16th May, 1960, the respondent’s solicitor appeared to the summons, but there is no reference to the appellants in the notes made by Mr. Commissioner Gwira before whom the matter came, and it is safe to assume that the appellants did not appear, and they were not represented either. The matter was, however, adjourned to the 30th May, 1960. On that day the matter came before Mr. Commissioner Christian, as he then was, and the respondent’s counsel appeared, but neither the appellants nor their counsel appeared. The respondent’s counsel then made an application to the court in the following terms: “I am asking for judgment to be entered for the plaintiff with costs of 50 guineas.” The court granted the application and recorded the following, “ Judgment entered for the plaintiff for the sum claimed with inclusive costs of 50 guineas.”
On the 15th August, 1960, a copy of judgment after trial issued in pursuance of Order 14 of the Civil Procedure Rules was served on the appellants in Accra which stated on its face, “Dated and entered the 12th October, 1960” and proceeded to state as follows, “This action having on the 12th October, 1960, been tried before Mr. Justice Crabbe in the Divisional Court of Kumasi, Ashanti, and the said Mr. Justice Crabbe on the 30th May, 1960, having ordered that judgment be entered for plaintiff-judgment-creditor herein for £G550 6s. 8d. and £G52 10s.— costs.
It is this day adjudged that the plaintiff-judgment-creditor recovers from the defendants-judgment-debtors the said sum of ; £G550 6s. 8d. and £G52 10s.— costs.”
It was signed by Mr. Amankwatia, the respondent’s solicitor who on the 30th May, 1960, appeared to the registrar’s summons before Mr. Commissioner Christian and applied for and obtained judgment against the appellants. It is therefore difficult to understand why the date of entry of judgment was given as “12th October, 1960,” why the reference to a trial alleged to have taken place before Crabbe, J. which never took place, and why also the reference to an order by Crabbe, J. on the 30th May, 1960, for the entry of judgment when the respondent’s solicitor could not help knowing that the only judgment on record in favour of his client, the respondent, was the judgment he applied for and obtained before Mr. Commissioner Christian on the hearing of the registrar’s summons on the 30th May, 1960.
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The respondent did not appear at the hearing of the appeal nor was he represented. Mr. Amankwatia who had acted for the respondent throughout in the court below happened to be in court during the hearing of the appeal, and we called upon him to explain how the judgment after trial came to be framed in the terms described above. His explanation was most unsatisfactory, and, in our view, amounted to no more than that he was just careless and inattentive to the correctness or otherwise of the statements contained in a document to which he had subscribed his signature. We cannot too strongly deprecate the making of such gross misstatements by counsel in papers filed in court, and counsel’s conduct in this respect becomes all the more reprehensible in the particular circumstances of this case, because these false statements gave a very wrong impression of the regularity of the
procedure now called in question.
The appellants, upon service on them of the copy of the judgment after trial, made enquiries at the Registry of the High Court, Kumasi, and found that far from there having been any trial of the suit by Crabbe, J. as was falsely alleged in the judgment after trial, the judgment of the 30th May, 1960, referred to was pronounced by Mr. Commissioner Christian on the hearing of the registrar’s summons.
The appellants promptly filed an application by motion on notice to the respondent praying for an order for the stay of execution of the 30th May 1960, and for a further order setting aside the said Judgment. The trial judge’s notes of the hearing of this application shows that one of the points advanced by the appellants’ counsel in his submission was that Mr Commissioner Christian had no power on the hearing of the registrar’s summons to enter judgment for the respondent.
The trial judge refused the application and in so doing expressed himself as follows: “There is nothing on the record to show that the court at any time granted the defendant leave to defend.
The judgment in this case was not given on the 16th May, 1960, when the plaintiff appeared in answer to the registrar’s summons. It was in fact given two weeks later, i.e. on the 30th May, 1960, when the record shows defendant was again served and did not see fit to attend. In these circumstances the court was in my opinion plainly right in entering judgment for the plaintiff. Had the defendant been diligent he would have taken steps to apprise himself of this judgment long before now. He has done nothing for five months and is in my view guilty of culpable delay.
I decline therefore to exercise my discretion in favour of the defendant and refuse this application with ten guineas costs to plaintiff.”
With regard to the reference to the absence of the grant to the appellants of leave to defend, it is enough to point out that leave to defend a claim brought on a specially endorsed writ is granted only when the plaintiff in the exercise of his right under Order 14 of the Civil Procedure Rules applies to the court by summons for summary judgment, and the defendant successfully resists the application by showing grounds why he should be let in to defend, and not otherwise. The grant of leave to defend, where the plaintiff as in this case has not applied for summary judgment, is not a condition precedent to the delivery of defence. The appellants in this case delivered a defence, and this, in the absence of an application by the plaintiff-respondent for summary judgment, they were entitled to do under the provisions of Order 19, rule 2 and Order 21, rule 6 of the rules. It must, however, be stated that the delivery of a defence did not preclude the respondent, if be so wished, from still pursuing his right
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under Order 14 to apply for summary judgment. See the case of McLardy v. Slateum1(1) where an application for judgment under Order 14 was successfully made one month after delivery of defence.
As already stated no further step in the proceedings was taken after the delivery of the appellants’ defence on the 16th April, 1959. Up to that stage the appellants had done all that was required of them by the rules of procedure, and it was left to the respondent to take the further steps required by the rules to prosecute his claim against the appellants.
Two courses were then open to the respondent. He could ignore the appellants’ defence and proceed in the exercise of his right under Order 14 to apply by summons for judgment, and thus throw upon the appellants the burden of making out a prima facie case for defence to entitle them to leave to defend; and when such leave was granted, the future course of the proceedings would then follow the provisions of Order 21, rule 7, Order 27, rule 14 and Order 30, rule 1(a). Alternatively, the respondent might waive his right under Order 14 and proceed on the basis of the appellants’ defence, and then the future course of the proceedings would follow the provisions of Order 23, rule 1, Order 27, rule 14 and Order 30, rule 1(a).
At the time of the issue and the hearing of the registrar’s summons, therefore, the respondent was wholly in default. Although the appellants could, at any time after fourteen days of delivery of their defence, have applied to have the claim dismissed for want of prosecution under Order 27, rule 14 and Order 30, rule 8, they were not obliged to do so if they did not consider themselves in any way prejudiced or even inconvenienced by the respondent’s apparent lack of interest in the prosecution of his claim.
The respondent’s claim was therefore ripe for striking out on the registrar’s summons unless he was able to show cause why it should not be, truck out. The learned commissioner’s notes of the bearing of the summons do not indicate that the respondent showed any cause, or even that he was called upon to show cause at all. Rather, the defaulting plaintiff was permitted to take an unlawful advantage of his own unmitigated sins of omission and of the absence of the guiltless defendants to apply for and obtain judgment.
The learned judge of the court below justifies this procedure on the ground that the appellants failed to attend the hearing of the registrar’s summons on the two days on which the summons came before the court. We are unable to endorse this reasoning. Was it really obligatory for the appellants to attend the hearing of the summons? They (i.e. the appellants) could not be expected to show cause why the claim should not be struck out, even though they might well have urged grounds for striking out the claim if they had attended the hearing. The appellants’ conduct in not attending the hearing of the summons can only properly be appraised with reference to the provisions of Order 62 under which the registrar’s summons was issued. One of two courses was open to the learned commissioner in the hearing of the summons: he could either strike out the claim, if no good cause was shown by the respondent, or, if good cause was shown, order the action to proceed. If the former course was adopted the appellants would be none the worse for it; indeed they would be better off, their non-attendance notwithstanding. If the latter course was adopted, an order that the action should proceed, far from implying
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power in the commissioner to enter judgment summarily for the respondent, could only mean in the circumstances that the respondent would be given an opportunity to make good his default which he could do by pursuing one or other of the two alternative courses described above to ensure the progress of his action to the point of trial, and in that event all processes and documents issued and filed by the respondent (whether such be a reply to the appellants’ defence, or a summons for judgment under Order 14, or a summons for directions under Order 30) would perforce be served on the appellants who would then realise that, after all, the respondent’s claim was not struck out on the registrar’s summons. In the final analysis, therefore, the appellants would not be in anyway prejudiced by their non-attendance at the hearing of the summons, and we are unable to appreciate how arid why, in the events that occurred, they should be penalised. The appellants therefore had no need to undertake the pilgrimage to the registrar’s office in search of a possible judgment against them, the failure to do which was described by the learned judge as “culpable delay.” The appellants could not be accused of any form of delay, for upon the first intimation to them, by the service on them of the judgment after trial, of the irregular procedure adopted by the learned commissioner they promptly applied to the court to have that judgment set aside.
In the case of Amoabimaa v. Badu2(2) a case not dissimilar in principle to the instant one, the West African Court of Appeal (per Coussey, P.), following the decision in the English case of Smurthwaite v. Hannay3(3) stated the law as follows: “A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and may be set aside: Smurthwaite v. Hannay. It seems to us the order complained of is a nullity and that the respondents who are affected by it are entitled ex debito justitiae to have it set aside.”
We respectfully accept this statement of the law as correct, and we adopt it. Substitute “appellants” for “respondents” in that statement and the appellants’ case is fully covered. We have said enough to indicate that in our considered view the learned judge of the court below was wrong in refusing to set aside the judgment of Mr. Commissioner Christian complained of, because the learned commissioner, very far from being “plainly right in entering judgment for the plaintiff” acted in a manner unwarranted, or incapable of being sanctioned by the rules of procedure, namely the provisions of order 62, and the judgment is therefore wholly void. And if it can somehow be said that the appellants were guilty of delay, the short answer to that is that lapse of time can never render valid
that which is void ab initio.
DECISION
We therefore allow the appeal, set aside the ruling of the court below including the order for costs, and, in pursuance of the powers vested in this court by rules 31 and 32 of the Supreme Court Rules, 1962, set aside the judgment of Mr. Commissioner Christian given on the 30th May, 1960, including the order for costs. The result of this order is that the registrar’s summons is still pending in the court below.
