HOOPER AND OTHERS vs. OILS & FATS LTD AND OTHERS [1997-98] 1 GLR 810

CASE REFERRED TO

Republic v Acheampong alias Nana Nyan IV; Ex parte Nana Afful Effrim IV [1973] 1 GLR 160.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the defendants to a notice to admit document filed by the plaintiffs and served on them, on the ground that it had been filed out of time in breach of the mandatory provision of Order 32, r 2(1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) and therefore void. The facts are sufficiently stated in the ruling.

COUNSEL

Dawson for the plaintiffs.

C B K Zwennes for the defendants.

JUDGMENT OF TWENEBOA-KODUA J.

On 24 July 1996 the solicitor for the plaintiffs filed a notice to admit documents and it was duly served on the solicitors for the first, second, fourth and fifth defendants. There is no evidence that the third defendant was or his solicitors were served with the notice.

On 30 July 1996, the solicitors for the served defendants gave a counter notice challenging or objecting to the notice to admit the specified document, to wit, assets declaration form dated 16 February 1988. The solicitors assigned reasons for their objection as follows:

“(1) that assets declaration forms are strict confidential declarations made under statute for specific purposes of the statute;

(2) that the said assets declarations forms mentioned in the plaintiffs’ notice are not coming from the proper custody and therefore not admissible evidence in a civil action inter partes;

(3) that the government is not a party to these proceedings and therefore the contents of the said assets declaration forms are irrelevant and not in issue between the parties herein;

(4) that under order 32, r 2(1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A), the plaintiffs’ notice to admit document is incompetent, out of time

[p.812] of [1997-98] 1 GLR 810 and misconceived since the trial began on 30 April 1996 or thereabouts.”

Order 32, r 2 of LN, 140A under which the motion was issued provides as follows:

“2. (1) Either party may by notice in writing at any time not later than nine days before the day for which the notice of trial has been given, or, if no notice of trial is required, not later than nine days after the action has been set down for trial, call upon any other party to admit any document, saving all just exceptions, and if the other party desires to challenge the authenticity of the document, he shall within six days after service of such notice, give notice that he does not admit the document and requires it to be proved at the trial.

(2) If such other party refuses or neglects to give notice of non-admission within the time prescribed in the last preceding paragraph, he shall be deemed to have admitted the document, unless the Court or a Judge otherwise orders.

(3) Where a party gives notice of non-admission within the time prescribed by the first paragraph of this Rule and the document is proved at the trial the costs of proving the document shall be paid by the party who has challenged the document whatever the result of the cause or matter may be, unless at the trial or hearing the Court or a Judge shall certify that there were reasonable grounds for not admitting the authenticity of the document.

(4) Where a party proved a document without having given notice to admit under paragraph (1) of this Rule no costs of proving the document shall be allowed on taxation, except where the omission to give notice to admit is, in the opinion of the taxing officer a saving expense.”

It is clear from the counter-notice of the defendants that they did not challenge the authenticity of the document in question. They rather took objection on two clear grounds, namely that the document the plaintiffs were seeking to make the defendants admit was (or is) special and had to do with the Government of Ghana. It

[p.813] of [1997-98] 1 GLR 810 was contrary to public policy to produce it in evidence in an action inter partes and secondly, that the notice to admit was delivered in breach of the relevant rule.

Counsel for the defendants argued that the notice to be given “not later than nine days” was a mandatory order allowing no alternative to its strict observance. Counsel said Order 70, r I of LN 140A did not apply because of the mandatory nature of the wording of Order 32, r 1 of LN 140A: the privilege given under the rule could be exercised within a time-frame—”not later than 9 days.” Counsel explained that the purpose of the rule was not to save costs as suggested but it was to give a prior notice so as to avoid springing surprise upon the party served with the notice. Counsel also explained that the purpose of the objection was to prevent, in this particular case, the impropriety of the attempt to circumvent evidence which should be cross-examined properly.

In reply, counsel for the plaintiffs conceded with candour the fact that the notice was filed after the trial had commenced but, in his view, that did not render the notice bad in law. He brought the filing of the notice to admit a document within the saving provision of Order 70, r 1 of LN 140A for curing the admitted defect of filing the notice later than nine days after the action had been set down for trial and, indeed, after the trial had already commenced. In counsel’s view, the notice was not null and void by reason of it having been filed out of the time prescribed. The court could exercise its discretion in the matter to admit the document so as to prevent costly litigation, for an admission made under Order 32, r 2(1) of LN 140A would preclude or eliminate the proof by evidence at the expense of the party giving the notice. Counsel took the view that the objection by the defendants was “purely procedural”, to wit, that the notice was not brought within time: in his judgment, the notice, in essence, admitted the document. In that sense, it was the duty of the court, counsel argued, to exercise its discretion to act so as to ensure that justice was done in the case before it. Counsel was categorical that the notice was not void but merely voidable and, therefore, he urged the court to act in such a way as to make justice achievable and to avoid the expense that the subpoenaing of a state organisation to give evidence would entail.

[p.814] of [1997-98] 1 GLR 810

First, I agree with the defendants’ counsel that it is a mandatory requirement under rule 2(1) of Order 32 of LN 140A to file the notice “not later than nine days” after the action has been set down for trial. The Annual Practice (White Book)(1962), Vol 1 at p 734 (a reference from p 733) has the following observation on the phrase “Not later than nine days”: “The notice must be given on or before the end of the ninth day after the day of setting down, excluding that day.” (The emphasis is mine.) So that in keeping with the recognised canons of interpretation, the expression “Any party may, not later than nine days, call any other party to admit” in the rule means the party desiring to give the notice to admit must do so within the period specified: it is mandatory within the period. The court is here under obligation to see that the party complies with the rule. Its discretion is therefore circumscribed in this matter and it can hardly invoke the saving provision or grace of Order 70, r 1 of LN 140A. In that sense Order 70, r 1 of LN 140A does not apply.

A distinction must be made between a non-compliance and wrong compliance with the rules. The former is a half-hearted application of any particular rule of procedure or practice; not complying fully with any particular rule. The latter is a breach of the rule and the defect in procedure is fundamental. The former will be an irregularity that is voidable; the latter will render the procedure null and void.

Whilst I agree that the whole purpose of notice to admit documents is to save or mitigate the costs of litigation, the limitation of the filing and delivery of the notice within nine days after the setting down of the action for trial, is to give the other party ample time and opportunity to prepare before the onset of the trial and avoid the springing of surprise on him or her. In the instant case where the plaintiffs’ notice to admit a document was brought or filed out of the time in which they were under obligation to do so, they surely proceeded in flagrant breach of a mandatory rule. The effect must be prejudicial to the defendants and the defect in the procedure is certainly so fundamental as to make it incurable or irremediable under the saving provision of Order 70, r 1 of LN 140A: see the case of Republic v Acheampong alias Nana Ayah IV; Ex parte: Nana Afful Effrim [1973] I GLR 160.

[p.815] of [1997-98] 1 GLR 810

I shall leave the other ground of the objection for resolution at the appropriate time when I can get hold of the statute or the enactment giving the special status to the assets declaration form and, more importantly, when the question of authenticity of the said document will require resolution or determination.

Meanwhile the objection to the notice to admit the document in issue is sustained on the ground that the notice is void and of no effect whatsoever. It is accordingly set aside. The defendants are adjudged to recover costs assessed at ¢60,000.

DECISION

Objection upheld.

Endnotes

1 (Popup – Footnote) [sic] same in document