MICAH v. BRUCE [1971] 1 GLR 153

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 14 DECEMBER 1970

BEFORE: TAYLOR J.

CASE REFERRED TO

Kamara v. Traore, High Court, 13 November 1968, unreported; digested in (1969) C.C. 32. [p.154] of [1971] 1 GLR 153

NATURE OF PROCEEDINGS

APPEAL from a ruling of a district magistrate grade I reviewing proprio motu his previous decision which had allowed an amendment to a counterclaim. The facts are fully set out in the judgment of the court.

COUNSEL

K. Abeyie for the appellant.

Mrs. Opoku for the respondent.

JUDGMENT OF TAYLOR J.

The respondent (who was the plaintiff in the district court action) in this case sued the appellant in the district court grade I on 6 January 1970 claiming N¢653.40 being arrears of rent from January 1968 up to December 1969 and an order of the court ejecting the appellant from the premises which he had apparently rented to her. The writ of summons was served on the appellant on 16 January 1970 and the return day was 21 January 1970. The summons served was accompanied by an affidavit setting out the particulars of the demand and this clearly gave the appellant reasonably sufficient information as to the details of the respondent’s claim, in accordance with Order 5, r. 1 of the Second Schedule to the Courts Ordinance, Cap. 4 (1959 Rev.), the rules governing civil procedure in the district courts. On the next day after receiving the summons and the particulars aforesaid the appellant filed an affidavit denying the claim. It is not clear why this was done except perhaps that having received an affidavit from the respondent the appellant must have thought she was obliged to file one.

On the return day, 21 January 1970, the hearing was by the agreement of the parties adjourned to 29 January 1970. Only the appellant was represented by counsel. On the adjourned date, 29 January 1970, counsel for the appellant asked for a further adjournment to study the case and although the respondent appeared in person, he unsuccessfully resisted the application and the hearing was again adjourned to 4 February 1970. N¢4.00 costs were awarded against the appellant.

On 2 February 1970 two days before the adjourned date the appellant filed what was headed, “an amended statement of defence,” in which she purported to answer the averments contained in the respondent’s affidavit of 6 January 1970. The record does not show any statement of claim apart from the particulars of claim in the writ and there was also no statement of defence so that in this so-called amended statement of defence, the affidavit of the appellant is clearly wrongly described as a statement of defence. It does not seem to me that it was necessary for the appellant to file an affidavit or indeed a so-called statement of defence. It is not clear why the appellant, who was represented by counsel, adopted this procedure. In my view the procedure adopted by the appellant and acquiesced in by the district magistrate is rather very irregular. The hearing of suits in the district courts is summary unless the district magistrate directs to the contrary and Order 25, r. 1 of the Second Schedule shows clearly as appears hereunder that the parties, unless the court otherwise directs, do not file pleadings on their own initiative. The said Order 25, r. 1 provides:

[p.155] of [1971] 1 GLR 153

“1. Suits shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the Court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to do so, the Court may order the plaintiff to file a written statement of his claim (called the petition), and may likewise order the defendant to file a written answer or statement of his defence. The filing of a petition shall not necessarily involve, unless the Court so directs, that an answer shall also be filed. The order may be made at any stage of a suit, either before or at the hearing.”

In the so-called amended statement of claim the appellant in paragraph (12) set up a counterclaim as follows:

“(12). And by way of counter-claim the defendant repeats, paragraphs (1) to (12) of the amended statement of defence and counter-claims against the plaintiff N¢600.00 damages for breach of the terms of the verbal tenancy agreement; and for breach of the plaintiff’s implied convenant for quiet enjoyment of the demised premises to wit the removal of all the windows therein in or about October 1969.” It must be noted that the case had been adjourned to 4 February 1970 for hearing and the counterclaim was filed on 2 February 1970. The provisions of the Second Schedule dealing with counterclaims relevant to this appeal are contained in Order 18, rr. 3 and 4 thereof as follows:

“3. A defendant in an action may set-off, or set up by way of counter-claim against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court may, if in the opinion of the Court such set-off or counter-claim cannot be conveniently disposed of in the pending action or ought not to be allowed, refuse permission to the defendant to avail himself thereof.

4. (a) No defendant shall be allowed to set up any such counter-claim or set-off unless he shall have lodged with the Registrar four clear days before the return day a notice in original, and as many duplicates thereof as there are plaintiffs, containing his name and address and a concise statement of the grounds of such counter-claim or set-off, and shall have paid the same Court and service fees as would be payable if he were claiming by writ of summons: Provided that the Court may in its discretion, and on such terms as may seem just, allow the defendant to set up a counter-claim or set-off notwithstanding that such notice has not been duly lodged.

(b) On receipt of notice of counter-claim or set-off, and on due payment of the fees, the Registrar shall cause a duplicate of such notice to be served on the plaintiff.”

[p.156] of [1971] 1 GLR 153

It does not appear to me that the provisions governing the setting up of counterclaim were complied with in this case. No notice of a counterclaim was lodged four clear days before the return date, nor was leave of the court obtained to set up a counterclaim notwithstanding that notice had not been duly lodged. Indeed, the question of a counterclaim seemed to have escaped the court and on the adjourned date, counsel for the appellant informed the court that the appellant had filed an amended statement of defence to which the respondent, who was not represented, replied that he had just been served in court and that he had no objection and would like to go on and prove his case. The court then ruled as follows: “Let the amended statement of defence be a substitute for the affidavit of defence filed on 17 January 1970.” This manifest failure to comply with the rules is not fatal since under Order 4, r. 2 of the First Schedule, the district court has the statutory jurisdiction to enlarge the time and I apprehend that in the circumstances that power would have been exercised to enlarge the time if an application in that respect had been made.

Furthermore the so-called amended statement of defence can with convenience be accepted as a notice of counterclaim on terms as to the payment of fees, etc., in accordance with Order 18, rr. 3 and 4 in order that the real matters in controversy between the parties can be dealt with to enable the court to pronounce a final judgment both on the respondent’s claim and on the appellant’s counterclaim. However although the court glossed over this issue the respondent was called upon to open his case. He gave his evidence, tendered certain documents and was then cross-examined. He then called one witness and closed his case. The case was then adjourned to 11 February 1970. On that day the respondent as usual appeared in person but the appellant who had all the time been represented by counsel was represented this time by two lawyers who asked for an adjournment to 12 February 1970. The reasons for the request are not recorded but the adjournment was duly granted. On 12 February 1970, counsel for the appellant filed an amendment to the counterclaim at 11.30 a.m., that is, an amendment to the so-called amended statement of defence and in court he applied for an order to amend the counterclaim, by substituting the figure N¢1,500.00 on the ground that the original figure of N¢600.00 was inserted in error. The respondent unsuccessfully opposed the application and the court granted it on the ground that under Order 26 of the said Second Schedule it had power to grant amendments for the purpose of determining the real question involved. After the amendment had been granted counsel then made a further application that in view of the amount involved, namely, N¢1,500.00, the court had no jurisdiction and the case should therefore be transferred to the circuit court. The court then adjourned the case to 16 February 1970 for a ruling on the question of jurisdiction raised by counsel.

I have given all these facts of the case so as to provide the necessary background against which the ruling of the magistrate can be viewed, because it was the ruling that gave rise to this interlocutory appeal before [p.157] of [1971] 1 GLR 153 this court. On the adjourned date the magistrate expressed his justifiable indignation at the conduct of counsel for the appellant as unfortunate but in the circumstances perhaps understandable language. This is what he said:

“It is surprising that counsel for the defendant should make an application for the transfer of this case to the circuit court in view of the granting of the amendment on the amount of the counter-claim which he himself sought. It is now clear that the amended counter-claim filed by him is a crooked device intended to have the suit transferred to a court of his own choice.

It is an etiquette at the Bar that a barrister should be honest with the court and should not do anything to deceive the court. It is strange that at the stage when he was to open the defence, counsel should file an amendment in the counter-claim to deceive the court that he made an error in the amount, and when the amendment was granted, to use it as a springboard to apply for the transfer of the suit because of lack of jurisdiction.

When this case was called on 11 February counsel asked for adjournment to the following day, 12 February. The court granted the adjournment thinking that it was a genuine request. When the case was called on 12 February at about 9 a.m., counsel asked that the case should be stood down until 11 a.m. as he was going to the High Court. At 11 a.m. when the case was called counsel was not present. At 11.30 a.m. as shown on the amended counter-claim on the docket counsel filed the amendment. The court granted it despite opposition from the plaintiff. Immediately it was granted counsel made the application for the transfer of the suit to the circuit court. The behaviour and attitude of counsel clearly show that the application for amendment of the counter-claim was not made in good faith, and that the amount of N¢600.00 stated in the original counter-claim was not an error after all. Why should counsel apply for an amendment when he knew that the court had no jurisdiction to try a suit involving that amount? I must say, however, that counsel miscalculated his chances of success in making such a tricky move.”

The magistrate then conceded that he had no jurisdiction to hear the counterclaim. He also held, rightly in my opinion, quoting the case of Kamara v. Traore, High Court, 13 November 1968, unreported; digested in (1969) C. C. 32, a judgment of Annan J. in the High Court, Kumasi (to be discussed presently) that a counterclaim is not an original suit and if it exceeds the jurisdiction it can be struck out. Yet curiously he did not do what that decision obviously indicates should be done namely to strike out the counterclaim. In fact under Order 18, r. 3, of the Second Schedule the court is enjoined, if in its opinion a counterclaim cannot be conveniently disposed of in the action or ought not to be allowed, to refuse permission to the defendant to avail himself of it and I apprehend that he can so refuse the permission by striking out the counterclaim.

Although the magistrate held that he had no jurisdiction to hear the counterclaim he nevertheless proceeded in his ruling to review his order

[p.158] of [1971] 1 GLR 153 allowing the amendment and ended up by restoring the original counterclaim. This is what he said: “Since I now find that the application was not made in good faith and that counsel deceived the court in making the application, I can review the decision already made in granting the amendment; for that constitutes fresh evidence not within knowledge at the time the decision was made. Also as I have now realised that I have no jurisdiction to try the counter-claim as amended involving an amount of N¢1,500.00 I can review the decision as this constitutes an error in my decision.

I therefore, hereby review my earlier decision in granting the amendment. The application by counsel for the amendment of the counter-claim is dismissed. Let the original counter-claim N¢600.00 as contained in the amended statement of claim stand.”

It seems to me that this case illustrates the danger of allowing one’s self to be carried away by anger however justifiable it may be. When counsel makes a submission in a case, it seems to me essential for the purpose of the proper administration of justice that the submission be examined on its legal merits without any enquiry no matter how tempting it may be into the motives for the submission. This is so because the motive whether worthy or not is irrelevant to the issue before the court. If this anger, justifiable in my view, had not clouded his judgment, the magistrate, aware as he is of the Kamara case (supra) would have merely struck out the counterclaim after granting the amendment and he would have proceeded to hear the defence on the original suit unhampered by any so-called counterclaim. In the Kamara case (supra), referred to by the district magistrate, the applicant Kamara moved the court for an order staying execution of a judgment-debt and costs ordered by the district court grade I against him in a suit between him and the respondent pending the hearing and determination of an appeal of the said applicant to the High Court. The applicant had submitted to judgment in a claim for N¢1,000.00 on the undefended list. He had filed a notice of intention to defend with an affidavit admitting the claim but counterclaiming for N¢2,000.00. He submitted at the trial before the district court that execution be stayed pending the hearing and determination of his counterclaim and asked for the counterclaim to be transferred to the appropriate court by virtue of the Courts Decree, 1966 (N.L.C.D. 84), s. 52 (2) as amended by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), since the district court had no jurisdiction to deal with the counterclaim. The district court refused the application to stay and struck out his counterclaim. He appealed from this decision and applied to the High Court in the meantime for a stay of execution pending the hearing and determination of his appeal. Annan J. refused the application for stay on grounds which he stated in his ruling and observed, in my view rightly, that the district court was right to strike out the counterclaim. He further expressed the view that the counterclaim could not be transferred by virtue of N.L.C.D. 277 as

[p.159] of [1971] 1 GLR 153 the enactment was clearly inapplicable. This is obvious from a reading of N.L.C.D. 277. In this case therefore the district magistrate could have struck out the counterclaim not only because of the correct guide line offered by the ruling of Annan J. in the Kamara case (supra), obiter though it may be, but also because Order 18, r. 3 gives him power to disallow the counterclaim since it is above his jurisdiction and the proper way to disallow it is to strike it out. As it is, frantic and exasperated, his vision must have been blurred, and goaded by passion, he had to resort to Order 42, r. 1 of the Second Schedule to review his decision, an unnecessary exercise in the circumstances. Now the said Order 42, r. 1 reads: “Any Judge, Magistrate, or other judicial officer, may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, or a reference shall have been made upon a special case, and such appeal or reference is not withdrawn), and upon such review it shall be lawful for him to open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary, or confirm his previous judgment or decision, or to order a non-suit.” Under this order I do not think it is competent for a magistrate to review his decision in the circumstances of this case without giving the parties an opportunity of being heard. The audi alteram partem principle militates against such a course. In so far as the magistrate purported to so review without giving the parties the opportunity of being heard I think he was in error and his decision cannot be allowed to stand. It must necessarily have taken counsel by surprise as the magistrate in effect was asking him to proceed on a counterclaim of N¢600.00 when from the nature of the application he had made earlier it was clear his client had withdrawn whatever instructions she had given him on the N¢600.00.

The magistrate refused the appellant’s application for an adjournment and asked her to proceed with the defence and counterclaim. Although counsel’s conduct has not been beyond reproach I do not think it is fair to the appellant that her counsel’s failings should be visited on her. I think an adjournment in the circumstances was the only way that substantial justice would have been seen to have been done. At least counsel ought to have been given the adjournment to seek further instructions regarding the counterclaim. Before this court counsel appealed on two grounds as follows:

“(a) The learned magistrate erred in law in saying that an application for amendment granted by him was given in error when there was no motion for review.

(b) The learned magistrate erred in law in allowing this case to proceed despite the amendment which made it clear that the court had no jurisdiction.”

Having regard to the view that I take of the legal effect of Order 42, r. 1 of the Second Schedule, I think that ground (a) succeeds. Ground (b) was

[p.160] of [1971] 1 GLR 153 at first abandoned but after counsel for the respondent had replied to counsel’s argument on ground (a) counsel sought leave to have ground (b) restored so that he could argue it. This was strenuously resisted by counsel for the respondent on the ground that it was improper and irregular. I overruled the objection and I did not call upon the appellant to reply to the objection. This was my ruling:

“I conceive of my duty as relentlessly to allow parties who appear before me to have full opportunity to canvass all points which will contribute to a fair decision of the matter in controversy between them. I will therefore spurn any arguments directed at silencing parties who appear before this court. I think the whole spirit of the rules of court is that subject to costs the courts must endeavour to accommodate parties for the overriding purpose of determining in the existing suit, the real question or questions in controversy between the parties. In this case counsel for the appellant abandoned ground (b) of the grounds and after counsel for the respondent had completed her reply he asked for the leave of the court so that this ground could be restored and he be permitted to argue it. Although I must confess that I find the approach of counsel in relation to this ground rather dilatory and he would seem to be impaled on the horns of a dilemma as to whether to argue or not to argue it; since he has now finally decided to argue it, I do not think it will be a proper exercise of discretion if I shut out the argument when there is the probability that it may help the court to come to a just decision. The defendant-respondent will not be prevented from replying and if, which is doubtful, she considers that she is being taken by surprise I can grant her an adjournment to put matters right. In the result I will not sustain the objection but will grant leave to the appellant to argue the said ground. Leave granted accordingly.”

I think that since the counterclaim for N¢600.00 was abandoned the magistrate was in error when he restored it. When a claimant alleges that he has misconceived a particular claim and does not want to go on with that claim, it is difficult to see upon what legal basis he can be forced, so to speak, to pursue such a claim. This it seems to me is the effect of the review restoring the claim. If the original application to amend had been refused I presume counsel would have taken steps to advise himself as to what to do in the circumstances. To proceed as was done here with a counterclaim which the defendant had clearly abandoned cannot be right. In my view therefore ground (b) succeeds only in the sense that the magistrate ought not to have proceeded with the counterclaim. He was perfectly entitled to proceed to hear evidence on the defence for the claim of the plaintiff.

The question now is what order I ought to make in the circumstances. Counsel for the appellant submits that I should set aside the ruling of the magistrate; this is all he has asked for. I think, having regard to the view I have expressed, the ruling of the district court ought to be set aside and I do set it aside, but a consequential order which must necessarily

[p.161] of [1971] 1 GLR 153 follow is that since the counterclaim exceeds the courts jurisdiction it ought not to be allowed and the defendant ought not to be permitted to avail himself of it in view of Order 18, r. 3 of the said Second Schedule. I will therefore order that the counterclaim be struck out. The appeal is allowed, the ruling of the magistrate is set aside and the counterclaim is struck out. There will be no order as to costs.

DECISION

Appeal allowed.

Consequential order that the counterclaim be struck out.

T.G.K.