HIGH COURT, SUNYANI
Date: 27 JANUARY 1975
MENSA BOISON J
CASES REFERRED TO
(1) Tromu II v. Gyeabour II, Court of Appeal, Cyclostyled Judgments (Civil), January-December 1958, p. 47, unreported.
(2) Gyambiby v. Gyambiby [1961] G.L.R. 88, S.C.
(3) Watalah v. Ghana Primewood Products Ltd. [1973] 2 G.L.R. 126.
(4) Agyeman v. Ghana Railways and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60.
(5) Collins v. Paddington Vestry (1880) 5 Q.B.D. 368; 49 L.J.Q.B. 264; 42 L.T. 573; 28 W.R. 588, C.A.
(6) Ojikutu v. Odeh (1954) 14 W.A.C.A. 640.
(7) Schafer v. Blyth [1920] 3 K.B. 140; 89 L.J.K.B. 671; 123 L.T. 752.
NATURE OF PROCEEDINGS
APPLICATION to set aside a judgment under Order 36, r. 18 of L.N. 140A. The facts are sufficiently set out in the ruling.
COUNSEL
A.A. Owusu for the plaintiff-respondent.
A.A. Munufie (for Totoe) for the defendant-applicant.
JUDGMENT OF MENSA BOISON J.
This is an application at the instance of the defendant for an order to set aside a judgment of the High Court herein dated 4 September 1974.
The action was for a declaration of title to land, and was originally instituted at the Tano Local Court, Bechem, some time in 1960. On 31 May 1963, by an order of the High Court, it was transferred to the Sunyani High Court for adjudication. The record on the docket shows its chequered career before several judges since that date. It is enough only to recall that on 3 February 1970 it was part-heard before Sampson Baidoo J., when he
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had to leave the station on transfer. It was left for Anterkyi J. to start hearing it de novo on 7 June 1972. For several reasons for which no blame could be attached to the court, the hearing before Anterkyi J.
suffered the same protracted delays, which at long last culminated in the judgment of 4 September 1974.
The facts giving birth to the application may be briefly stated: On 29 July 1974, the case being still part-heard, Anterkyi J. after dealing with an application for substitution of the defendant, adjourned the further hearing to 19 August 1974. When, however, the case came on for hearing on 19 August 1974, counsel, holding brief for Mr. Totoe for the defendant, asked for an adjournment; one ground for the application being that Mr. Totoe was ill in bed, and further that a copy of the proceedings of a previous date had just been received. Anterkyi J. it would appear was reluctantly obliged to accede to the adjournment, but only to the next day, i.e. 20 August 1974, on the understanding that some other counsel could hold brief for Mr. Totoe if he himself was still unable to appear.
On 20 August 1974, the defendant appeared in person, having brought a letter dated 19 August 1974, explaining the inability of his counsel to appear or to get some other counsel to conduct the case and praying for a further adjournment. The court would not oblige and called upon the defendant to cross-examine the witness for the plaintiff. The defendant declined to do so on the ground that he would want the cross-examination to be done by counsel at the next adjourned date.
It is significant at this stage to note that Anterkyi J. was at the time scheduled to take over at Ho, and would normally not be sitting at Sunyani from the start of the 1974-75 legal year. Further as far back as 8 June 1972, the defendant had taken objection to Anterkyi J. hearing the action. The ground had been examined and found unsubstantiated. So the trial was continued on that day with Mr. Totoe cross-examining the plaintiff. The inference might well be drawn that unless the case proceeded at the court’s pace, the trial thus far would in all probability have been abortive. Upon the defendant’s request for adjournment on 20 August 1974, the court firmly refused, and when the defendant would not undertake to cross-examine the plaintiff s witness, Anterkyi J. took the trial as concluded, the plaintiff having completed with his witnesses. The outcome was the judgment delivered on 4 September 1974, which is the subject-matter of the present application.
Apart from one minor matter it seems to me two principal issues arise for determination. First whether on the facts, an application lies under Order 36, r. 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A); and secondly, whether this court can properly determine the soundness or not of the exercise of the trial judge’s discretion.
To deal first with a minor point of objection, namely that as no certificate pursuant to rule 18 of the Supreme Court Rules, 1962 (L.I. 218), has been filed in this court the notice of appeal which the defendant had indicated as discontinued, was in law still pending at the Court of Appeal, and consequently the application here was out of court. I find no merit in this contention since L.I. 218, r. 18, applies only to steps taken at the
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Court of Appeal. That stage could only have been reached when the record of proceedings had been settled at the court below and the appeal papers transmitted above. There is no record of the record of proceedings having been settled. Instead there is on the case docket a notice of discontinuance filed in this court, that being the right court for filing, a copy of which was served on the plaintiff. That in my view constitutes discontinuance of the notice of appeal sufficient to enable the present application to lie.
I now come to the first of the two principal matters mentioned earlier on. Order 36, r. 18 of L.N. 140A under which the applicant moves, is in these terms:
“Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or Judge upon such terms as may seem fit, upon an application made within fourteen days after the trial.”
As already narrated, on the facts, the defendant litigant was himself in court on the day of hearing. So, the sum of the submission by learned counsel for the defendant-applicant amounts to this, that “a party” within the rule does not refer to a litigant simpliciter, but that it includes his counsel, where the party appears by a professional representative. I put the matter in this way because at this stage the question whether or not there was good reason for the absence of the other party or his counsel is beside the point; as that falls to be decided on the issue of the merits of the trial judge’s discretion.
The case of Tromu II v. Gyeabour II, Court of Appeal, Cyclostyled Judgments (Civil), January-December 1958, p. 47, unreported, would seem impliedly to support the meaning as advocated above. That was a case where the defendant was present on the date of hearing, but senior counsel for the defence being absent, junior counsel prayed for an adjournment as he had no instructions to conduct the defence. The trial court refused the application and heard the case, the defence refraining from taking further part. The defendant having failed to get the resulting judgment set aside for fresh hearing at the court below, the Court of Appeal, held on appeal that the learned trial judge erred in the exercise of his discretion when he disregarded the reasons given for counsel’s non-attendance. The Court of Appeal in the event set aside the judgment of the High Court and remitted the case back to be relisted for trial.
I concede there is no mention of the rule under which the application was brought at the High Court but I am unable to conceive of any other but Order 36, r. 18. In the event I am of the opinion the Tromu II case (supra) on which learned counsel for the defendant-applicant relies supports his coming under the rule.
There is, however, the decision in Gyambiby v. Gyambiby [1961] G.L.R. 88, S.C. In that case the appellant H.Y.G. appealed from the decision of the Akan Native Court B to the Buem Krachi Native Appeal Court. The respondent N.K.G. was in court on 15 July 1957, when the native appeal court adjourned the hearing at the respondent’s request to
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22 July 1957, although the respondent had insisted on having the case adjourned to 1 August 1957. The appeal was heard on 22 July 1957, and the court found in favour of the appellant, H.Y.G.; the respondent having absented himself, because the appeal was not listed for 1 August 1957.
On 3 August the respondent applied to re-list the appeal for fresh hearing, under the Native Courts (Colony) Ordinance, Cap. 98 (1951 Rev.), s.51 which provided that:
“No appeal shall lie from the decision of any Native Court in any suit or matter where the defendant or respondent has not appeared, but in every such case the Native Court shall satisfy itself that a copy of the decision has been served on the defendant, or respondent, and any defendant or respondent aggrieved by any such decision may, not later than one month after the date of the service on him of the copy of the decision, apply to the Native Court which gave or made the decision to reverse, vary or discharge it, and where the Court refuses so to reverse, vary or discharge the decision upon such application, an appeal shall lie in like manner as an appeal from any other decision of a Native Court.”
(The emphasis is mine.) The appeal was as a result relisted, but on 20 January 1959, the Buem Krachi Native Appeal Court again found in favour of the appellant, H.Y.G. The respondent, N.K.G. appealed to the Land Court, Accra, which, on 13 May 1959, reversed the decision of the native appeal court and confirmed the judgment of the native court.
The appellant, H.Y.G., appealed to the Supreme Court on the principal ground that section 51 of the Native Courts (Colony) Ordinance was not applicable to the facts and circumstances of the case. The Supreme Court upheld the ground, holding that the judgment of 22 July was not ex parte, and consequently the re-listment was null and void and so were all the proceedings after 22 July 1957. As a result the judgment of the Land Court was set aside and the judgment of the Buem Native Appeal Court restored.
In their judgment this is what the Supreme Court said at p. 90:
“It is clear from what happened on the 15th July, 1957, and on the 22nd July, 1957, that it cannot be said that the judgment of the 22nd July, 1957, was an ex parte judgment. The defendant on the 15th July, 1957, did appear in court and was present when the case was adjourned at his request, to the 22nd July, 1957. His defiant attitude towards the court by refusing to attend court if the case was not adjourned to the 1st August, 1957, showed that he was aware that the appeal would be heard on the 22nd July, 1957, but he chose to be absent.”
(The emphasis is mine.)
The ratio decidendi would seem to be that a judgment is not ex parte where the party absent was aware that the case would be heard on a named date, but had not appeared at the hearing. In Wharton’s Law Lexicon (14th ed.) ex parte is defined at p. 394 as “on behalf of, proceeding by one party in absence of the other.” In my opinion it seems it is within this meaning that a “party [respondent who] does not appear” is used in Order
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36, r. 18, and it is respectfully submitted that it is also in that same sense that Section 51 of the Native Courts (Colony) Ordinance (supra) attaches to the clause “where the defendant or respondent has not appeared…”
In that sense “has not appeared” does not necessarily include not having notice or not being aware. It would seem then that Gyambiby’s case (supra) must have been decided on the special facts — as the decision in my respectful opinion turned more or less on the aspect of the court’s discretion.
The facts in Watalah v. Ghana Primewood Products Ltd [1973] 2 G.L.R. 126, heavily relied on by the plaintiff s counsel were in my view very similar to the Tromu II case (supra). For, in the Watalah case too, the defendants’ representative was present in court but would not take part in the hearing because his counsel was absent. However, there, Charles Crabbe J. sitting at the Sekondi High Court, refused an application under Order 36, r. 18 of L.N. 140A. After reviewing the facts as to what happened at the trial, he concluded thus at p. 136:
“There has, therefore, in my view, been a trial of the issues on the merits of the case and I really find it difficult to accede to the motion for an order to set aside the judgment. It was not obtained by default. Nor is it a judgment obtained in the absence of one of the parties within the meaning of Order 36, r. 18 of L.N. 140A.”
I respectfully agree that where the plaintiff leads evidence to prove his case there would have been a trial of the issues on the merits of the case; and it will therefore not be a judgment by default although the defendant had not appeared; which respectfully is the crux of the rule. It would seem then that the ratio decidendi of that judgment is that Order 36, r. 18 applies where the other party was physically “absent” from court. In other words when a party is present in court, but he refuses to take part by reason of the absence of counsel that is not a case “where the party has not appeared.”
The Tromu II case was regrettably not cited before Charles Crabbe J., but his decision as to the application or not of the rule in my respectful opinion is not in accord with the decision in the Tromu II case (supra).
I have also been referred to the case of Agyeman v. Ghana Railways and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60. There the judgment was obtained in default of pleadings; so although the case is an authority as to the exercise of a judge’s discretion in such matters it is no authority as to when an application under Order 36, r. 18 lies.
In my respectful opinion it seems to me that where a party has committed the conduct of his case to a professional representative, and that representative was absent, it may be properly argued that the party was absent, although he was physically present in court. The case may then fall within Order 36, r. 18. On that reasoning I am obliged to follow the Tromu II case (supra) which like the Gyambiby case (supra) is likewise binding on me and to hold that the present application is properly brought under Order 36, r. 18.
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I now come to the issue of discretion. It is unnecessary to refer to the number of authorities to which I was treated during argument, save to the case of Collins v. Paddington Vestry (1880) 5 Q.B.D. 368 at pp. 380-381, C.A. cited in Ojikutu v. Odeh (1954) 14 W.A.C.A. 640. The principle there as stated by Thesiger L.J. is to the effect that until the case had been heard on the merits, the court may not shut out a party for neglect or default on his part which may have led to a judgment by default or in his absence. In applying that principle, however, the result will depend on the particular set of facts and circumstances in each case. This is so because the variety of circumstances which may call for the exercise of the discretion is hardly alike. And so it was pronounced on high authority that “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. . .” (See Agyeman v. Ghana Railways and Ports Authority, Takoradi (supra)).
In the instant case there were the particular facts and circumstances of the case as stated by Anterkyi J. by which he decided to proceed with the trial in spite of the application for an adjournment by the defendant. Order 36, r. 18 speaks of the judgment being “set aside by the Court or a Judge upon such terms as may seem fit. . . “ At p. 5 of Odgers on Pleading and Practice (15th ed.), the terms are explained thus:
“The Rules of the Supreme Court constantly use the phrase ‘the court or a judge.’ Here ‘the court’ means one or more judges sitting upon the bench in open court, and ‘a judge’ means a judge sitting in chambers.”
It is nevertheless the settled practice that applications under the rule should if possible be made to the judge who tried the case: see Schafer v. Blyth [1920] 3 K.B. 140.
However, the application is brought before me apparently because Anterkyi J. has, since the judgment in issue, gone on transfer to Ho in the Volta Region of Ghana, hundreds of miles from Sunyani. And in that situation it can fairly be said that it is impracticable to move the application before him. It may be noted that this court has concurrent jurisdiction with the court whose discretion is now being questioned. The rulings of that court are not binding on me; nor am I obliged to follow any. The point, in my view, is that a fundamental principle of our legal system in Ghana is a firm recognition of judicial precedent which in turn rests on the system of the hierarchy of courts. Adherence to these principles make for judicial consistency and legal certainty. Ingenious incursions or open invasions will no doubt lead to chaos. In my view such may amount to an incursion of those principles, were every litigant to choose his own judge or court by whatever device. It behoves all engaged in the administration of the law to resist any such attempts.
Now under the English rule—which is Order 36, r. 33, the commentator in The Annual Practice (1965 ed.) at p. 825 speaks of judgment by default and notes that:
“The [Court of Appeal] has power to entertain an appeal direct from such a judgment [citing] Amour v. Bate, ([1891] 2 Q.B. 323) but the
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proper course is for the defaulting party to apply to the Judge who heard the case to set aside the judgment and restore the action to the paper.”
It may well be that by analogy, where as in this case, it is impracticable to put the application before the judge who heard the case there is good reason for the application being heard at the Court of Appeal.
Be that as it may the law is settled that in questioning the exercise of the discretion of a court, one does not interfere because faced with those facts that other court would have itself come to a different conclusion. In other words it is not open to that other court to substitute its own discretion for that of the court whose discretion is being questioned. What the law requires is that it must be evident that in exercising its discretion that court has failed or omitted to consider relevant material or has based its decision on extraneous material: see Agyeman v. Ghana Railways and Ports Authority, Takoradi (supra). I have examined the affidavits together with the exhibits and on consideration of the submissions, I do not find it just to interfere with the decision of Anterkyi J. in proceeding with the hearing as he did.
The application therefore fails with costs of 050.00 against the defendant-applicant.
DECISION
Application dismissed.
S. Y. B.-B.
