OSMAN v. HAUSA AND ANOTHER [1971] 2 GLR 195

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 22 JUNE 1971

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) County Theatre & Hotels Ltd. v. Knowles [1902] 1 K.B. 480; 71 L.J.K.B. 351; 86 L.T. 132, C.A.

(2) Richardson v. Le Maitre [1903] 2 Ch. 222; 72 L.J.Ch. 779; 88 L.T. 626

NATURE OF PROCEEDINGS

PRELIMINARY POINT raised suo motu by the trial judge that a case listed for hearing was not properly before him. The facts are fully set in the judgment.

COUNSEL

Owusu Yaw for the plaintiff.

Pobee for Asumadu-Sakyi for the defendants.

[p.196] of [1971] 2 GLR 195

JUDGMENT OF TAYLOR J.

On 20 January, 1968 the plaintiff as head of family of one Mamiru (deceased) sued the defendants claiming by his writ of summons a declaration of title to and possession of a house and an order of perpetual injunction restraining the defendants from interfering with his ownership and possession of the said house. Pleadings were duly delivered, and on 18 April 1968 the plaintiff by his solicitor took out a summons for directions under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 30, returnable on 29 April 1968. On 29 April 1968 the summons for directions came before Francois J. who made an order that the case should proceed to trial on the agreed issues and ordered the registrar to fix a date.

It appears that the registrar did not fix a date and no further steps were taken in this action until 5 May 1971 when the solicitor of the plaintiff by a letter to the registrar requested the suit to be listed for hearing on a date in June. This was acceded to and the registrar fixed 15 June 1971 as the hearing date and on 20 May 1971 the solicitor for the defendants was served to appear on the said 15 June 1971 for the hearing. On 15 June 1971 Owusu Yaw appeared for the plaintiff and Abeyie holding brief for Asumadu-Sakyi appeared for the defendants. Having regard to the provisions of Order 64, r. 12 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), I took the view that the case was not properly before me. I drew counsel’s attention to the said rule and invited arguments. Counsel for the plaintiff has submitted very vigorously that Order 64, r. 12 does not apply because writing to the registrar, as they did, does not amount to a “proceeding.” Counsel submitted further that after summons for directions a case is ripe for hearing and there is no other proceeding to be taken apart from fixing a date for hearing. He submitted that proceeding is a step in connection with the case which one party or the other may take but that in this particular case he has taken no steps and there is no step to be taken by the parties as the matter of fixing a date has been left by the court to the arbitrary discretion of the registrar who is not a party to the suit. Therefore this case is not covered by the rule.

I must say that these apparently plausible arguments are at first blush attractive and superficially ingenious but on careful examination they appear to be misconceived. Nevertheless, they do raise the issue as to the meaning and therefore scope of Order 64, r. 12 (supra). Before examining the argument it may be worth while to look a little closely at Order 64, r. 12 as aforesaid. The rule involves a rather obscure but simple point of procedure about which there is probably no decided local authority; at least I have not succeeded in laying hands on any local case in point. I must therefore resolve the issue as best as I can. Now the Order is in the following form:

“in any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention [p.197] of [1971] 2 GLR 195 to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed to be a proceeding within this rule”

It seems to me quite clear on reading the rule that the first part of the rule means no more than that after the expiration of one year from the date of the last proceeding taken in a cause or matter, the party desiring to proceed shall give the other party one month’s notice of his intention to proceed. This meaning of the rule is amply confirmed by a consideration of the present wording of the rule as is contained in the English Rules of the Supreme Court (Rev.) 1962, Order 3, r. 6. It is ass follows:

“Where a year or more has elapsed since the last proceeding in a cause or matter, the party who desires to proceed must give to every other party no less than one month’s notice of his intention to proceed.” In order to apply the rule to the proceedings before me it is necessary to find out whether in the case before me a year had elapsed or there had been no proceeding for one year since the last proceeding was taken. In this respect I agree with the contention of counsel that proceeding in the suit in the context of the rule is a step in connection with the case which one party or the other may take. The difficulty in the argument is therefore not so much the meaning of proceeding as the contention by counsel that the plaintiff has taken no steps in the action and so he is outside the purview of the rule. This argument would seem to suggest that a summons for direction is not a step in the action. Now this seems to be an erroneous view at least of the effect of a summons for direction on which an order has been made as in the case of the summons taken by the plaintiff in this case on 29 April 1968. Indeed this is not the first time at least within the experience of English judges when a party who attended the summons for direction and obtained an order has maintained that he had not taken any step in the proceeding. In County Theatre & Hotels Ltd. v. Knowles [1902] 1 K.B. 480, the Court of Appeal in England had just such a party to contend with and the court held that the party, then defendant in the case, who attended a summons for directions under Order 30, and acquiesced in the order made on the summons had taken a step in the action.

Collins M.R. in that case dealing with the effect of Order 30 of the English Rules, a rule in pari materia with our Order 30, came to the following conclusion to which Romer and Mathew L.JJ. concurred at p.481:

“That which Order XXX has done is to enable the parties to obtain on one summons an order, with respect to all interlocutory proceedings to be taken in the action which they might, before this rule took effect, have obtained on several distinct summonses. The parties appear before the master, with as it were, a blank sheet on which he may make this inclusive order. When he does so, with the acquiescence of both parties, there is just as much a step in the proceedings by each of the parties as if an order has been made on his separate application.”

[p.198] of [1971] 2 GLR 195

In the later case of Richardson v. Le Maitre [1903] 2 Ch. 222 at p. 225 Swinfen Eady J. after relying on and discussing this decision of the Court of Appeal, observed in a somewhat similar situation in which the defendant although he attended the summons for direction maintained that he had not taken steps in the proceeding, that “Attending this general summons for directions without objection, and without asking for an adjournment, in order to make an application to stay the action, is taking a step in the proceedings.” A fortiori, in this case where the plaintiff took out the summons himself and succeeded in securing the order of Francois J. it does seem to me that it does not lie with him to deny taking a step in the proceedings. In any case the last sentence of the rule excludes a summons on which no order has been made and thus by implication even in the absence of any decided case, proceeding under the rule will include a summons on which no order has been made. Thus it appears that the last proceeding in this suit is the summons taken on 29 April 1968 and on which Francois J. made the order that the action should proceed to trial on the issues agreed to by the parties.

The next matter to decide is whether any of the parties has shown a desire to proceed. In this connection it seems to me that by his letter to the registrar of 5 May 1971 the plaintiff clearly evinced a desire to proceed with this case. In the light of this it seems to me that the plaintiff was bound to give to the defendants one month’s notice of his intention to proceed. This has clearly not been done and the argument advanced on behalf of the plaintiff for not doing this is what I adverted to at the commencement of this ruling. The first argument of counsel that writing to the registrar does not amount to “proceeding” is not only irrelevant; it misconceives “proceeding” as used in the rule. The relevant thing to consider is not “proceeding” simpliciter but “last proceeding had.” It refers within the context of this case to the summons taken on 29 April 1968 and not to the letter written on 5 May 1971. I do not therefore feel obliged to make any comment or observation or ruling as to whether a letter written to the registrar is a step in the proceeding. I know of course and the note in the White Book on the rule supports it, that communication between the parties to the suit is outside the purview of the rule.

The second contention of counsel, certainly the most impressive, is that founded on the argument that by the order of Francois J. the parties had nothing to do but to wait for the registrar to fix a date in accordance with the said order. This argument cannot prevail in view of the language of the said Order 64, r. 12. Observe the language very closely; it spells out a duty and that duty, the duty to give a month’s notice imposed on the party who desires to proceed with the action, arises ipso facto after the expiration of one year from the last proceeding had. It is a duty discernible from an analysis of the language of the rule and it can be seen that it is neither dependent on, nor subject to, any other duty which the registrar or any other party may have. Therefore although I agree that the registrar had a duty under the court’s order to fix the cause for hearing, nevertheless

[p.198] of [1971] 2 GLR 195 since no time limit was set for him to fix the cause, it cannot be said that he has failed to carry out the court’s order. The fixing of the case for hearing must take in the nature of things depend on so many factors which the registrar must take into account before acting. Considerations like the number of cases pending and earlier cases entitled to priority are surely matters he ought not to ignore lightly. It seems to me therefore that the plaintiff in this case by his letter dated 5 May 1971 showed that he desired to proceed with this suit in which there has been no proceeding for more than three years since the last proceeding was had on 29 April 1968. In the circumstance Order 64, r. 12 enjoins on him the duty to give one month’s notice of his intention to proceed, before the case can be proceeded with. In so far as he failed to do this, I think the case is not properly before me. I apprehend the reason for the rule is to give the other party sufficient time to make the necessary preparation for the case. If that is so it is a good and sound rule. Since the plaintiff has ignored it, I shall strike the cause out from the list of cause with liberty for the plaintiff or the defendants if they intend as well to proceed, to give the statutory one month’s notice and thereafter cause the cause to be fixed for hearing. There will be no order as to costs.

DECISION

Case struck from the list.

No order as to costs.

S. A. B.