REPUBLIC vs. HIGH COURT, KOFORIDUA AND ANOTHER; EX PARTE OHENE [1995-96] GLR 1

CASES REFERRED TO

(1) Gill v Woodfin (1884) 25 ChD 707; 53 LJ Ch 617; 50 LT 490, CA.

(2) Gibbings v Strong (1884) 26 ChD 66; 50 LT 578, CA.

(3) Montago v Land Corporation of England (1887) 56 LT 730.

(4) Mosi v Bagyina [1963] 1 GLR 337, SC.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari by the defendant-applicant to quash a judgment in default of defence given against him by the High Court, Koforidua even though his statement of defence was on the record. The facts are sufficiently stated in the judgment of Charles Hayfron-Benjamin JSC.

COUNSEL

Kwaku Ansa-Asare for the applicant.

James Ahenkorah (holding brief for D Y Osei) for the interested party.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

The applicant herein, Mr Kwamina Ohene, prays this court for an order of certiorari “to quash the orders of the High Court, Koforidua contained in the judgment. . . dated 28 March 1994.”

The matters giving rise to this application are that the applicant and one Kwabena Atta were sued at the High Court, Koforidua by a man named Samuel Kwame Owusu who described himself as suing “for himself and on behalf of his family of Kankan” for certain reliefs which are not necessary to set down in this application. When the writ of summons was served on Kwabena Atta, described in the writ as the first defendant, he consulted his solicitors and instructed them to enter appearance on his behalf. The solicitors, it appears, without ascertaining whether the applicant, described in the writ as the second defendant, had been served with a summons and wished to retain them, erroneously entered appearance for both defendants. As stated above, the applicant had not, at the time that the solicitors purported to enter

[p.4] of [1995-96] GLR 1 appearance for him, been served with his copy of the writ of summons. Besides, the applicant did not even know the solicitors for the first defendant (Kwabena Atta). Therefore when the applicant was subsequently served with this copy of the writ of summons he also consulted his own solicitors and instructed them to enter appearance on his behalf.

If the averments contained in the affidavit of Mr Samuel Morrris Kotei, Deputy Chief Registrar of the High Court, Koforidua are correct then “they on the 7th day of December 1993, entered absolute appearance through Adjubi Chambers” then again “on or about 31 January 1994 Hencil Chambers purported to enter an appearance on behalf of the second defendant in respect of whom there had already been filed an entry of appearance.” It appears that the applicant’s solicitors much later in the day filed a defence to the claim.

It seems that in spite of the defence being on file, the plaintiff moved for judgment in default of defence. Upon the matter coming before the learned High Court judge on 8 March 1994, the registrar again avers in his affidavit that:

“One Onny Esq of Hencil Chambers indicated that he had filed a defence though belated but the court indicated that in view of the prior appearance entered by some other counsel in keeping with rules of court it will not have regard to the defence.”

(The emphasis is mine.) The court accordingly gave interlocutory judgment for the plaintiff and proceeded to assess damages. Final judgment was delivered on 28 March 1994.

In the present application, three grounds have been stated upon which this court is invited to exercise its supervisory jurisdiction and quash the judgment and orders of the High Court, Koforidua, These are:

“(i) That the proceedings of the High Court, Koforidua in so far as they affected the applicant were irregular because the judge held the applicant to be bound by the acts of a solicitor who had not been instructed by the applicant.

(ii) That the learned judge erred when he refused to hear the applicant’s solicitors on 8 March 1994, purely on the ground that another solicitors, Nana Asibey-Yeboah, had entered appearance for both defendants when that in fact was not

[p.5] of [1995-96] GLR 1 borne out by the records, thus violating the rules of natural justice.

(iii) That by refusing to hear the applicant the learned trial judge disabled the applicant from prosecuting his defence and thereby resulting in a substantial miscarriage of justice.”

It must be noted that the applicant has captioned his application as being presented to this court under Order 59—presumably of the High Court (Civil Procedure) Rules, 1954 (LN 140A). This is an obvious error as these rules do not apply to this court. There is, however, ample authority for the proposition that a court ought not to be necessarily concerned with the rule stated in the caption to the motion paper. The important condition should be that the prayer in the motion paper must be such as the court can be seised with jurisdiction to resolve one way or the other. In the instant application, it is quite clear that the applicant is inviting this court to exercise its supervisory jurisdiction and grant him relief.

The issues raised in the applicant’s grounds for relief are mainly procedural and with great respect to the learned High Court judge his view constituted unwarranted misapplication of the rules of LN 140A. Order 7, r 2(1) and (2) of LN 140A provides as follows:

“2. (1) A party suing or defending by a solicitor shall be at liberty to change his solicitor in any cause or matter, without an order for that purpose, but unless and until notice of any change of solicitor is filed and copies of the notice are lodged and served in accordance with paragraphs (2) to (5) inclusive of this rule, the former solicitor shall (subject to the provisions of rules 3 and 4 of this Order) be considered the solicitor of the party till the final conclusion of the cause or matter.

(2) Notice of any change of solicitor shall be filed in the Registry of the appropriate court.”

It is clear that any party is “at liberty” to change his solicitor “without any order for that purpose.” Consequently, in the instant situation, it was wrong for the learned High Court judge to conclude that the applicant was bound by the appearance entered on his behalf by solicitors who he never knew nor had instructed. The situation would not be different even if the applicant knew them and had authorised them to enter the appearance on his behalf. All that a party

[p.6] of [1995-96] GLR 1 who changes his solicitor is required to do is to file a notice of change of solicitor under Order 7, r 2(2) of LN 140A. In my respectful opinion, the requirements of Order 7, r 2(2) of LN 140A are satisfied when the new solicitor files a fresh memorandum of appearance “in the Registry of the appropriate court.”

Yet again the learned judge was wrong in refusing to acknowledge the existence of the applicant’s defence which was on record. The applicant concedes that he filed a belated statement of defence. The registrar by his affidavit impliedly informs this court that there was indeed a defence on the docket but the judge for the reasons stated above would not “have regard” to it. Consequently, the learned judge breached the provisions of Order 27, r 11 of LN 140A which provides:

“11. In all other actions than those in the preceding rules of this order mentioned, and those to which Rule 19 of this order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court or a Judge shall consider the plaintiff to be entitled.”

The scope of Order 27, r 11 of LN 140A must be distinguished from the effect of default of defence under Order 27, r 7 of LN 140A. In the latter rule, the claim must be for recovery of land in such circumstances as the plaintiff may recover possession by an application under Order 47 of LN 140A. In other words, there must be a relationship however informal, of landlord and tenant. In the instant application, the plaintiff indorsed his writ for, inter alia, a declaration of title to the land and perpetual injunction. In those circumstances, the applicable rule of court by which the plaintiff could have approached the court was Order 27, r 11 of LN 140A.

The matter in issue is whether the learned High Court judge could not “have regard” to the defence which was already on the docket. The Annual Practice, 1956 citing the English cases of Gill v Woodfin (1884) 25 ChD 707, CA; Gibbings v Strong (1884) 26 ChD 66, CA and Montago v Land Corporation of England (1887) 56 LT 730 explains in a note under the sub-title “Defence delivered after Default” that: “A defence delivered after the proper time cannot be disregarded, even though it is not delivered until after the plaintiff has served

[p.7] of [1995-96] GLR 1 notice of motion for judgment under this Rule. In such a case the Court will have regard to the contents of the defence delivered out of time, and deal with the case in such a manner that justice can be done.”

In the light of the authorities, it must be concluded that a court cannot regard a statement of defence filed out of time as a nullity. It is bound to “look” at it and deal with it in such a manner that justice can be done.

In the present application, even though the learned High Court judge breached the rules of court he only erred within his jurisdiction and therefore certiorari did not lie to quash his judgment and orders. However, to the extent that the rules of the High Court were breached, the judgment under attack is void. Relying on the famous dictum of Akufo-Addo JSC (as he then was) in Mosi v Bagyina [1963] 1 GLR 337 at 347, SC it would appear that the applicant is entitled ex debito justitiae to have the judgment set aside. The voidness of the judgment, having been clearly demonstrated to us in this application we have no discretion but to set the same aside.

The application therefore succeeds. The matter will take its normal course in the High Court, Koforidua.

JUDGMENT OF ADADE JSC.

I agree.

JUDGMENT OF AMUA-SEKYI JSC.

I also agree.

JUDGMENT OF AIKINS JSC.

I also agree.

JUDGMENT OF EDWARD WIREDU JSC.

I also agree.

DECISION Application granted. JNNO