HIGH COURT, KUMASI
Date: 17 JUNE 1974
MENSA BOISON J
CASES REFERRED TO
(1) Evans v. Bartlam [1937] A.C. 473; [1937] 2 All E.R. 646; 106 L.J.K.B. 568; 53 T.L.R. 689; 81 S.J. 549; 157 L.T. 311, H.L.
(2) Agyeman v. Ghana Railway and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60.
NATURE OF PROCEEDINGS
APPLICATION by the defendant to set aside a judgment in default of appearance on the grounds that he could not defend the action because he was in political custody at the relevant period and that the damages awarded against him were so substantial that he would suffer hardship if the judgment was not set aside. The facts are sufficiently set out in the ruling.
COUNSEL
Mmieh for the applicant.
Obeng for the respondent.
JUDGMENT OF MENSA BOISON J
This is a motion to set aside the judgment of this court dated 31 October 1973 in default of appearance at the trial.
The original action was a claim principally for arrears of rent and damages for disrepair under a tenancy agreement, the defendant (hereinafter called the applicant) having leased a building of the plaintiff ‘s (hereinafter called the respondent) for the purpose of his practice as a medical practitioner. Early in 1969, however, the applicant appeared to have made a bid for a political career. At the general elections of 1969 he was successfully elected a member of the Parliament of the Second Republic of Ghana, and indeed secured a seat as a cabinet minister in the erstwhile Government of the Progress Party. That must have decided the fate of the tenancy agreement. The applicant gave notice determining the lease with effect from 11 May 1969. It was as a result of a dispute arising out of this determination that the respondent had to issue his writ dated 26 February 1970, against the defendant, then a full-fledged cabinet minister of the Ghana Government on the African scene.
The relevant period material to the present application was from 28 February 1973 to 16 July 1973. That was the time when after a tortuous career the action at long last ripened for hearing. By that time, however, the applicant’s political fortunes had altered. The Progress Party Government had been removed from office by a military coup d’etat on 13 January 1972; and the applicant and others, commonly styled politicians, were in preventive custody. On the affidavits in this application I accept that the applicant’s period of detention was from 13 January 1972 to 3 July 1973.
[p.109] of [1974] 2 GLR 107
The rule under which the application is brought is Order 36, r. 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which states:
“Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within fourteen days after the trial.”
The rule does not appear to impose any limitation on the discretion of the court or on the matters that the court may consider in exercising its discretion to set aside such a judgment. That was the judgment of the House of Lords in the case of Evans v. Bartlam [1937] 2 All E.R. 646, when considering a similar application in default of appearance under the corresponding English rules, i.e. Order 13, r. 10 and Order 27, r. 15.
In my opinion the spirit of Order 36, r. 18 is the same and the jurisdiction is not to be fettered. But in Evans v. Bartlam (supra) it was nevertheless stated by Lord Russell of Killowen at p. 651 that:
“The contention no doubt contains this element of truth, that, from the nature of the case, no judge could, in exercising the discretion conferred on him by the rule, fail to consider both (a) whether any useful purpose could be served by setting aside the judgment, and obviously no useful purpose would be served if there were no possible defence to the action; and (b) how it came about that the applicant found himself bound by a judgment, regularly obtained, to which he could have set up some serious defence. But to say that these two matters must necessarily enter into the judge’s consideration is quite a different thing from asserting that their proof is a condition precedent to the existence or exercise of the discretionary power to set aside a judgment signed in default of appearance.”
The case of Agyeman v. Ghana Railway and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60 relied on by learned counsel for the applicant in my view affirms the point that the matter is one of discretion and that in exercising such a discretion the guiding consideration is whether or not the applicant has a reasonable defence. That was a case of default of appearance, and this was what the Court of Appeal said:
“The principle which guides a judge in the exercise of his discretion to set aside a judgment obtained in default of appearance (or of defence for that matter) is we think … that the party praying for the exercise of the court’s discretion must disclose either by affidavit or some other acceptable means that he has a reasonable defence to the claim and that it would be, in the circumstances, unjust to leave his case unadjudicated upon.”
The court nevertheless underlined the fact that the matter was one of discretion when it said further:
[p.110] of [1974] 2 GLR 107
“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 and on the view which the judge takes of the particular circumstances calling for the exercise of his discretion. In other words, the operative circumstances must be such that it would amount to injustice to leave the defendant’s case unadjudicated upon.”
In the present application the fact of the applicant’s custody during the relevant period is urged as the principal explanation for his failure to defend the action at the trial. Other grounds equally strongly urged are that the applicant has a reasonable defence to the action, and further that the judgment debt being substantial it would be a hardship to refuse the application.
I shall first take that aspect of the existence of a reasonable defence. Now having as a trial court heard the evidence of the respondent it is as well to resist the temptation of considering the defence other than that it discloses a triable issue, and not that it has the merit to succeed.
I have been referred to the statement of defence and in particular to paragraphs (4) and (8), and the issue thus raised between the parties. On that I think I am entitled to look at the evidence now, and to say that the fact that a notice to quit on 11 May 1969, given by the applicant was not strictly in issue. The substantial issue really was “whether or not the applicant handed over possession on 11 May 1969. “From the exhibits E, F, H, J and K which called for reply but which went unanswered, the only conclusion was that the applicant did not hand over possession on that date. It was a matter of law that he thereafter became a statutory tenant with its consequential effects (see the Rent Act, 1963 (Act 220), s. 29).
The issue then set down in the summons for directions as to whether the applicant gave proper notice to quit equally refers to notice that he was obliged by law to give as a statutory tenant. That was indicated in paragraph (3) of the respondent’s statement of reply. The plea in paragraph (9) of the defence is in my view no answer to that. But the applicant is not restricted to his defence only in this application. For having joined issue, the applicant would have been entitled to lead evidence at the trial in answer to the allegation of absence of notice to quit as a statutory tenant. No indication of that answer has been disclosed in his affidavit either. Indeed it seems to me that the applicant’s emphasis is on the reasons for his absence at the trial. That aspect is therefore of great importance and I shall proceed to consider it in a moment.
Before that, however, I must pause a while and consider learned counsel’s submission that the judgment for nearly 019,000. 00 is a hardship, and that that figure might have been arrived at, because the respondent did not, as he was obliged by law, take any steps to mitigate his losses. In particular it was urged, that as that aspect did not appear to have received the attention of the trial court, it is put forward as a weighty ground to have the judgment set aside for fresh hearing.
[p.111] of [1974] 2 GLR 107
In my view that was a matter of evidence whether or not the respondent ought to or took steps so as to mitigate his losses. The omission, if any, on the part of the trial court to have properly directed itself in that regard, seems to me to be a matter properly for an appeal. I am unable then to accede to the submission that that aspect is a ground in favour of the applicant in the circumstances of this application.
Now on the applicant’s explanation for his absence at the trial, the first point to consider seems to be whether or not the defence had due notice of the trial. There is evidence that while in office as a cabinet minister, the applicant did instruct Mr. S. A. Gyimah, as his solicitor, who wrote to the respondent to direct all matters concerning the dispute to him. When the respondent was eventually driven to issue out a writ of summons, apparently because of neglect of the applicant or his advisers to answer to the respondent’s letters on the subject, the applicant entered appearance by that same solicitor. And it was by that solicitor that the statement of defence was eventually filed.
The legal position then was so long as the applicant’s solicitor had not withdrawn himself from the record, process could properly be served on that solicitor. If such process was in fact served it was presumed to have come to the knowledge of the applicant. Any question of non-access to his client for the purpose of his giving evidence in court would naturally be brought to the notice of the court.
The trial in which the instant judgment was given took place on the following dates: 7 and 28 June 1973, and 16 July 1973. Written judgment was delivered on 31 October 1973. On all the three dates of trial both the applicant and his solicitor were absent.
Concerning the position of the applicant’s solicitor as to the material dates the record shows the following entries:
“28 February 1973 parties absent.
Court: Adjourned to 27 March 1973 for mention.
Parties to be notified.
27 March 1973 Mr. Asiedu for Mr. Obeng for the plaintiff.
Mr. Pobee for Gyimah for the defendant.
Court: Adjourned to 7 June 1973 for hearing.
7 June 1973 Mr. Obeng for the plaintiff.
Defendant absent—no appearance.
Court: Trial to proceed . . .
Further hearing adjourned to 28 June 1973.
28 June 1973 Mr. Obeng for the plaintiff.
Defendant absent.
[Hearing was continued and the plaintiff closed his case].
16 July 1973 Mr. Obeng for the plaintiff.
Defendant absent.
[Mr. Obeng addressed court].
Court: Judgment reserved.”
[p.112] of [1974] 2 GLR 107
I am entitled to assume that the appearance for both the respondent and the applicant on 27 March 1973 must have been the result of the hearing notice ordered on 28 February 1973. Indeed a return of search, filed by the respondent in opposition, shows that the hearing notice ordered by the court on 28 February 1973 was served personally on the applicant through his goaler, on 19 March 1973 at Nsawam Security Prisons. This is supported by a bailiff s affidavit in proof of service on the docket. The applicant must have communicated to his solicitor to have enabled Mr. Pobee to have appeared for Mr. Gyimah on 27 March 1973.
In respect of the applicant himself, he deposes in paragraph (7) of his affidavit in support of this application thus: “That I was not served with any hearing notice and as such could not appear.” That as I have just demonstrated above is not only incorrect, but shows also that there is no substance in the insistence, on the applicant’s behalf, that he could not attend the trial because he was in preventive custody.
As contended by counsel for the respondent, persons under such restrictions, as the applicant was, have always reasonable access to the courts, since any process on such a person is served through his goaler. And that was the case with the hearing notice ordered on 28 February 1973.
It is further deposed by the applicant, “That these occasions on which the matter was fixed for hearing mostly coincided with my attendance before several commissions of inquiry.” That is paragraph (5) of the affidavit in support. I find the excuse too general. The material dates as to the trial, after the hearing notice had been served on the applicant were as already stated above. The applicant has not specified any commissions before which he in fact appeared on any of those dates. That should be a matter which can easily be substantiated by the secretary of any such commission.
Further, since in this case there was a solicitor acting for the applicant any representation that the applicant for some reason could not or would not be permitted to attend court for the trial, would have been duly considered by the trial court. There is no record or evidence of any such representation and I can only presume the applicant was accorded the usual facility of access to the court when the hearing notice was served on him.
Mr. Obeng for the respondent has emphasised a series of instances on which the applicant ignored letters from the respondent or his solicitors. He has further made capital of the applicant’s delay in applying to set aside the judgment making it necessary for the court to grant an extension of time for this application. I do not accede to his submission that any such default, even his failure to attend the trial, can be interpreted to mean disrespect or much worse a contempt of the court. The position I think is that the rules governing civil proceedings in our courts, having provided coercive sanctions for a plaintiff to proceed to judgment in default, or the defendant to have the action dismissed, implied recognise that these defaults must occur.
[p.113] of [1974] 2 GLR 107
It is, however, I think another matter, and in my view properly so, when he urges upon the court that the diverse defaults of the applicant were calculated to put off the respondent or to thwart the respondent from the fruits of his judgment. Even so, I am of the opinion that so long as the application is bona fide, the applicant can properly urge for consideration as a reasonable explanation, the matters he has deposed to, to account for his failure to attend the trial.
This aspect of the matter appears to me important, because the rules, by making provision for actions to proceed in default, did not intend one party to conduct his litigation at his own sweet leisure. The rules of court in my view contemplate not only an end to disputes, but that litigation should be conducted with reasonable dispatch. As I have already found, the reasons for the applicant’s absence at trial after the hearing of 19 March 1973, have not been sustained.
There is one other aspect of this matter. A corollary of the principle of the rule of law and the liberty of the citizen, seems to me to be a right not to defend actions brought against the citizen. As I have already noted, the applicant was acting by a solicitor. We do not know what the applicant’s advisers counselled. It is said discretion is the better part of valour; and he who fights and runs away lives to see another day. It might well be a sound strategy for a defendant weighing the odds, to let the trial go by default. Supposing that was the advice, and it has now turned out to be sour, I do not think it right that the applicant be permitted to ask for a second tournament, by pointing out only that his defence discloses a reasonable defence; because his advisers must have been well aware of the chances of that defence.
In this application there is no affidavit, either from Mr. Pobee or Mr. Gyimah to say if anything went amiss, as giving an explanation for the absence of counsel for the applicant on the trial dates as set above. There is nothing from the applicant either concerning the absence of counsel. We are left to guess whether it was a studied design or an unfortunate mishap. In my view the omission is fatal to the success of the application.
For the above reasons I am satisfied the application must fail and accordingly I dismiss it, with costs of 080.00 to the respondent.
DECISION
Application dismissed with costs.
S.E.K.
