VASQUEZ vs. QUARSHIE AND OTHERS [1968] GLR 62

CASE REFERRED TO

Windsor v. Chalcraft [1939] 1 K.B. 279; [1938] 2 All E.R. 751; 107 L.J.Q.B. 609; 159 L.T. 104; 54 T.L.R. 834; 82 S.J. 432, C.A.

NATURE OF PROCEEDINGS

MOTIONS by a defendant and his insurers to set aside a judgment in default. The facts are set out in the ruling of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

J. Lamptey for H.P. Swaniker for the applicants.

K. Ohene-Ampofo for the respondent.

JUDGMENT OF AMISSAH J.A.

The plaintiff brought this action in negligence against the defendants. It was tried, and on 23 October 1967 judgment was given awarding damages against the defendants including the first defendant. This motion has now been brought by the State Insurance Corporation and the first defendant to have the judgment set aside on the ground that the first defendant was not notified of the hearing and therefore was deprived of an opportunity of being heard. If that is so, the prejudice which the first defendant suffered was aggravated by the fact that findings were made against him.

The State Insurance Corporation were not parties to the action. But they base their application on the authority of Windsor v. Chalcraft [1939] 1 K.B. 279, C.A. that as insurers of the first defendant, they are under a statutory liability to pay the plaintiff the amount of the judgment and therefore were entitled to be heard on such an application. That was a running-down action in which the plaintiff notified the defendant’s insurers that he had issued a writ against the defendant. The defendant entered no appearance, and judgment was given against him by default. A summons was taken out for the assessment of damages before a master on which occasion the defendant again made no appearance. No notice was given to the insurers that the writ had been served, or that the case had been set down for trial. They therefore applied to have the case set aside and succeeded. The insurance legislation in England in this respect is not very different from that in this country. Section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), makes the [p.64] of [1968] GLR 62

insurers liable for the damages and costs awarded against a negligent assured. There is a slight difference in the time within which the insurers should be notified of the proceedings as a condition of their liability. The plaintiff is required in England to notify the insurers of the defendant within seven days of the commencement of the action against the defendant. The requirement in this country is notice within fourteen days of the commencement of the proceedings. The basis of the decision is that as the insurers were under a statutory liability to meet the judgment debt of the assured they were entitled to be heard on an application to set aside a judgment in default. That should apply to the circumstances of the present case as the State Insurance Corporation are under a similar statutory obligation. They are persons who may be described as being injuriously affected by the judgment and therefore ought to be beard. But whether they are entitled to be heard or not does not make much material difference to the result in this case, because the first defendant himself also applies that the judgment be set aside.

From a look at the notice of the hearing, it is quite clear that the first defendant was never notified of the hearing. The certificate endorsed at the back of the copy of the notice on the court record shows that the notice was to be served on the first defendant at London Market, Accra, but the server was told that the first defendant was no more living there. There is no endorsement that anybody else was notified on his behalf.

Mr. Ohene-Ampofo, counsel for the plaintiff, has objected to the application on two main grounds. The first is that Order 36, r. 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), governing procedure in the High Court strikes down this application. That rule provides that:

“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 point made was that within three days after the trial which ended on 23 October 1967, both the first defendant and his lawyer were served with the judgment after trial. They could therefore have applied within time to have the judgment set aside. But they did not. And they have not now come before the court asking for an extension of that time. At the time of the submission there was, unfortunately, no proof of when or on whom the judgment after trial was served if it ever was. The submission cannot therefore be accepted with any degree of confidence. But more important still I do not think that the rule referred to is applicable. It is quite clear if one reads it with the

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two immediately preceding rules that it contemplates a situation where the party is aware of the proceedings but fails to appear. It is not intended to apply when he is unaware of the hearing. Rule 16 for example speaks of the plaintiff proving his claim, so far as the burden of proof is on him, if the defendant does not appear. But no court is, to my mind, entitled to call upon a plaintiff to proceed with the proof of his claim if it is aware that the defendant has not been notified of the hearing. Similarly rule 17 speaks of the defendant having the action against him dismissed and proving his counterclaim, if any, should the plaintiff not appear. Here again a court which allows this to happen with full knowledge that the plaintiff does not appear only because he is not aware of the proceeding will be offending against the elementary principle of justice which obliges it to hear both parties, or at least give them an opportunity to have their say, before its decision. A court is only entitled to give a judgment in default if the party fails to appear after notice of the proceedings has been given to him. For then it would be justifiable to assume that he does not wish to be heard. It is this party with notice who defaults in appearance who is privileged to come before the court within fourteen days to have the judgment set aside, if he has some substantial reason for failing to appear when he should have. To hold that his brother without notice is also obliged to come before the court within the same time limit would lead to some inequitable results. It is not impossible that he would get to know about the judgment against him long after the fourteen-day period has elapsed. What should he do then? Should he come to the court and ask for an extension of time within which to apply? I think not. His entitlement to have the judgment set aside in such circumstances is as of right and should not be made dependent on the discretion of the court. A court making a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction. A person who is condemned in his absence in proceedings of which he has no knowledge cannot be limited as to the time within which he may repudiate the decision. Learned counsel attempted to equate a notice served on the first defendant to produce documents at the trial with notice of the trial. But a cursory examination of the notice shows that this cannot be. It contains no notice of the hearing date. A request that you should produce a document when the trial is on is no notice of the time when the trial is to begin or to continue.

The second point made by Mr. Ohene-Ampofo was that the damages were apportioned and therefore only that part affecting the first defendant should be set aside if the court is disposed to setting anything aside. I have given much anxious thought to this. I have looked at the judgment in the case. The apportionment was based on

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an assessment of the proportions in which the defendants and one other person, not sued, were held responsible for the plaintiff’s damage. One cannot upset a part without upsetting the whole. In the circumstances I must with considerable judgment regret set aside the whole judgment.

It is accordingly set aside.

DECISION

Applications granted.

S.K.T.