TWUM AND ANOTHER v. GYAABAH [1971] 2 GLR 493

DIVISION: IN THE COURT OF APPEAL

DATE: 25 OCTOBER 1971

BEFORE: AZU CRABBE J.S.C., LASSEY AND ARCHER JJ.A.

CASE REFERRED TO

Treherne v. Dale (1884) 27 Ch.D. 66; 51 L.T. 553; 33 W.R. 97, C.A.

NATURE OF PROCEEDINGS

RULING on an application for an extension of time to cover date on which costs were paid.

COUNSEL

Carson for the applicants.

E. D. Kom (with him Djamson) for the respondents.

JUDGMENT OF ARCHER J.A.

Archer J.A. delivered the judgment of the court. The plaintiff issued a writ of summons in the High Court at Cape Coast claiming against the defendants:

(1) declaration of title to a piece or parcel of land;

(2) perpetual injunction against the defendants, their agents and servants;

(3) N¢500.00 general damages against the defendants jointly and severally.

The defendants failed to deliver their statement of defence within the time prescribed by rules of court, and the plaintiff moved the court for entry of judgment in default. Accordingly, judgment was entered against the defendants on 15 December 1969. Thereafter, the defendants applied to the court below to set aside the judgment and awarded N¢200. 00 costs against the defendants.

Being aggrieved by the order of the court below (setting aside the judgment in his favour) the plaintiff appealed to this court and on 23 March this court made the following order:

“We think that the judge gave a wrong reason for setting aside the judgment in default. But there can be no doubt that the statement of defence and counterclaim disclose sufficient grounds upon which the defendants should be let in to defend the action. In the circumstances we dismiss the appeal but we order that as a condition for setting aside the default judgment the defendants should within one month from the date hereof pay to the appellant the costs of N¢200. 00 awarded by the trial judge. No order as to costs in this court. Court below to carry out.”

The defendants were not present and they were not represented by counsel when this court heard the plaintiff’s appeal. Although they admit in their affidavit that they were informed by their counsel that the plaintiff had filed an appeal, yet they deny that they knew of the hearing date of the appeal. However, on 28 April 1971 the defendants were served with copy of a decree demanding the sum of N¢200.00 costs awarded by this court and for the first time, according to the affidavit, the defendants got to know that they were liable to pay N¢200.00 costs within one month as a condition for setting aside the judgment against them. Three days later, that is, 1 May 1971, the defendants paid the sum of N¢200. 00 into court at Cape Coast and then applied to this court for an extension of time within which to pay the said sum. As the defendants were not present in court when the court’s order of 23 March 1971 was made, it was necessary to serve a copy of the order on them promptly so as to affect them with notice of the order but this was not done. Service upon them was necessary because the court’s order set aside the judgment on condition that costs of N¢200.00 were first paid by the defendants. How can the defendants comply with this condition when they did not know of it?

[p. 495] of [1971] 2 GLR 493

Order 31 of the Supreme Court Rules, 1962 (L.I. 218), provides that the court “generally shall have a full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the court as a court of first instance.” Now Order 41, r. 6 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), also provides that:

“Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order, within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be indorsed a memorandum in the words or to the effect following, viz:

‘If you, the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same judgment (or order)’.” Baggally L.J. in Treherne v. Dale (1884) 27 Ch.D. 66 at p. 69, C.A. rightly pointed out that, “The rule, however, does not provide that the indorsement must be in the words there mentioned, but ‘in the words or to the effect following’.” It follows, therefore, that provided the endorsement indicates the legal consequences if the order is not obeyed, then the indorsement is sufficient.

In the present appeal, the defendants were ordered to pay costs within one month. The legal consequence for failing to do so cannot amount to contempt of court but would merely be the reinstatement of the summary judgment entered in default against them. The defendants were at liberty either to pay the costs within one month so that the judgment in default would be set aside or to refuse to pay so that the summary judgment entered in the court below would stand.

Here, it is not a case where the defendants have refused to pay. They maintain that they were not aware of the hearing date of the appeal and were also not aware of the order of this court enjoining them to pay N¢200.00 costs within one month as a condition for setting aside the judgment against them. They have, therefore, asked the court to grant them extension of time so as to cover the date on which they made payment into court. There is no doubt that when this court stipulated one month for the payment, it did so by virtue of its inherent jurisdiction to determine the period within which the payment should be made. It did not rely on any rule of court for deciding on one month. It follows also that it has an inherent jurisdiction to enlarge the period of one month unfettered by any rules of court.

In his affidavit in opposition, the plaintiff revealed that on 23 March 1971, when this court’s order was made, the second defendant was seen at Nyakrom “wearing a white cloth round his head with a long piece of white cloth tied round his arm and riding in a taxi which was also flying a flag on its staff.” Moreover, “the taxi travelled through all the principal streets of Nyakrom with the second defendant announcing his victory in

[p.496] of [1971] 2 GLR 493 the Court of Appeal.” The invitation to the court is that the court must hold that the defendants knew of the court’s order otherwise there would have been no jubilation at Nyakrom on the day the order was pronounced. Is this invitation to be accepted? It should be declined. Whether there was jubilation or not, there is no evidence that the defendants knew of the condition imposed by the court for setting aside the judgment. If the defendants had been in court, service of a copy of the order would have been unnecessary.

Should the application be granted? First of all the court is not tramelled by any rule of court against enlargement of time as it has to rely on its discretion. Secondly, the defendants were not in court when the condition was imposed and as soon as they knew of it they promptly paid the money into court. Thirdly, the order of this court makes it clear that “the defence and counterclaim disclose sufficient ground upon which the defendants should be let in to defend the action.” This means that the defendants’ case is worth adjudicating upon and it would-be unjust now for the same court to take a step which would inevitably prevent their case from being adjudicated upon.

In all the circumstances, it is just and proper to grant the application for an extension of time. As the condition has already been fulfilled, the judgment in default now stands as having been set aside.

DECISION

Application granted.

[Reported by S. Osafo, LL.B (GHANA).]