ACCRA FURNITURE AND RUBBER FOAM CO., LTD. vs. INDART S.P.A. OF ROME [1973] 2 GLR 289

CASES REFERRED TO

(1) Court v. Sheen (1891) 7 T.L.R. 556.

(2) Symon & Co. v. Palmer’s Stores (1903) Ltd. [1912] 1 K.B. 259; 81 L.J.K.B. 439; 106 L.T. 176, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Accra, allowing the respondent company to sign judgment immediately for the amount admitted irrespective of the pendency of a larger counterclaim. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Nelson-Cofie for the appellants.

No appearance for the respondents.

JUDGMENT OF APALOO J.A.

The respondent company by their agent entered into a contract with the appellant company to sell to it a quantity of goods manufactured by the former. These goods seem to have been duly shipped to the appellants by the respondents. As the latter did not receive payment for them, they took out a specially endorsed writ against the appellant company. It was endorsed as follows: “The plaintiff’s claim is for N¢72,550.77 (seventy two thousand five hundred and fifty new cedis, seventy-seven new pesewas) being the price of goods sold and delivered to the defendant company at its request.” The writ was taken out on 3 July 1969. The appellant company entered appearance to the writ on 29 July 1969. On 4 September 1969, the respondent company acting under rules 1 and 2 of Order 14 of the

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Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), sought leave to enter judgment against the appellants. In compliance or purported compliance with Order 14, r. 1, the late Mr. J.N. Heward-Mills, who was he solicitor to the respondent company, swore to an affidavit in which he deposed to his belief that the appellant company had no defence to the action. The appellants by their managing director, a Robert Okine Aryeetey, filed an affidavit in opposition and in paragraph (2) deposed that: “That the only amount the defendant company admits owing to the plaintiffs is N¢12,792.08 but the plaintiffs owe the defendants a much bigger amount for which the defendants intend to counterclaim.” In due course, the defendant company sought and obtained leave to counterclaim for the sum of N¢200,000 being unliquidated damages for “breach of promise.”

When the summons came for hearing before the court (Coussey J.), the respondent company, by their counsel, pressed for leave to sign judgment for the sum claimed on the ground that no valid defence was disclosed by the appellant company’s affidavit or in the alternative, for the amount admitted in paragraph (2) of the affidavit. For the appellants, it was urged that as there was a counterclaim for an amount larger than the sum claimed in the writ, there was no right to immediate judgment for the amount admitted.

The court did not accept the defendant company’s submission. It considered that the respondent company were entitled to sign judgment immediately for the amount admitted, irrespective of the pendency of the counterclaim and proceeded to give judgment for that amount with costs. It also entered judgment for the amount disputed, but stayed execution until the hearing and determination of the counterclaim which the court thought “is plausible.”

The appellant company dispute the correctness of the judgment by this appeal. Counsel for the appellants referred us to some of the exhibits and contended that they show that the respondent company were in breach of contract and were liable in damages to the appellants. We express no opinion on the merits of the counterclaim and say no more than that there is a chance of it succeeding. We think, like the judge, that that claim was at least plausible. But the question of substance raised by this contention is whether the judge was right in giving judgment to the respondents for the amount admitted inasmuch as there was a counterclaim for a larger amount. In so far as the procedure rules of the High Court shed any light on this matter, it would seem that Order 21, r. 16 does so albeit obliquely. It reads: [His lordship here read the provisions of the rule as set out in the headnote and continued:]

It seems plain from the facts that the appellants’ counterclaim was raised as a defence to the respondents’ claim. That claim cannot be held established unless it is determined on the merits by the usual adduction of evidence. The rule also empowers the court to give judgment for the defendant if the balance is in its favour. This cannot be determined until the counterclaim is adjudged on the merits and it is found to exceed the

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plaintiff’s claim. We are of opinion, therefore, that where as in this case, there was a claim and a counterclaim for an amount exceeding the claim, the plaintiff is not entitled to immediate judgment for the amount admitted, inasmuch as the amount could only be admitted subject to the counterclaim: see also Court v. Sheen (1891) 7 T.L.R. 556. We think therefore that the judge should not have given leave to the respondents to sign immediate judgment either for the amount admitted, or disputed. And inasmuch as he granted such leave, we think he was in error.

It was also contended for the appellants that the affidavits on which the judge relied to give judgment for the respondents did not comply with the requirements of Order 14, r. I inasmuch as those affidavits were sworn to by a solicitor who had no personal knowledge of the facts and can only have deposed to his information and belief.

We think there is some force in this contention. Order 14, r. 1 requires that the affidavit to found jurisdiction for entry of summary judgment, must be sworn to either by the plaintiff “or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed.” The first affidavit sworn to by Mr. Heward-Mills in support of the application for leave to sign final judgment was dated 4 September 1969. It is extremely sketchy and said no more than that the debt was owing and the deponent’s belief “that there is no defence to this action.” It was met by a fairly detailed affidavit sworn to by the managing director of the appellants in which a lot of factual information grounding the large counterclaim was proffered. To counter this, Mr. Heward-Mills put in a twenty paragraph affidavit in which he related the circumstances that gave rise to the action and its breach and also controverted the facts on which the counterclaim was based. It is manifest that Mr. Heward-Mills who was only acting as solicitor to the respondent, did not have any personal knowledge of the facts. He could only have come by it through information imparted to him by his clients. He was therefore in no position to swear positively to the facts. Although there can be no doubt that Mr. Heward-Mills believed in good faith the facts imparted to him by the respondents, yet the affidavit to which he deposed was not the one contemplated by and specifically required by Order 14, r. 1. We think therefore that there was no jurisdiction to invoke the summary procedure laid down by Order 14, r. 1 in the respondents’ favour: see Symon & Co. v. Palmer’s Stores (1903) Ltd. [1912] 1 K.B. 259, C.A.

Accordingly, in our judgment, the appellant company are entitled to succeed on this ground also. We think therefore that the order granting leave to the respondents to sign judgment both for the amount admitted and for the one disputed should be set aside with costs here and below.

DECISION

Appeal allowed with costs.

S. O.