WATALAH vs. GHANA PRIMEWOOD PRODUCTS LTD. [1973] 2 GLR 126

CASES REFERRED TO

(1) Ojikutu v. Odeh (1954) 14 W.A.C.A. 640.

(2) Agyeman v. Ghana Railway and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60.

(3) Practice Direction (Estimated Length of Trial) [1959] 1 W.L.R. 258; [1959] 1 All E.R. 576.

(4) Collins v. The Vestry of Paddington (1880) 5 Q.B.D. 368; 49 L.J.Q.B. 264; 42 L.T. 573; 28 W.R.

588, C.A.

NATURE OF PROCEEDINGS

APPLICATION by the defendants to set aside as a default judgment, a judgment which was entered in the absence of the defendants’ counsel but in which the defendants were represented. The facts are fully stated in the ruling.

COUNSEL

A. Forson for the plaintiff.

E. D. Kom for the defendants.

JUDGMENT OF CHARLES CRABBE J.

The plaintiff sued the defendants for “general damages for injuries he sustained whilst at work on 5 April 1971 through the negligence of the defendant company.” When the case was called on 8 February 1973 for hearing, the plaintiff as well as his counsel were present. Counsel for the defendants though he had been served on 1 February 1973 was not in court.

A representative of the defendants who gave his name as Isaac Essandoh was present. He said he had a message for the court. He was informed that the judge did not take messages on the bench. When allowed to explain he said that the message he intended for the court was that “the company had engaged a lawyer who says we must come to court.” Asked why the lawyer had so informed the company, Mr. Essandoh could not say.

Counsel for the plaintiff called the plaintiff into the witness-box who gave evidence on oath. When Mr. Essandoh was asked if he had any questions to ask the plaintiff he said he had none. When asked to go on with the case for the defendants after the plaintiff had closed his case, Mr. Essandoh said he had nothing to say.

There was nothing on the docket to indicate that counsel for the defendants had indicated his inability to be present. In the absence of evidence to contradict the evidence of the plaintiff, the court gave judgment against the defendants, as follows:

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“There is no evidence to contradict what has been said by the plaintiff. In the circumstances I will give judgment in his favour against the defendants. He is 33 years old earning, he says, a total of about ¢45 a month. Looking at him he has really been injured. The doctor says he is 50 per cent. permanently injured, that is, his incapacity; and a permanent disfigurement of twenty per cent. I will award the plaintiff ¢20,000 damages against the defendants. I award costs of ¢1,500 against the defendants.”

It is in respect of this judgment that counsel for the defendants filed a motion on notice to have the judgment set aside. In his affidavit supporting the motion he deposed as follows:

“(1) That I am the solicitor retained by the defendants herein to prosecute the suit on their behalf.

(2) That in attempt to settle the claim out of court I asked for the medical report of the plaintiff.

(3) This counsel for the plaintiff sent to my junior S. K. Tetteh, Esquire.

(4) That after I had had sight of the report I instructed my chief clerk to telephone Mr. Forson on the offer I made.

(5) That I was told by my chief clerk that Mr. Forson rejected the offer and that he did not indicate what amount be acceptable to his client.

(6) That since the matter was being settled, I thought this would be brought to the notice of the court and this explains my absence from court when the case came up for hearing.

(7) That my absence was not meant to be disrespect to the court.

(8) That since the settlement was being conducted without admission of liability and since the defendants deny liability the defendants would like the case to be fought on its merits.

(9) That in the circumstances I swear to this affidavit praying for an order that the judgment for

¢20,000.00 and ¢1,500.00 costs be set aside and the suit be heard on its merits.”

To this affidavit counsel for the plaintiff also deposed as follows:

“(1) That I am the solicitor for the plaintiff in the suit herein.

(2) That it is not correct that Mr. Enoch Kom of Accra has ever asked me for the medical report of the plaintiff.

(3) That on 22 January 1973, Mr. Tetteh junior to Mr. Enoch Kom telephoned to me and suggested that he would want to settle this matter out of court.

(4) That I told Mr. Tetteh that the case was to be heard the next day but I would oblige him and ask for an adjournment to enable us try to settle the matter.

(5) That I told Mr. Tetteh that I was obliging him that time and that if by 8 February 1973, no settlement had been reached, the plaintiff will lead evidence to prove his claim.

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(6) That Mr. Tetteh asked me for a figure and I quoted him one, whereupon he said in order that he could also make a meaningful counter offer, I should let him have a copy of the medical report on the plaintiff.

(7) That I sent my clerk to Accra the next day, i.e. 23 January 1973 with a duplicate of the original report on the plaintiff to Mr. Tetteh.

(8) That at about 5.00 p.m. on 23 January 1973, I spoke to Mr. Tetteh, who confirmed that he had received the report and that he was communicating my figure to his principals, and would later advise me.

(9) That I heard nothing from Mr. Tetteh nor Mr. Kom until about 4 p.m. on 7 February 1973 when a Mr.

Agbo of the Northern Assurance Company, Takoradi, rang to tell me that Mr. Kom had asked him to tell me to send a copy of the medical report on the plaintiff to him.

(10) That I told the said Mr. Agbo of all that is contained in paragraphs (3) to (8) supra and asked him to inform Mr. Kom accordingly.

(11) That at about 5.30 p.m. on 7 February 1973 a clerk in Mr. Kom’s office spoke to me and suggested a figure which I rejected outright.

(12) That I reiterated to the said clerk the figure I had mentioned to Mr. Tetteh and added that the plaintiff would lead evidence in proof of his claim the next day as settlement had failed and that he should advise Mr. Kom.

(13) That I am aware that Mr. Kom had this message because he told Mr. Akrasi of my office on the

telephone that he had been told I was going to lead evidence in this suit on 8 February.

(14) That in the premises I pray that the application be dismissed with costs as it has no merit at all.”

In arguing the motion, counsel for the defendants referred to rule 18 of Order 36 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), that the basis for the application was that counsel for the defendants was trying to negotiate the claim out of court with counsel for the plaintiff. Counsel for the defendants relied on the normal tradition of the profession for counsel on the other side to inform the court of the steps to negotiate. He referred to the affidavit in opposition to the motion which disclosed “that there were moves to negotiate” and said that “as officers of the court, we must try to get cases settled.”

It did not appear to him at that time that negotiations had broken down. “If I have foolishly relied on these traditions, I apologise,” he declared citing Ojikutu v. Odeh (1954) 14 W.A.C.A. 640. He added: “If I have blundered by assuming that the matter should be adjourned

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for further offers to be made, it is my submission that such blunder should not be visited upon the defendants and that the matter should be heard upon its merits and judgment given.”

He submitted that the defence had been filed and liability had been denied. The summons for directions disclose a triable issue. And relying on Agyeman v. Ghana Railway and Ports Authority, Takoradi, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 60 he asked for the exercise of the judge’s discretion for the case to be heard on its merits.

Counsel for the plaintiff stated that counsel for the defendants relied on rule 18 of Order 36 of L.N. 140A to have the judgment obtained set aside. The defendants were represented and therefore this was not a case in which an ex parte judgment had been obtained. The defendants’ representative was told to ask questions and he said he had no questions to ask. After that the plaintiff closed his case. The representative of the defendants was asked whether he had any evidence to offer and he said he had no evidence to offer. Therefore, he argued that there is no basis in law for the application before the court. He submitted that the application was, “clearly misconceived. There is no blunder in this case. Proceedings had closed; both parties were in court.

Evidence was led and no evidence was forthcoming from the defendants. It is my humble submission that failure by counsel to attend court is not a blunder. Agyeman v. Ghana Railway and Ports Authority, Takoradi (supra) does not apply in this case, because in that case the Court of Appeal was being asked to set aside an ex parte judgment.”

He referred to the affidavit in opposition and continued: “Defendants’ counsel knew that the plaintiff was going to lead evidence on that day. At that stage there were no further attempts at settlement.” He submitted that the facts relied upon by the defendants “to have the judgment set aside should not be countenanced at all,” and that the application not being one for a review the motion should be dismissed. The writ in this case was filed on 15 August 1972. The defendants entered appearance by counsel on 31 August 1972. On 2 November 1972, counsel for the plaintiff wrote to counsel for the defendants in the following terms:

“Ali Watalah v. Ghana Primewood Ltd.

(Suit No. CS. 137/72)

We would want to draw your attention to the fact that the time for filing your defence to this action has run out.

We do not, however, intend moving the court immediately for judgment and we would ask you to file your defence now for pleadings to take its normal course.”

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On 15 November 1972, the statement of defence was filed. Summons for directions and the reply were filed on 18 November 1972. Then counsel for the plaintiff wrote to counsel for the defendants as follows:

“Dear Sir, Ali Watalah v. Ghana Primewood Products Ltd.

Summons for directions were taken this morning by the court and the case was put down for hearing on 23 January 1973. Please keep the date open accordingly.”

On 24 January 1973, counsel for the plaintiff wrote to counsel for the defendants as follows:

“Dear Sir, Ali Watalah v. Ghana Primewood Products Ltd.

As discussed on the telephone with Mr. Tetteh of your office on 22 January 1973 this suit was adjourned to 8 February 1973 for hearing, at the instance of the defendants.

Please take note.”

On 8 February 1973, the case was heard. So, apart from hearing notices which were all served on counsel for the defendants, counsel for the plaintiff had taken the course of informing his professional colleague of the progress of the action before the court. I am unable to trace from the docket of the case replies from counsel for the defendants to these letters.

I have taken the trouble to set out in extenso the affidavits in this application and to refer to correspondence in the docket as a result of the accusations of professional impropriety which have been raised in this case.

I must say that the letters quoted speak well of counsel for the plaintiff. He had taken a course of action which put his professional colleague “in the picture” all the time. That to me is commendable conduct. It underlines the role of counsel in such cases that, as an officer of the court, his prime interest, his motivating aim, is that justice is done not only to his client but to all concerned.

In Practice Direction (Estimated Length of Trial) [1959] 1 W.L.R. 258 Lord Parker C.J. had this to say:

“The Fixed List is for the convenience of parties, solicitors and counsel. It is quite impossible to work it unless the Clerk of the Lists is given full and accurate information from day to day as to the course of a case – whether there are negotiations for settlement, whether an issue has been withdrawn, whether medical reports have been agreed, and what is the probable length of the case.

The only course, if we are going to work these lists, is that it should be the joint responsibility of counsel and their clerks and [p.132] of [1973] 2 GLR 126

solicitors to tell the Clerk of the Lists, as from the moment the case comes into the Warned List on Thursday of each week, exactly what the latest estimate of the length of the trial is. Of course, if there is any alteration in the position between the date when the case comes into the Warned List and the fixing of the Daily Cause List, that duty continues up to the last moment. Only in that way can these lists be worked. It is for counsel to see that their clerks know the position.”

We do not have Fixed Lists and Warned Lists, unfortunately, in this country. But the responsibility of counsel in such matters cannot be lightly over-looked. I cannot say more than this.

I do not think it is correct for counsel for the plaintiff to depose that counsel for the defendants “. . . has ever asked me for the medical report of the plaintiff.” What was deposed to was, “That in an attempt to settle the claim out of court I asked for the medical report of the plaintiff.” And he did add, “This counsel for the plaintiff sent to my junior S. K. Tetteh, Esquire.” This is confirmed by paragraphs (6) and (7) of the affidavit of counsel for the plaintiff.

If the facts deposed to in paragraphs (12) and (13) of the affidavit of counsel for the plaintiff are true, then one would hesitate to accept the plea of counsel for the defendants contained in paragraph (6) of his affidavit. For the representative of the defendants when the case was being heard on 8 February 1973, also told the court that “the company has engaged a lawyer who says we must come to court.” And throughout his argument in court, counsel for the defendants did not say that he did not receive the hearing notice nor that he was not aware that the case was for hearing on 8 February 1973.

In view of the unpleasantness that developed in the heat of argument in this case with charges of conduct unethical by the standards of the profession, it is well to observe that counsel in appearing before these courts play a vital role in the administration of justice. That requires them to maintain respect for the administration of justice. It is their duty fearlessly to defend the interests of their clients. But in so doing, I submit, that they should not allow personal feelings to affect their duty as advocates. It is their duty to treat with courtesy and respect the court, opposing counsel as well as witnesses. In no circumstances should they exchange personalities with opposing counsel; and they should at all time address their remarks to the court. This is not often the case in these courts.

If counsel for the defendants had responded to the call of his professional obligations and had come to court if only because the case had not been settled “since” according to him “the matter was being settled” perhaps matters would have taken a different course. He knew the case was coming on for hearing on 8 February 1973.

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He told the defendant company whose interests he was representing before this court that they “must come to court.” But he did not come to court. He thought that the fact of the negotiations for settlement would be brought to the notice of the court and that “explains [his] absence from court when the case came up for hearing.” Who was to inform the court that negotiations for settlement were going on?

If counsel on other side also thought that his learned friend would come to court and explain that negotiations for settlement were going on, and therefore does not appear, which counsel would appear before the court to inform the court of the negotiations for settlement? But, as Mr. Grimes (Brothers-in-Law) would say, “But there you are, my dear fellow, they will do these things, they will do these things!” In Collins v. The Vestry of Paddington (1880) 5 Q.B.D. 368, Thesiger L.J. said at p. 381 that:

“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”

It was on the basis of this statement that the West African Court of Appeal in Ojikutu v. Odeh (supra) allowed the appeal and remitted the case with directions. In the Ojikutu case the defendant was required to put in his notice of intention to defend and the relevant affidavits in five days. His solicitor did so in two days. At the hearing the solicitor for the defendant admitted his fault in not reading the relevant rule and asked for time. The plaintiff’s solicitor asked for judgment. The trial judge refused to consider the plea for time of the solicitor for the defendant observing, as quoted at p. 641, “I would emphasise the necessity for observing strictly the provisions of the rules” He then gave judgment for the plaintiff.

In his judgment on appeal Forster-Sutton P. had this to say at p. 641:

“I entirely agree with the learned trial Judge as to the necessity for observing strictly the provisions of the rules, but in this case the neglect to do so was explained to the Court¼ and I am of the opinion that, in the circumstances here, the trial Judge ought to have given the defendant permission to file an affidavit explaining the neglect.”

In the Agyeman case (supra), the matter revolved round the failure of the solicitor concerned to enter appearance within the time limited by the rules. Judgment was given by default. The relevant affidavits as called for by the Ojikutu case (supra) were filed. And the judge granted the application to set aside the judgment obtained by default of appearance. The defence was filed and yet there was an appeal against the grant of the application to set aside the default judgment. The appeal was dismissed.

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In the instant case, the question of an extension of time does not arise. The relevant pleadings had been completed, and summons for directions taken. On 8 December 1972, when the summons for directions were taken, counsel for the defendants though served, did not appear in court to represent the interests of his clients. Counsel for the plaintiff indicated to the court that his learned friend had informed him that he agreed to the issues as filed.

Those issues were:

“(a) Whether or not the plaintiff was a trespasser to the part of the factory where he sustained injury;

(b) Whether or not the plaintiff sustained the injury through the negligence of the defendants and or their servant agent;

(c) Whether or not the plaintiff is entitled to the relief sought;

(d) Any other issues appearing from the pleadings.”

Counsel for the plaintiff then informed counsel for the defendants of the hearing date. In addition counsel for the defendants was served with the hearing notice. On 23 January 1973, when the case came on for hearing counsel for the defendants was not in court though he had been served. The case was adjourned to 8 February 1973. Hearing notice was served on counsel for the defendants. Counsel for the plaintiff also wrote to counsel for the defendants. On 8 February 1973, counsel for the defendants did not appear.

But a representative for the defendants appeared to represent the interests of the defendant company. Evidence was led. The representative of the defendant company was called upon. He said he had no questions to ask the plaintiff. After the close of the case for the plaintiff the representative of the defendant company was called upon. But he had nothing to say. Indeed, this representative did say to the court, “the company had engaged a lawyer who says we must come to court.”

Where then is blunder in this case? Counsel for the defendants contended that he was relying on the fact that negotiations were going on and he had thought that that state of affairs would be brought to the notice of the court. If this is true, why is it that the representative of the defendant company did not inform the court of those steps? Why is it that counsel, when he told the company to go to court, did not also ask them to bring to the notice of the court the moves towards a settlement of the case out of court?

It seems to me that matters had progressed beyond the point where one could talk in terms of a blunder. Why is it that counsel for the defendants depended so much on his clerk and his junior when the responsibility for dealing with the case rests squarely upon his shoulders, and never once directly deal with counsel for the plaintiff? His own affidavit shows that he never dealt directly with his professional colleague, not once. And he did not appear in court with a junior either! So between whom were the negotiations for settlement being conducted?

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The facts in this case show, in my view, that counsel for the defendants has been guilty of conduct so gross as to damage the interests of his client and to bring discredit on the profession. And if other interests prevented him from taking that diligent interest required of him, then he has allowed those other interests to interfere with and prejudice the interests of his clients. Such conduct is equally against the ethics of the profession.

The affidavits sworn to by both counsel engaged in this case speak for themselves. But it is important to reiterate what counsel for the plaintiff deposed to in paragraphs (12) and (13)of his affidavit:

“(12) that the plaintiff would lead evidence in proof of his claim the next day as settlement had failed and that he should advise Mr. Kom.

(13) That I am aware that Mr. Kom had this message because he told Mr. Akrasi of my office on the telephone that he had been told I was going to lead evidence in this suit on 8 February 1973.”

If this is true, and it was not challenged during argument in court, the pity it is that counsel could inform the court that it did not appear to him that negotiations had broken down! When he knew that evidence was going to be led on 8 February 1973, it is, to say the least, an attempt to mislead the court, for counsel to say from the Bar that it did not appear to him that negotiations had broken down. And can he really say that he has foolishly relied on the traditions of the profession? I wonder!

In the Agyeman case (supra) the Court of Appeal had this to say:

In conclusion, we would like to comment briefly on the conduct of the state attorney who represented the respondents. His conduct was on the whole far from commendable. His frequent absence from court (except probably on one occasion when there appeared to be some excuse for his absence) on days fixed by himself for the hearing of his applications did not show such respect for the court or much concern for his clients’ interests, and we think there is some substance in the judge’s remark that he was ‘toying with the court.’

We would like to make the point that lawyers engaged in the public service and who are called upon to represent public institutions in law-suits have the responsibility to ensure that public funds are not improperly expended through their default, and that they must exhibit the same degree of diligence as is required of a private practitioner. There cannot be one standard of professional conduct for the lawyer in the public service and another for the lawyer in private practice.”

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It is a proverb of large equity which declares that what is “sauce for the goose is sauce for the gander.” I must say that the conduct of counsel for the defendants in this case falls far below that degree of diligence required of him in the discharge of his responsibilities to this court, to his clients, to the administration of justice as referred to by the Court of Appeal.

But granted all that, what is there in this case upon which to base the exercise of the judge’s discretion in order to set aside the judgment obtained by the plaintiff? This is not a case in which judgment had been obtained by default of appearance, or by failure to file the relevant pleadings within the time allowed by the relevant rules. This is not an interlocutory proceeding as in the Ojikutu case (supra). This is not a case in which a judgment has been obtained “where one party does not appear.” This is a case in which evidence has been led. This is a case in which a representative of the defendants had appeared in court. This is a case in which that representative was given all the opportunity that a party to an action is given. What could one do further in the interests of justice, in the circumstances of this case?

The plaintiff gave evidence to show that he was at work, and in crossing from one side of the factory to another one of a quantity of logs in the factory fell from its position in the pile, rolled and fell on his left leg thus trapping him. The log almost entirely crushed his leg by its weight. His evidence was not challenged. And this court was bound to accept his evidence, which showed that the plaintiff was entitled to the reliefs he sought.

There has, therefore, in my view, been a trial of the issues on the merits of the case and I really find it difficult to accede to the motion for an order to set aside the judgment. It was not obtained by default. Nor is it a judgment obtained in the absence of one of the parties within the meaning of Order 36, r. 18 of L.N. 140A. I will therefore dismiss the application.

I award costs of ¢200.00 against the defendants.

DECISION

Application dismissed with costs.

S. E. K.