BRAMSCO FOOD MARKETING AND SUPPLY CO. vs. MOHAMADU [1973] 2 GLR 4

CASES REFERRED TO

(1) Brakowaah v. Awuakyewah [1961] 1 G.L.R. 64, S.C.

(2) Anglo-Guinea Produce Co., Ltd. v. Kwater (1933) D.C. ‘31-37, 34.

(3) Walllingford v. Mutual Society (1880) 5 App.Cas. 685; 50 L.J.Q.B. 49; 43 L.T. 258, H.L. (4) Jacobs v. Booth’s Distillery Co. (1901) 85 L.T. 262; 50 W.R. 49, H.L.

(5) Atlanta Timber Co. v. Victoria Timber Co., Ltd. [1962] 1 G.L.R. 221.

NATURE OF PROCEEDINGS

APPEAL against the ruling of a district court dismissing the defendants’ application to set aside a judgment on the ground that an application to relist the struck out action on which the judgment was based, should have been on notice and not ex parte. The facts are sufficiently set out in the ruling.

COUNSEL

J. E. C. Lutterodt for the appellants.

William Prempeh for the respondent.

JUDGMENT OF MENSA BOISON, J.

This is an appeal against the decision of Michael Adzovie, Esq., District Magistrate Grade I, sitting at Kumasi. By that decision dated 30 December 1969 he refused to set aside a judgment entered for the plaintiff for a claim of ¢592.00 in debt. The writ of summons was placed on the “undefended list” in accordance with the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 2, r. 9 (hereafter to be referred to simply as the Rules). Service of summons was eventually effected on the defendants by substituted service.

When the action came on for hearing on 18 November 1969 the parties were absent and the action was struck out for want of prosecution. On 5 December 1969 by a motion ex parte the plaintiff restored the case to the list; and at the same time moved for judgment, which was duly entered. The minutes of the court were as follows:

“By court: Application is granted. Let case be relisted. At this stage counsel moves court for judgment since case has been placed on the undefended list. Service has already been effected on defendants by substitution.

By court: I enter judgment for plaintiff in the sum of ¢592.00. I award ¢50.00 costs.”

The defendants’ subsequent application to have this judgment set aside and to be given leave to defend failed.

The first ground against the decision is that assuming the substituted service was right, still having struck out the action for want of prosecution on the hearing date, the application to relist ought to have been by notice. In reply counsel for the plaintiff has submitted that having served the writ by substituted service, to which the defendants had not filed a

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notice and affidavit to defend, it was correct to have applied for the relistment of the case ex parte. Counsel finds support, as he later communicated to the court after arguments, in Order 27, r. 8 of the Rules. I am unable to agree that this rule answers the point. The rule provides:

On a motion ex parte the party moving shall apply for either an immediate absolute order of the Court, in the terms of the motion paper, on his own showing and evidence, or an order on the party to appear on a certain day and show cause why an order should not be made in terms of the motion paper.”

I think this rule does no more than state the nature of the order to be obtained by an ex parte motion. There is nothing to show that an application to relist where service had been effected by substituted service should be ex parte .

It is fundamental to our sense of justice that a party cannot generally be proceeded against without notice of the action. This is in the first instance complied with by service of the writ of summons on the defendant. It has been held that a proceeding to judgment without service of the writ on the defendant renders the proceedings invalid and of no effect: see Brakowaah v. Awuakyewah [1961] 1 G.L.R. 164, S.C. It seems to me it is on the same principle that notice of steps in the proceeding is required by the defendant, unless there is a rule to the contrary.

By Order 2, r. 11 of the Rules a defendant may deliver a notice of intention to defend with affidavit of defence by the return day where a writ has been placed on the “undefended list.” If his affidavit shows grounds of defence to the plaintiff’s claim in toto or in part, the court shall give him leave to defend.

Rule 11 imposes a limitation of not less than five days before the day fixed for hearing to enter the notice and affidavit of defence. But neglect to comply with rule 11 is not fatal, because the defendant may still have the benefit of rule 14, which states:

“Where any defendant neglects to deliver the notice of defence and affidavit, as described by rule 11, within the time limited by the said rule, the Court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the Court may think just.”

When the action was struck out it was no longer pending. To relist it without notice was to have brought a new situation by resuscitated proceeding, without affording the defendants the opportunity to defend if they cared. In my view so long as rule 14 may still let in the defendants, it is not right to deny the defendants of that opportunity by the plaintiff proceeding ex parte as he did. That the writ of summons was effected by substituted service seems the more reason to bring the new situation to the notice of the defendants. The inconvenience of giving such notice by substituted service is beside the point.

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It now remains to consider the affidavit of defence supporting the application to set aside the judgment. Order 2, r. 11 of the Rules provides as follows:

“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence and stating whether the defence alleged goes to the whole or to part only and if so to what part of the plaintiff’s claim, then on the action coming on for hearing on the return-day, the Court after being satisfied by such affidavit, or by the defendant’s viva voce evidence, or otherwise, that the defendant has a good defence to the action on the merits or has disclosed such facts as may be deemed sufficient to entitle him to defend, shall let in the defendant to defend either conditionally or subject to such terms as to giving security or time or mode of trial or otherwise as the Court may think fit, and may order that the suit shall be entered in the general list for hearing.”

In the case of Anglo-Guinea Produce Co., Ltd. v. Kwater (1933) D.C. ‘31-’37, 34, Michelin Ag. C.J. in considering this rule concluded that it corresponded with Order 14, r. 1 of the English Rules of Supreme Court – which is identical with our Order 14, r. 1 of the Supreme [High] Court (civil Procedure) Rules, 1954 (L.N. 140A), and followed the cases decided under the English rule. I respectfully intend to adopt two of these cases he followed as I find them apposite.

In the case of Wallingford v. Mutual Society (1880) 5 App.Cas. 685, H.L. it was held by the House of Lords that where in a claim for payment of sums of money, the defence set up is that of denial and contradiction of the accounts on which the claim is founded, it was erroneous to make an order under Order 14, r. 1 refusing to a defendant the liberty to defend. Again in the case of Jacobs v. Booth’s Distillery Co. (1901) 85 L.T. 262, H.L. it was held by the House of Lords that when there is a triable issue, though it may appear that the defence is not likely to succeed, the defendant should not be shut out from laying his defence before the court either by having judgment entered against him or by being put under terms to pay money into court as a condition of obtaining leave to defend. (See also Atlanta Timber Co. v. Victoria Timber Co., Ltd. [1962] 1 G.L.R. 221.)

In the affidavit of defence in the present case the issue is raised in paragraph (11) that by reason of an agreement to reduce the price of yams supplied by 30 per cent and further deductions that the defendants were to raise against the accounts, the parties were yet to meet to settle the final account. In short the figure claimed is contradicted. That in my opinion raises a triable issue, and the failure to relist the case on notice therefore shut out the defendants from laying their defence before the court.

The judgment of the court below is set aside, and the case is remitted to the District Court Grade I for rehearing, when the defendants should

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be granted leave to defend. The cost of the first action in the court below and the cost of this appeal before this court to abide the result of the rehearing. Should the defendants be successful in reducing the sum claimed against them the costs in this court assessed at ¢30.00 to be awarded them. Should they fail then the plaintiff is to have the cost of this appeal assessed at ¢25.00. The court below to carry out.

DECISION

Appeal allowed.

S.E.K.