COLLISON vs. TAGOE [1997-98] 1 GLR 76

CASES REFERRED TO

(1) Conca Engineering (Ghana) Ltd v Moses [1984-86] 2 GLR 319, CA.

(2) MacMillan v Australian Territories (1897) 76 LT 182.

(3) Webster v Vincent (1897) 77 LT 182.

(4) Young v Thomas [1892] 2 Ch 134.

(5) Republic v Agboka VI; Ex parte Dei II [1984-86] 1 GLR 581, CA.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff to the High Court, Accra for, inter alia, an order setting aside a default judgment for recovery of possession and declaration of title to a piece of land by the Circuit Court, Accra in a land dispute between the parties. The facts are sufficiently stated in the ruling.

COUNSEL

David Hesse for the plaintiff-applicant.

David Nii Aponsah for the defendant-respondent.

JUDGMENT OF AFREH JA.

On 24 January 1997 I granted an application for review of my judgment dated 29 November 1996, and asked counsel to submit written addresses.

The background to this case as stated in the plaintiff’s statement of claim is that on 22 June 1990 the defendant herein and [p.79] of [1997-98] 1 GLR 76 one Jacob Armah Mensah Tagoe (deceased) commenced legal proceedings against the plaintiff herein at the Circuit Court, Accra claiming: (i) declaration of title to a piece of land at East Kpehe, Accra; (ii) damages for trespass; (iii) recovery of possession; and (iv) perpetual injunction.

The plaintiff (then the defendant) entered appearance. There was apparently default of defence, because on 2 May 1991 the defendant herein (then the plaintiff) and Jacob Armah Mensah Tagoe filed a motion on notice under Order 27 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) praying the circuit court to enter judgment for them. When the motion came on for hearing, the plaintiff herein (then the defendant) and the defendant herein (then the plaintiff) were not present. The defendant herein was not called upon to give evidence. The court presided over by Mr B O Tetteh, nevertheless, entered final judgment for the defendant herein as prayed.

The present action was instituted in June 1994 for:

“(i) A declaration that the judgment of the Circuit Court, Accra presided over by his Honour Mr B O Tetteh dated 16 May 1991 is null and void.

(ii) An order setting aside the said judgment referred to in paragraph (1) above and all consequential orders made pursuant to the said judgment

(iii) General damages for unlawful execution and occupation of the plaintiff’s property.

(iv) Such further order or orders as this honourable court may deem just.”

After summons for directions had been taken, the plaintiff put down the following points for legal argument:

“(1) Whether or not in an action for declaration of title to land and recovery of possession, default judgment could be entered for the plaintiff without the plaintiff calling evidence to prove his case.

(2) Whether or not the default judgment obtained by the defendant dated 16 May 1991 and consequential orders are null and void.”

[p.80] of [1997-98] 1 GLR 76

Since the answer to the second point depends on the answer to the first point, I shall concentrate on the latter. It is clear from the written submissions of counsel for the plaintiff that his case is based on the decision of the Court of Appeal in Conca Engineering (Ghana) Ltd v Moses [1984-85] 2 GLR 319, CA. In that case, as in this, a plaintiff claimed both declaration of title to land and recovery of possession. The defendant failed to enter appearance and the plaintiff obtained a default judgment ex parte. In a subsequent suit instituted by a successor in title of the defendant, the other party successfully pleaded that he was estopped per rem judicatem by virtue of the ex parte default judgment against his predecessor in-title. On appeal, the Court of Appeal held that on the facts of the case, that judgment did not create an estoppel per rem judicatem. The court also held that the court below had no jurisdiction to give a judgment in default of appearance to the claim for a declaration of title under Order 13, r 8 of LN 140A.

The reasons for the court’s decision on this point are adequately summed up in the headnote, holding (4). The court held that:

“(4) Since ownership and possession were reliefs indorsed by the plaintiff on the writ and the trial judge gave him a global judgment, it stood to reason that the judgment had granted both the claim for ownership and possession. But the court had no power on an application for judgment in default of appearance under Order 13, r 8 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), to make more than an order for recovery of possession in the plaintiff’s favour. And since no express provision was made by the other rules of Order 13 where title as distinct from possession could be granted, the proper applicable rule was Order 13, r 12. Under that rule, if a party defaulted in entering appearance, the action might proceed as if such party had appeared. That was another way of stating that the case should take its normal course. And in our adversary system, the plaintiff who sought a declaration of title, had to establish that by clear and acceptable evidence whether or not the defendant against whom he sought the relief was

[p.81] of [1997-98] 1 GLR 76 present or absent. Since the plaintiff admittedly led no evidence of title in the 1968 suit, the circuit judge at that trial had no jurisdiction either under Order 13, r 8 or r 12 to adjudge title in the plaintiff’s favour. The default judgment would accordingly be set aside as void. It could not be a valid foundation for a plea of estoppel on an issue of ownership in the present action. Dictum of Verity CJ in Emegwara v Nwaimo (1953) 14 WACA 347 cited. Mosi v Bagyina [1963] 1 GLR 337, SC applied.”

I have cited the headnote in full because the decision of the Court of Appeal has often been cited in support of the proposition that in suits for declaration of title to land, a court cannot give judgment in default of appearance or defence without asking the plaintiff to give evidence in support of his claim. Counsel for the plaintiff, Mr David Hesse, cited it in support of the following contention in his written submission:

“In fact both Order 13 and Order 27 of LN 140A which deal with application for default in appearance and defence respectively, have no express provision dealing with title to land as distinct from recovery of possession. In this regard, we respectfully submit that if a party failed to file a defence in an action for declaration of title to land, then the procedure to adopt is for the plaintiff to proceed as if a defence had been filed to let the case take its normal cause. We refer your lordship to the Court of Appeal decision in Conca Engineering (Ghana) Ltd v Moses [1984-85] 2 GLR 319, CA . . .”

Counsel for the defendant, Mr David Nii Aponsah, on his part citing several authorities, sought to show that the decision of the Court of Appeal was wrong or per incuriam and should not be followed.

I think these opposing views compel me to try to determine the effect of that judgment and the relevant rules in Orders 13 and 27 of LN 140A. It is clear from Order 13 of LN 140A that where the defendant does not enter an appearance within the time stipulated in the writ, the plaintiff is entitled to judgment in defualt2(2)sic of appearance—except where the defendant is an infant or person

[p.82] of [1997-98] 1 GLR 76 of unsound mind (Order 13, r 1) or it is an action that should be dealt with under Order 13, r 12 (discussed more fully below), or where the plaintiff is a moneylender (Order 13, r 17).

The proper procedure to be adopted when the plaintiff desires to enter judgment in default of appearance depends upon the nature of his claim. Thus where the writ is endorsed for a liquidated demand, whether specially or otherwise, the plaintiff may enter final judgment for any sum not exceeding the sum indorsed on the writ together with interest at the rate specified or at the rate of five percent (if no rate is specified) to the date of judgment (Order 13, r 3). If there are a number of defendants and some appear and some do not, the plaintiff may enter judgment in default of appearance against those who do not appear and may proceed to go into execution against them without prejudice to his right to proceed with the action against those who have appeared (Order 13, r 4). If, however, the plaintiff’s claim is for detention of goods or pecuniary damages he can only get an interlocutory judgment since the value of the goods or damages have to be assessed (Order 13, r 5).

If the action is for recovery of land and the defendant does not appear within the stipulated time, the plaintiff may enter final judgment subject to the production of a solicitor’s certificate or affidavit, as the case may be, under Order 13, r 18 of LN 140A. Where the plaintiff has indorsed a claim for mesne profits, arrears of rent, double value or damages for breach of contract or wrong injury to the premises claimed, upon a writ for the recovery of land, he may enter judgment, as in Order 13, r 8 of LN 140A, for the land and may proceed as in the other preceding rules of the Order as to such other claims so indorsed (ie for final or interlocutory judgment as may be appropriate)—see Order 13, r 9 of LN 140A.

All these actions are specifically provided for by rules 3 to 9 of Order 13 of LN 140A. In all other actions not specifically covered by any of these rules, the appropriate rule is Order 13, r 12 of LN 140A which provides:

“12. In all actions not by the rules of this Order otherwise specifically provided for, in case the party served with the writ does not appear within the time limited for appearance, [p.83] of [1997-98] 1 GLR 76 upon the filing by the plaintiff of a proper affidavit of service, and if the writ is not specially indorsed under Order 3, rule 6, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15.”

Originally it was Order 15, but the provision was amended by LI 1129 of 1977.

This is the rule the Court of Appeal, rightly, said in the Conca Engineering case (supra) should be applied when the plaintiff desires to enter judgment in default of appearance to a claim for declaration of title to land. What is its effect? Does it require that the plaintiff must call evidence in proof of his claim? I shall let the authorities speak for themselves.

Bullen and Leake’s Precedents of Pleadings (11th ed 1959), p 13 tersely sums up the effect of (the old English) Order 13 (which in 1959 was almost identical with ours) thus:

“If the defendant does not enter an appearance to the writ, the plaintiff may obtain judgment under Order 13, but in cases that fall within Order 13 rule 12 the plaintiff must file an affidavit of service and a Statement of Claim (unless the Statement of Claim was specially indorsed on or accompanied the writ), and the action then proceeds as if the defendant had appeared.”

Kom, Civil Procedure (2nd ed) at pp 28-29 states on this issue:

“(vi) Other actions In all other actions not covered by the above unless the writ has been specially endorsed the plaintiff must file:

(a) affidavit of service of the writ; and (b) a statement of claim before he proceeds to enter judgment, Wa Management Committee v

Sidiki, CA 92/57, judgment of the Court of Appeal, 1 May 1958 (unreported)”

Odgers, Principles of Pleading and Practice In Civil Actions In the High Court of Justice (17th ed, 1957), at p 54 comments more

[p.84] of [1997-98] 1 GLR 76 fully on the rule:

“Where the action is of such a kind that originally (i.e. before the Judicature Acts) it could only be brought in the Court of Chancery (e.g. a claim for an injunction to restrain a nuisance or a breach of covenant), the procedure is different. The plaintiff is not at this stage allowed to enter any judgment, either final or interlocutory, although the defendant has not appeared. He must prepare a statement of claim (Order XIII, rule 12). But he does not deliver it to the defendant; he files it in the offices of the Court. If the defendant desires, he may still appear; he can find out in the filing Department what steps have been taken in the action, and if he enters an appearance, the action proceeds as though he had done so at the proper time. But if he does not appear he cannot deliver a defence, and the plaintiff after waiting fourteen days, can move the Court for judgment in default of defence. The statement of claim will stand admitted, and the plaintiff will obtain such judgment as he is entitled to on the assumption that every word contained therein is true (Order XXVII rule 11).”

I think what these authorities establish is that in actions falling within Order 13, r 12 of LN 140A a plaintiff cannot enter a judgment in default of appearance, that is on the basis of the indorsements on the writ alone. But if the writ is specially indorsed with the statement of claim, or is accompanied by a statement of claim or a statement of claim is later filed, he can obtain judgment in default of defence. Nowhere do the words of Order 13, r 12 of LN 140A or the authorities I have cited and others require that in addition to or beyond the filing of a statement of claim, he must adduce evidence, that is, go into the witness box to give evidence or call witnesses to testify or both. Admittedly, the language of Apaloo CJ who delivered the judgment of the Court of Appeal in Conca Engineering (Ghana) Ltd v Moses (supra) can be given that interpretation. But I do not think that is what he meant when he said the plaintiff must establish his title “by clear and acceptable evidence” and “succeed on the strength of his own case and not on the weakness of the

[p.85] of [1997-98] 1 GLR 76 defendant’s.” For averments in a statement of claim which are not traversed and are deemed to be admitted, can provide clear and acceptable evidence to establish a person’s claim. If on the face of the statement of claim all the ingredients of the claim are established, it can be said that the plaintiff has succeeded on the strength of his own case, if there is default of defence.

If however by those words the Court of Appeal meant to say the plaintiff must call evidence to prove his claim, then I must say with all respect and humility that it was said per incuriam because that statement cannot be supported by the words in Order 13, r 12 of LN 140A or the established authorities. In any case in my view the passage where the words quoted above appear was obiter dictum and while this court must treat it with the greatest respect, it does not have to follow it if it thinks it overstates the rule.

In Conca Engineering (Ghana) Ltd v Moses (supra) the Court of Appeal was only concerned with the effect Order 13, rr 8 and 12 of LN 140A. It did not discuss Order 27 of LN 140A. It is true that most of the provisions of the two orders are the same and are so regarded by Kom in his book, Civil Procedure (3rd ed), at p 43. But the procedure in cases not covered by specific rules differs in the two orders. In Order 27 of LN 140A actions not covered by specific rules must be brought under rule 11 which provides:

“11. In all other actions than those in the preceding rules of this order mentioned, and those to which Rule 19 of this order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court or a Judge shall consider the plaintiff to be entitled.”

It can be seen that this differs completely from Order 13, r 12 of LN 140A.

When discussing the effect of Order 13, r 12 of LN 140A, I touched on the significance of a statement of claim and said that where in an action falling within that rule a defendant is in default of appearance, the plaintiff can apply for judgment in default of defence without having to call evidence. Order 27, r 11 has the same effect. Odgers (16th ed) at p 228 states:

[p.86] of [1997-98] 1 GLR 76

“In all other cases he (the plaintiff) must move for judgment under Order XXVII rule 11. On such a motion, the Court will decide the rights of the parties by looking at the statement of claim and nothing else. No evidence is necessary. “

See also Bullen and Leake p 663. Odgers (21st ed) adds after “necessary”, the words “or, indeed admissible.”

The cases cited by these authorities are Macmillan v Australasian Territories (1897) 76 LT 182; Webster v Vincent (1897) 77 LT 182; and Young v Thomas [1892] 2 Ch 134. In the last case, Lindley LJ said at 136 of the report:

“. . . I am of opinion that the proper interpretation of Order XXVII, rule 11, is that so far as the rights of the plaintiff and the relief claimed in the action are concerned, the judge is to look to the statement of claim, and nothing else . . . “

And Bowen LJ at 137 said:

“In the present case there was no misapprehension of facts or discharged of principle, unless the Judge has no jurisdiction in giving judgment under Order XXVII, rule 11 to deprive the plaintiff of his costs. Unless his construction of this rule is wrong, there is no appeal from this decision . . . There is no doubt that, in determining the rights of the parties in action, the statement of claim alone is to be admitted by the defendants, and as has been decided by Lord Justice Key in Smith v Buchan (36 W.R. 631) no evidence can be admitted as to those facts.”

I think these authorities clearly established that in an action for judgment under Order 27, r 11 of LN 140A in default of defence even in a claim for declaration of title to land, it is not necessary for the plaintiff to call evidence to prove his claim. This is in consonance with the provision of Order 19, r 14 of LN 140A that:

“14. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by

[p.87] of [1997-98] 1 GLR 76 necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition.”

It would be contrary to this basic principle of pleading if a defendant who has failed to deliver a defence can later come to court to have the judgment against him set aside on the ground that it is a nullity because the plaintiff was not called upon to give evidence in support of his claim. By failing to deliver a defence, the defendant is deemed to have admitted the allegations of the plaintiff. And as was said by the Court of Appeal In Republic v Agboka VI; Ex parte Dei II [1984-86] 1 GLR 581 at p 585, CA it is an elementary principle that “where an adversary accepts a given state of affairs, his opponent is not called upon to prove it again.”

I think the answer to the first point for legal argument is that in an action for declaration of title to land and recovery of possession, judgment in default of appearance or defence can be entered for the plaintiff for the recovery of possession; and judgment in default of defence (but not in default of appearance) for the declaration of title.

The second question is whether or not the default judgment obtained by the defendant dated 16 May 1991 and all consequential orders are null and void. According to the evidence from the documents filed in this case, the motion for judgment was brought under Order 27, r 7 of LN 140A. This Order deals only with actions for recovery of possession. The judge therefore had jurisdiction to make the order for recovery of possession under that rule but not for declaration of title under it. The two claims are, however, severable. The order for recovery of possession was valid and should stand. It was not tainted or vitiated by the order for declaration of title which could only be made under Order 27, r 11 of LN 140A.

Does this mean the declaration of title made by the judge is null and void as the default judgment in Conca Engineering case (supra) was held to be? I think not. In that case the judgment was in default of appearance, which as I have said above, cannot be entered in an action for declaration of title. In this case the

[p.88] of [1997-98] 1 GLR 76 judgment was in default of defence. The judge, however, erred in making it under Order 27, r 7 instead of rule 11 of LN 140A. But he had jurisdiction under Order 27 of LN 140A to give the judgment in default of defence. Such an error which can easily be corrected by amendment should not vitiate the judgment. It was not a fundamental error. It was an irregularity, a non-compliance with a rule. Under Order 70, r 1 of LN 140A non-compliance with any of the rules of procedure, or with any rule of practice for the time being in force, should not render any proceedings void unless the court or a judge so directs. I am not prepared to give such a direction in this case or set aside the judgment wholly or in part.

The order for recovery of possession was right and valid. The plaintiff sat by for three years and allowed the defendant to go into execution; and he is now in possession. In these circumstances, it would be a wrong exercise of discretion to set aside or nullify the declaration of the title to the land in dispute.

In view of the answers I have given to the two points set down for legal argument, I do not think it is necessary to address the other matters raised in argument.

I confirm that the plaintiff’s action should be dismissed. And it is accordingly dismissed.

Costs of ¢350,000 will be awarded in favour of the defendant.

DECISION

Application dismissed.

LSNA

Endnotes

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