SADHWANI vs. AL-HASSAN [1999-2000] 1 GLR 19

CASES REFERRED TO

Wilson v Smith [1980] GLR 153, CA.

NATURE OF PROCEEEDINGS

APPEAL from the ruling of the trial judge dismissing the application by the plaintiff-appellant for summary judgment of an action for recovery of debt he had brought against the defendant- respondent. The facts are sufficiently stated in the judgment of Wood JA.

[p.21] of [1999-2000] 1 GLR 19

COUNSEL

Philip Addison for the plaintiff-appellant.

Kofi Kumado for the defendant-respondent.

JUDGMENT OF WOOD JA.

On 14 March 1997, the plaintiff-appellant (hereinafter referred to as the appellant) sued the defendant-respondent (hereinafter referred to as the respondent) for the sum of £8,995 said to represent the balance outstanding on money lent to her and interest thereon.

An application for summary judgment submitted after the respondent had duly filed a defence and counterclaim was dismissed by the learned trial judge on the ground that the respondent’s defence raises triable issues. Not being satisfied with this decision, the appellant appealed to us in this court on two grounds, the first being the original ground viz:

“The trial judge erred in law in dismissing the plaintiff’s application for summary judgment on the grounds that the defendant-respondent’s response raises triable issues when there was before the court, the defendant-respondent’s uncontroverted undertaking admitting the sum owed to the plaintiff-appellant, which error of law has occasioned the plaintiff appellant a substantial miscarriage of justice.”

Before dealing with the substantive grounds of appeal, I would like to address an important preliminary issue raised by the respondent’s counsel. Counsel contends, and rightly so in my view, that under rule 20(1) of the Court of Appeal Rules, 1997 (CI 19) the appellant had 21 days of being notified that the record was ready, within which to file a written submission of his case. The further argument is that since in the instant case, he filed his case not within the stipulated period but several weeks after the said notification, this appeal ought not to be entertained, as the same by operation of law, is deemed under rule 20(1) of CI 19 to have been struck out. On my part, the rather difficult question is, whether if this objection must be upheld, the appeal ought to be dismissed in limine and the appellant asked to take the necessary steps to have the said appeal restored and disposed of on the merits. I would not choose this option.

Although by the provision of rule 20(1) of CI 19, where an appellant breaches the rule, the appeal is without more considered or deemed to have been struck out, the same rule imposes a

[p.22] of [1999-2000] 1 GLR 19 mandatory duty, albeit an administrative duty, on the registrar to inform the parties accordingly of the state of the pending appeal. The importance of the registrar’s compliance with this rule cannot be overemphasised. I believe it is intended to instruct the parties of the state of the appeal, to enable each party pursue his or her rights as exists thereunder. So for example the errant “appellant” may quickly run to the court and pray for an extension of time within which to comply with the rules in question.

Again, although the respondent’s counsel does not so expressly state, the point raised is clearly in the nature of a preliminary objection. That being so, counsel is obliged under the rules of court, as provided for under rule 16 of CI 19 to give three clear days notice before the hearing of the objection. Additionally, he is also required to set out the grounds of objection as in the notice specified in Form 8 in Part 1 of the Schedule to CI 19. The rule is clearly so self-explanatory, I would reproduce it. It stipulates:

“(1) A respondent who intends to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice before the hearing of the preliminary objection, setting out the grounds of objection, and shall file the notice specified in Form 8 in Part I of the Schedule together with five copies of the appeal with the Registrar within the same time.”

Now, a respondent who fails to comply with rule 16(2) of CI 19 may be met with any one of these three consequences. In other words, the court has three options with the third giving the court a fairly wide choice of other orders to make. It states:

“(2) If the respondent fails to comply with this rule, the Court may refuse to entertain the objection or may adjourn the hearing at the cost of the respondent or may make such other order as it thinks fit.”

Failure to comply with the above rule may lead the court to: (1) refuse to entertain the objection, or (2) adjourn the hearing at the cost of the respondent, (and I think the purpose here is to enable the respondent comply with the rule); or (3) the court is at a discretion to make any such order(s) as it thinks the circumstances justify.

[p.23] of [1999-2000] 1 GLR 19

Given the peculiar facts of this case, namely (1) the parties were never notified as it is required under the rules that the appeal has been struck out; and (2) the respondents themselves failed to comply with the rules governing the taking of preliminary objections, I would, in order not to jeopardise the right of the parties and further delay the hearing of this appeal on the merits, refuse to entertain the objection. We will proceed to determine the appeal on the merits.

By the first ground of appeal, the appellant’s counsel criticises the learned trial judge for concluding that the pleadings disclose triable issues. He submitted that on a close examination, the pleadings, “when shorn of all the verbiage and red hearingssic(3)”, reveal no triable issues. He contends further that the learned trial judge fell into error because he took into consideration matters that were not pertinent to the crucial issue in this case, namely whether or not the respondent owed the sum claimed.

I find this criticism against the learned trial judge most unfortunate. In my view he deserves commendation, not condemnation for the conclusions that he reached. It is plain from the appellant’s counsel’s own submissions, in which he identified one important matter in controversy, that indeed the pleadings disclose triable issues and the learned trial judge was perfectly right in so concluding. Indeed, the very authority relied on by the appellant’s counsel reinforces the point that the respondent is entitled to defend this suit, for she has ably demonstrated that she has a bona fide defence to this action.

On the appellant’s own showing, his case rested on paragraphs (10) and (11) of his statement of claim, both of which are reproduced hereunder:

“(1) Immediately upon the plaintiff’s return from his trip abroad, he demanded payment of the money from the defendant who then wrote an undertaking dated 27 September 1996 setting out the dates she intended to make instalment payments to liquidate the debt of £19,595. As compensation for the considerable inconvenience she had caused the plaintiff, the defendant voluntarily undertook to pay the plaintiff a further sum of £2,000 making her total indebtedness to the plaintiff £21,595.

[p.24] of [1999-2000] 1 GLR 19

(11) As was her wont, the defendant did not abide by the undertaking of 27 September 1996, and to still sustain the confidence of the plaintiff, made a further written undertaking dated 11 October 1995 promising to make payment of the first instalment of £10,000 by 18 October 1996 and liquidate the entire debt by 31 October 1996.”

The respondent’s reaction to these allegations are contained in paragraphs (15) and (16) of her statement of defence, namely:

“(15) The defendant admits paragraph (10) of the statement of claim but says that this was at the request of the plaintiff to whose knowledge the contents of the undertaking, especially as relates to the amount of her indebtedness, did not represent the true situation between them.

(16) The defendant admits she wrote the second undertaking referred to in paragraph (11) of the statement of claim but says that as with the undertaking of 27 September 1996, this undertaking was also at the request and dictation of the plaintiff.”

(The emphasis is mine).

The essence of these two paragraphs is that these two undertakings, being at the request and dictation of the appellant, do not qualify as a voluntary acknowledgments of the debt. The further explanation contained in paragraph (19) of the affidavit in opposition which sets out the alleged purpose for the making of these undertaking was intended to buttress the claim that these undertakings were not voluntary. The paragraph (19) reads:

“(19) That the plaintiff-applicant dictated the terms of exhibit SS 4 and when I queried him he said he needed a statement in these terms to enable his suppliers ship his Xmas goods to him. He assured me that he would not use the statement for any other purpose.”

It therefore comes as a surprise that the appellant’s counsel who himself conceeds that these pleadings raise the rather crucial issue of the validity of these undertakings (which were annexed to the application for summary judgment as exhibits SS 4 and SS 5) would

[p.25] of [1999-2000] 1 GLR 19 argue that no triable issues have been raised and further that the appellant ought to have been allowed to sign final judgment.

Nevertheless, apart from this principal issue identified by the dissatisfied appellant himself, both the trial judge and the respondent’s counsel in his submission, justifiably (as it is borne out by the pleadings) identified two other critical factual issues. These are: (1) The issue of whether or not the respondent has paid an amount of £3,000 as per the international money order No 5502-0000-436-860 dated 5 May 1996 as contended by her and consequently therefore (2) what if any, is the quantum of the respondent’s indebtedness, for she contends she has fully satisfied the entire debt. These are all factual issues which in accordance with the rules of procedure must be tried by viva voce evidence and the parties or their respective witnesses or both, if any, subjected to cross-examination rather than as it seems to be the suggestion of the appellant’s counsel, through affidavit evidence, evidence which, it must be understood, was presented solely for the purpose of determining whether or not this is a case fit for summary judgment.

In my opinion, the approach advocated by the appellant’s counsel, namely that these issues be determined on the strength of the affidavits and so he does this by presenting arguments why their version ought to be preferred, stems from a misapprehension of what constitutes triable issues and also a trial judge’s duty in applications of this kind. I think that in such applications, ie applications to sign final judgment, what is required of a trial judge is that he or she examines the pleadings and determines whether there does exist a bone fide or a good defence, that is a defence known in law. In my view, any such bona fide or good defence or a defence known in law when raised would constitute a triable issue or an issue fit to be tried. It could be an issue of fact or law. But a judge is not empowered to test the success or otherwise, of the defence intended to be relied on; otherwise stated he is not to try the merits of the respective claims using the affidavit evidence on hand. Indeed, the affidavit evidence presented in an application for summary judgment is not intended to be used for the resolution of triable issues that may emanate from the pleadings. The court is not supposed to adopt a short cut procedure by examining the rival claims in the light of the affidavit and annexures and so determine which claim on the balance of probabilities succeeds. Such a procedure is palpably wrong and

[p.26] of [1999-2000] 1 GLR 19 ought not to be encouraged, for it undermines the very foundation of justice.

Local and English authorities—both case law and text writers confirm these views that I have expressed. I would refer to a few of those referred to by counsel on both sides. We find the following general principles stated in one of the older editions of the English Supreme Court Annual Practice known also the White Book, p.191 under the heading “leave to defend”:

“Leave to defend is besic(4) given unless it is clear that there is no real substantial question to be tried (Codd vrs Delap 1905, 92 LTHL) that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment Jones vrs: Stones 1984 AC 122 …

As a general principle where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has bonafide defence he ought to have leave to defend.”

(The emphasis is mine.)

Furthermore, at page 192 the learned authors writing under the heading “Question of Fact”, cite the following as instances in which leave to defend has been granted. “Uncertainty as to the amount actually due: Lynde v Waithman [1985] 2 QB 180, Pearson v Fane 5 TLR 323.” Again, Giles Francis Harwood in his well known book Odgers Principles and Practice in Civil Actions in the High Court of Justice (19th ed) at p 63 buttresses the points I have already made. He writes:

“The defendant is not bound to show a good defence on the merits. He must however satisfy that there is an issue or question which ought to be tried or that there ought for some reason to be trial of the claim (r 3). If therefore the defendant shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff ‘s claim he ought not to be debarred of all power to defend the demand made upon him … and leave to defend may be granted on such terms as may be thought just (Per Brett LJ in Ray v Baker [1897] 4 Ex D at page 283).”’

[p.27] of [1999-2000] 1 GLR 19

More importantly, in Wilson v Smith [1980] GLR 152 Anin JA (as he then was) states the principles which govern applications of this nature. True the application was brought under the old Order 14, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) whose wording is different from the new. But the substance remains unchanged and the same legal principles govern their respective applications. His stated position at 161 was that:

“While it is true that the rationale behind the summary procedure under Order 14 of L.N. 140A is to provide the plaintiff with a speedy mode of recovery of judgment . . . provided of course there is no arguable defence to the action nevertheless, the Order, was not intended as an engine for the suppression of the defendant.”

In his view, the defence filed “ought to be scrutinised for any triable issues.” It follows that once the defence is found to contain any such issues, the application ought to be turned down and the defendant asked to defend the action.

Finally, let me say that in granting leave, in this case unconditionally, the learned trial judge exercised a discretion. As an appellate court we are not to sit on appeal from his discretion to ours. We can only interfere with his decision if he failed to act judicially, in this case, if he did not act on the facts before him.

It is regrettable that the appellant’s counsel describes the respondent’s defence as mere “verbiage”, that is to say too many useless words. Not only are the remarks unsavoury, but also incorrect. On the contrary, the learned trial judge’s finding that the defence raises triable issues is supported by the record and it ought not to be disturbed. In the result the appeal on this ground fails.

The additional ground (1) reads:

“(1) The trial judge erred in not taking into consideration the inconsistencies in the affidavit of the defendant-respondent which made her defence a sham, which error has occasioned for the plaintiff-appellant a substantial miscarriage of justice.”

It is again plain from the arguments proffered by the appellant’s counsel that he expected the trial judge to determine the rival claims

[p.28] of [1999-2000] 1 GLR 19 on the strength of the affidavits before him. Indeed, at this rehearing he continued in the same vein, rasing queries, putting up strong arguments, reasons and by pointing out inconsistencies and conflicts which in his view ought to make the respondent’s story improbable and their version on the balance, the more probable. Little wonder in concluding his submission he states:

“Since this application is to be determined on affidavit evidence the trial judge should have preferred the evidence of the appellant which was concise, consistent and credible as against that of the respondent which was shifty, inconsistent, after thought and continued.”

(The emphasis is mine.)

It is interesting to note that both sides in their submissions presented arguments showing that some explanation is needed from the deponents of the respective affidavits. But does this stand taken by both sides not rather justify the conclusion that this is a case which ought to go to trial? The point which I have already made and which, at the risk of sounding repetitive I do not fear to repeat, is that the application for summary judgment is not intended to be the forum for determining triable issues or rival claims. How can the deponents offer explanations as they are entitled in law to do, and explain inconsistencies if they do not mount the witness box and be examined on oath?

In my view, the learned trial judge, having satisfied himself that there are triable issues was right in not proceeding to determine the issues by reference to seeming inconsistencies in the affidavits. He was right in asking the parties to submit themselves to trial, where through the process of examination the queries raised on both sides of the divide, may be effectively addressed. Indeed, it is after this process that the trial court would be in a position to determine who is consistent and who is not, who prevaricates or is shifty and who remains resolute and firm and who is or is not concise and consequently who is credible and who is not.

I find no merit in this ground of appeal also and the appeal based on it fails.

JUDGMENT OF BROBBEY JA. I also agree.

JUDGMENT OF ARYEETEY JA. I also agree.

DECISION Appeal dismissed.

LSNA

Endnotes

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