IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
SAMUEL NYAMEKYE - (Plaintiff)
THOMAS TWUM - (Defendant)
DATE: 31 ST JANUARY, 2018
SUIT NO: OCC 183/2015
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
KWADWO DEI-KWARTENG FOR THE DEFENDANT/APPLICANT
HUMPHREY OMABOE FOR THE PLAINTIFF/RESPONDENT
This is an application to set aside judgment in default of defence entered on 5th of July, 2016. The background facts giving rise to this application are as follows:
a) By writ of summons issued on 27th April, 2015 the Plaintiff commenced action against the Defendant/Applicant herein for the following reliefs:
b) Recovery of the sum of Five Hundred and twenty Five Thousand Nine Hundred and Sixty Cedis Fifteen Ghana pesewas( GH 525,960.15)
c) Interest on the said sum from May, 2014 till date of final payment Or
d) In the alternative a judicial sale of House Numbered Plot 60B Block D located at Fawoade Mamponteng in the Ashanti Region belonging to the Defendant.
After unsuccessful attempts at serving the Defendant personally with the writ of summons and statement of claim, the Plaintiff filed an application for an order for substituted service and same was granted on 18th May, 2015.
On the 10th of June, 2015 the Defendant/Applicant caused his lawyer to enter conditional appearance.
This was followed by a motion filed on 22nd June, 2015 to set aside the writ of summons and statement of claim as the defendant’s case was that he resides outside the jurisdiction and as such the substituted service was irregular. When the said motion came up for hearing on the 26th of June, 2015, the Plaintiff was present but his lawyer was absent. The writ of summons and statement of claim was set aside by the court.
Counsel for the Plaintiff/Respondent filed a motion on notice under Order 82 rule 2(2) to set aside the proceedings of 26th June, 2015 and the said motion was granted by the court. The court also granted leave to the Plaintiff to file an affidavit in opposition to the motion to set aside the writ of summons. The matter was adjourned to 7th December, 2015. When the case was called on the 7thof December, 2015 counsel for the defendant/applicant was absent and the court struck out the motion to set aside the writ of summons and statement of claim for want of prosecution. It is on record that learned counsel was served with hearing notice. On 4th February, 2016 the Plaintiff filed a motion on notice to enter judgment against the defendant in default of defence. The return date of the motion was 18th February, 2016. An attempt was made to serve the process on counsel for the defendant, Kwadwo Dei-Kwarteng but service proved futile, as counsel rejected the service with the explanation that he has withdrawn from the case.
It is on record that on 29/02/2016, subsequent to the attempted service, counsel for the Defendant, Kwadwo Dei-Kwarteng filed a notice of withdrawal of representation of the Defendant. Following an unsuccessful attempt to serve the defendant with the motion for judgment in default of appearance, the court granted an application for substituted service on 21st April, 2016. On 5th July, 2016 the application for judgment in default of defence was granted and final judgment was entered against the defendant. It was during the execution process that the Defendant/Applicant initiated a motion to set aside the final judgment in default of defence.
The grounds of the application were contained in the affidavit in support and supplementary affidavit in support filed on 2/02/2017 and 27/03/2017 respectively. The Respondent was opposed to the application and he demonstrated the grounds in the affidavit in opposition and supplementary affidavit in opposition filed on 15/02/2017 and 10/04/2017 respectively. Both parties also filed their statements of case as required by law on 28/04/2017 and 21/04/2017 respectively. In his statement of case, counsel for the Plaintiff/Respondent raised a preliminary legal issue which bordered on the competence of counsel for the Defendant/Applicant to represent the latter, as counsel is on record to have withdrawn from the case and had not filed any fresh notice of appointment. The court upheld the preliminary legal objection and struck out the motion as incompetent.
The Defendant/Applicant has subsequently filed a fresh application (the present application) to set aside the judgment in default of defence. The application was filed on the 15/06/2017 and the motion paper was backed by a supporting affidavit. The Plaintiff/Respondent also filed an affidavit in opposition on 10/07/2017. On the orders of the court both parties have also filed their respective statements of case. It must be noted that the applicant filed a supplementary affidavit on 4/08/2017. This supplementary affidavit was deposed by counsel for the applicant.
It must also be noted that the affidavit in support of the motion was deposed by one Kwabena Bonsie, a lawful attorney of the applicant.
The applicant is contending that the default judgment entered on 5/06/2016 is void, as it was procured without proper notice to him. It is the submission of counsel for the applicant that before the issuance of the writ of summons, the defendant/applicant resided and still resides outside the jurisdiction and so service of the writ as well as the subsequent service of the motion for judgment in default of defence by substituted service is void. He submitted further that since the judgment was entered without due consideration to the merits of the case, the court can set aside same and grant the defendant/applicant leave to file his defence. It is the case of the plaintiff/respondent that the default judgment was regularly procured as it was done in accordance with the rules of court. Counsel debunked the notion that the defendant resided out of the jurisdiction when the writ of summons and statement of claim were issued. He submitted that since the defendant could not be traced for service, substituted service was the only option available to plaintiff.
Counsel also submitted that granted that the judgment was regular the defendant/applicant has not acted timeously in a bid to set it aside to warrant a sympathetic consideration by the court. Counsel for the respondent also attacked the competence of counsel for the applicant to pursue this application. He cited section 8(1) of the Legal Profession Act, Act 32 and submitted that counsel cannot bring this application since he had no license to practice law during the legal year in reference (i.e. 2017), as indicated on the face of the processes filed. Before going into the merits of the application, I will first determine whether counsel for the applicant is competent to bring this application. It is provided under section 8 (1) of the Legal Profession Act, 1960, Act 32 as follows:
"A person, other than the Attorney-General, or an officer of Attorney-General’s department, shall not practice as a solicitor unless that person has in respect of that practice a valid annual solicitor’s license issued by the Council duly stamped and in the form set out in the Second Schedule."
It appears counsel for the Plaintiff/Respondents’ complaint was that counsel had not endorsed his annual solicitor’s license number and chambers registration number on the statement of case filed on behalf of his client. This came up when counsel responded to the motion. In the case of Henry Nuertey Korboe v Francis Amosa, Suit No. J4/56/2014, Supreme Court, Accra 21/04/2016, the Supreme Court, by a majority decision, affirmed its earlier ruling in Republic v High Court, Accra; Ex Parte Teriwajah and Henry Nuertey Korboe (REISS & CO GHANA LIMITED) (INTERESTED PARTY) Civil Motion No. J5/7/2013 which also bothered on section 8(1) of the Legal Profession Act 1960 (Act 32). By that majority decision, a solicitor who is not qualified to practice within a time frame is prohibited by section 8 of Act 32 to practice, and any process filed without a license should not be given any effect in law. To the extent that counsel for the defendant/applicant herein filed a supplementary affidavit to correct what he described as an administrative and clerical error in his failure to provide his license number as well as his chamber registration number, the application will not be struck out but would be considered on its merits. This is because counsel attached receipts as well as the official publication of the roll call of lawyers to demonstrate that he had a license to practice law at the time he filed the process. Having determined the competence of counsel to pursue this application, I will now determine the following issues which are central to the application:
Whether the Plaintiff/Respondent had notice of the fact that the defendant/Applicant resided outside the jurisdiction at the time the writ of summons and the subsequent processes were issued; and
Whether the judgment in default of defence was regular.
Service of hearing notice in relation to the pendency of a court action against a party is fundamental to the validity of the outcome of the said action. A person cannot be held liable by the court unless he had been given fair notice of the proceedings to enable him appear and put up a defence if he so wish. In R. v. Appeal Committee of London Quarter Sessions Ex parte Rossi  1 All ER 670 which was cited with approval by the Supreme Court of Ghana in Doris Naadu Nartey v Christian Kumi Civil Appeal No. J4/20/2006 (13th March, 2007), Lord Denning LJ (as he then was) articulated the above principle of law when he said at 674 that:
‘‘It is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of a tribunal so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully appraised of the proceedings before it makes any order against him.”
Proper service of a court process on a party establishes jurisdiction of the court over the party. There is no doubt that non-service leads to a breach of theaudi alteram partem rule i.e. the rules of natural justice. This breach is very fundamental, as it touches on the jurisdiction of the court. In view of this, Order 81 of CI 47 cannot be invoked to treat it as a mere irregularity. Thus, failure to notify a party per hearing notice will render any order or judgment of the court void ab initio and the affected party is at liberty to apply to the court to set aside the said order or judgment. In situations where personal service cannot be effected on a party the rules make provision for substituted service. Order 7 rule 6 of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides:
6. (1) If a document is required to be served personally on any person and it appears to the Court
(a) that three or more attempts have been made without success to effect personal service, and that any further attempt to effect personal service may result in undue delay; or (b) that it is otherwise impracticable for any reason to serve the document personally, the Court may make an order for substituted service of that document.
(2) An application for an order for substituted service shall be made ex-parte and shall be supported by an affidavit stating the facts on which the application is founded.
(3) Substituted service of a document in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served …
In Barclays Bank of Ghana Ltd. v. Ghana Cable Co. Ltd. [1998-99] SCGLR 1 Acquah JSC (as he then was) in discussing non-service of a writ of summons on a defendant said at page 6 that:
“When personal service proves unsuccessful, substituted service may be resorted to, and unless a defendant has been served, no process can be initiated to obtain judgment against him. For until such service, the court is not seised with jurisdiction to proceed against the unserved defendant.”
Order 8 of CI 47 also makes provision for service out of the jurisdiction. It requires that a party who intends to proceed against another party who is outside the jurisdiction is expected to first obtain leave of the court before issuing the writ or other processes. In Bawa v Oye Goke (1977) GLR 413, the court held that:
“Where a writ was issued in the ordinary form for service within the jurisdiction against a party who before the issue of the writ had left the country and had since remained out of the jurisdiction and it did not appear that the Defendant had gone out of the jurisdiction to evade service of the writ an order for substituted service could not be made because where a writ could not be served on a person directly it could not be served indirectly by means of substituted service.”
This dictum applies to other processes which are intended to be served out of the jurisdiction. This is because the heading of Order 8 rule 1 states: “Notice of a writ or other processes may be served out of jurisdiction.”
Section 15 of the Interpretation Act, 2009 (Act 792) provides that titles placed at the head or beginning of a provision are not part of the law but have been provided for convenience of reference.
In the case of Antie and Adjuwuaah v. Ogbo (2005-2006) SCGLR 494, the Supreme Court held that:
“Under Section 4 of the Interpretation Act, 1960 (CA 4), headings to parts of statute do not form part of the statute; they are intended for convenience of reference only. However, unlike the traditional common law view no reference can be made to marginal notes and headings, under Ghana law, headings to statutes, particularly if consistent with the provisions to which they relate, serve as an aid to the construction of statutes. Therefore , the heading (“Particulars about Land”) to section 16 of the Stamp Act, 1965 (Act 311), serves as a signpost, announcing in unambiguous terms that they are limited to instruments affecting land transactions and therefore separate and distinct from Section 46 which deals exclusively with the receipt qua receipt.”
Section 15 of Act 792 is the same as section 4 of CA 4. Therefore, the heading to Order 8 rule 1 suggests that beside the writ of summons and statement of claim, service of any court process outside the jurisdiction must also comply with the provision by seeking leave of the court before same is effected. In the instant case, it is palpably clear from the affidavit in support of the motion on notice for “an order setting aside service of the writ of summons and statement of claim’’ that the plaintiff was given actual notice of the fact that defendant was out of the jurisdiction at the time the writ was issued. In paragraph 5 of the said affidavit, it was deposed as follows:
“That the plaintiff since the latter part of 2014 not being (sic) resident within the jurisdiction and attached hereto and marked as Exh TT is evidence of same.”
Exhibit TT is a page of the defendant’s passport which shows clearly per the Immigration stamp that he arrived at Heathrow Airport in London on 12September, 2014. Therefore, he was out of the jurisdiction when the writ was issued on 27 April, 2015. As stated early on, the motion to set aside the writ was subsequently struck out but the legal effect of the notice of the defendant’s absence from the jurisdiction cannot be whittled away. Consequently, service of any subsequent process ought to have complied with Order 8 of CI 47 which deals with service of processes outside the jurisdiction. The plaintiff, therefore, fell into an error when he applied for an order for substituted service to effect service of the “motion for judgment in default of defence” on the defendant. Clearly, the law was violated and as such the subsequent order of the court for substituted service was incurably bad. The order was null and void. All subsequent orders are also void. The result is that judgment in default of defence is a complete nullity and the same is void. Based on the foregoing reasons, the application succeeds. The judgment in default of defence entered on the 5th of June, 2016 is hereby set aside.
I also order the lawful attorney of the defendant/applicant to file the particulars of the defendant’s current address at the registry of the court within 7 days from today. A copy shall be served on the plaintiff.