SOWAH, J.A.:

On 9^th April 2015, the plaintiffs-respondents [hereinafter referred to alternatively as ‘plaintiff's’ or ‘respondents'], filed a suit at the trial High Court on behalf of the Kwame Kuma family of Bla-Aveyime-Battor in the Volta Region in respect of family land compulsorily acquired by the Government in 1976. They sought the following reliefs:

i. Declaration that plaintiffs’ family is the only one entitled to be paid compensation for the land compulsorily acquired by government in 1976 as described in paragraph 7.

ii. An order directed at the defendant to pay compensation due to the plaintiffs’ family in respect of the entire land compulsorily acquired by government at current commercial valuation.

iii. An order directed at the defendant to release and pay all monies standing to the benefits of the plaintiffs’ family forthwith.

iv. An order directed at the defendant to release all portions of the compulsory acquisition which are not used for the purpose for which it was acquired to plaintiffs’ family.

v. Interest on such monies at current commercial bank rate from the date of the acquisition to date of judgment.

vi. General damages

vii. Cost.

The defendant-appellant [who hereafter will be referred to alternatively as ‘defendant’ or as the ‘appellant’] filed a statement of defence, averring that its inability to pay compensation was due to numerous claims to ownership of the acquired land.

The plaintiff's filed an application for summary judgment, exhibiting documents and a judgment purportedly proving their claim to ownership of all the acquired lands. Though no affidavit in opposition was filed, yet counsel for the defendant was heard when the motion was moved on 9^th July 2015. Defendants' counsel resisted the application, raising the issue of numerous claimants and prayed for an adjournment to provide the names of the claimants. As will be discussed later in this judgment, this request was ignored by the trial judge.

In the 14-page Ruling delivered on 31^st July 2015 which is the subject of this appeal, the trial judge concluded that the appellant had no defence to the action and granted Summary judgment in respect of reliefs 1, 2, 3, and 4. Reliefs 5 and 6 were not granted.

Dissatisfied, the defendant filed a Notice of appeal on 28^th August 2015 with the following grounds of appeal:

a. The judgment of the High Court is against the weight of the evidence.

b. That within the context of Section 4 of the State Lands Act, 1962, (Act 125) the High Court erred in law when it entered summary judgment against defendant/appellant

c. That the High Court erred when it assumed jurisdiction in a matter entirely within the ambit of the State Lands Act, 1962 (Act 125) without verifying the extent of plaintiffs/respondents claim before making the order for compensation.

d. That the summary judgment entered by the High Court was obtained by fraud, and same is defeated, to the extent that the Kwami Kuma Family (per Anum Norgbodzi) put up a claim for 11, 932.21 acres only of the entire acquisition of 24, 790.00 acres by the State.

e. That further grounds of appeal may be filed upon receipt of the records of proceedings.

Notice of Additional Grounds of Appeal was filed on 7^th March 2017 pursuant to leave granted on 1^st

March 2017. The additional grounds are:

a. The trial High Court misdirected itself when it concluded that the defence filed by the defendant/appellant disclosed no triable issues.

b. The trial High Court erred in the sense that it proceeded to determine the matter against defendant/appellant when by law its jurisdiction had not been invoked.

c. The claim of the plaintiffs was not clear enough to have proceeded summarily.

d. The High Court erred in law when it concluded that defendant/appellant was properly sued in a claim for compensation against the State.

From the record of appeal, and from the language of the grounds of appeal, the fundamental issue that stands out for resolution in this appeal is whether on the facts and the affidavit evidence, the trial judge misdirected himself when he concluded that the defence disclosed no triable issues and sentered summary judgment against the defendant. This issue encompasses the omnibus issue 1 as well as the issues numbered 2 and 4 and additional issues (a) and (c). I therefore propose to consider all these issues together, and in the process rehear the matter on appeal as I am enjoined to do by Rule 8(1) of the Court of Appeal Rules C.I. 19.

The objective of Order 14 is to facilitate the early conclusion of actions where it is clear from the pleadings that the defendant therein has no cogent defence. It is intended to ‘prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.” (See Halsbury’s Laws of England, Fourth Edition, 516). At page 519 of Halsbury’s (supra), a defendant is entitled to unconditional leave:—

“… in all cases where he shows that he has a genuine defence, or adduces facts which may constitute a plausible defence, or shows that there is some substantial question of fact or law to be tried or investigated.” [my emphasis]

Rule 1 of Order 14 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides:

‘Application for summary judgment

1. Where in an action a defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the Court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed

It is also provided by Rules 3(1)(2) and 5(1) of C.I. 47 as follows:

‘Defendant may show cause

3. (1) A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.

2) Where the defendant proceeds to show cause, the Court may order the defendant or in the case of a body corporate, any director, manager, secretary or similar officer of it, or any person purporting to act in such capacity to attend and be for the examined on oath or to produce any document if it. appears to the Court that special circumstances make this desirable.

5. (1) On the hearing of the application the Court may give such judgment for the plaintiff against the defendant on the relevant claim or part of a claim as may be just having regard to the nature of the remedy or relief sought, unless the defendant satisfies the Court, with respect to that claim or part of it, that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part of it;

In Sanunu vs. Salifu [2009] SCGLR at 586, the Supreme Court speaking through Baffoe-Bonnie JSC held that a defence set up need only show that there is a triable issue; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.

Again, in Ballast Nedam Ghana B.V vs. Horizon Marine Construction Ltd [2010] SCGLR 435, the Supreme Court held that the court may only grant an application for summary judgment in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried. The Court was of the view in that case, that a good defence to the action had been shown as required under rule 3(1) of Order 14. Furthermore, the defendant-respondent had also raised an issue which under rule 5(1)(a) of Order 14 comes under the description ‘there ought for some other reason to be a trial of that claim or part of it.’

In the present case on appeal, the defendant did not file an affidavit in opposition to the application but such failure does not bar a defendant from showing cause against the granting of the application. Afodofe v. Central Insurance Co. [1992] 2 GLR 207 applied. The trial court was therefore not in error when the appellants' counsel was permitted to make submissions during the hearing of the application. Moreover, since a statement of defence had already been filed, the trial court was obliged to look at the defence; whether it disclosed a triable issue.

What is important in this appeal is to ascertain from the Record whether on the totality of the pleadings and all matters before the High Court at the moment it delivered the Summary Judgement, the defendant had, demonstrably, any defence in law or on the available facts, such as would justify its being granted leave to defend the plaintiffs' claim.

At the time the Court decided to grant the application, it had on its record the Writ of Summons and the Statement of Claim, the affidavit in support of the plaintiffs' application with annexures and the Statement of Defence.

The plaintiffs had averred in the statement of claim especially in paragraph 7 thereof, that the family ‘own all that piece of land containing an approximate area of 24, 790.00 acres situate at Aveyime… more particularly delineated on plan No. LD 8802/59629 attached hereto… and also described in the E.I. 27’. The plaintiffs further pleaded at paragraph 8 as follows:

8. Plaintiff's say that after the publication of E.I. 27 in 1976 a number of people put in claims for compensation to be paid to them including the plaintiff's family’

The defendant in its statement of defence admitted that by E.I. 27 the State acquired the Aveyime land, but made no admission of paragraph 7 of the statement of claim. Paragraph 8 was admitted only to the extent that families put in claims for compensation. It was pleaded that in view of the ‘avalanche of claimants for compensation’; prompt payment of the compensation was frustrated as payment had to be deferred pending resolution of title to the land. This was the crux of the defence of the appellant, in addition to the argument that The Lands Commission was the wrong party to sue.

The question is whether this defence raised a contentious issue or question which ought to be tried or whether there ought for some other reason to be a trial of the claim or part of it.

E.I. 27 of 1976 which was exhibited to respondents' application at page 19 of the Record clearly states that the area acquired is an approximate area of 24,790.00 acres. There is thus no dispute about this essential fact.

It is also clear from the reliefs claimed by the plaintiff's and reproduced above that they wanted ‘compensation … in respect of the entire land compulsorily acquired by government. In other words, they were laying claim to the entire 24,790 acres.

The plaintiffs had averred at paragraph 10 of the statement of claim that; ‘by a number of judgments plaintiff's family has been declared as owners in possession of the both the boundary lands and features of compulsory acquisition and the larger parcel of land.’ The pleadings continued with a narration of some of the documents the plaintiff's relied on to support their claim to title ownership. Attached to the supporting affidavit among other exhibits were exhibit VD which is the executive Instrument E.I. 27 which compulsorily acquired the land and VD1, a 1957 judgment of the Native Court ‘B’ of Upper Tongu purportedly declaring title of ownership of a larger parcel of land inclusive of the acquired land in respondents’ family.

Apart from the admission in the statement of defence that there was ‘an avalanche of claimants for compensation’ the defendant denied all the other allegations of fact. Thus, defence counsel’s opposition to the application for summary judgment on the ground that there are numerous claims was not a fresh issue. More importantly, when crucial facts are traversed, the rules of evidence require the claimant to prove the assertions on a balance of probabilities. The plaintiff's claim to sole ownership of all the acquired land is certainly a contentious issue. There would be the need to prove with certainty the area claimed by the plaintiff's especially in the face of their admission that other persons and families put in claims for the compensation. If nothing at all, such proof would protect the State from the other competing claimants. In our view this is an issue which under rule 5(1)(a) of Order 14 comes under the description ‘there ought for some other reason to be a trial of that claim or part of it.’

The documents at pages 19 to 34 of the record of appeal on the basis of which the trial court entered judgment for the plaintiffs have been examined. What is evident is that none of the exhibits relied on in the application; namely the judgment of the Native Court ‘B’ exhibit VD1 at page 21, the letter from the Upper Tongu Local Council in respect of the Luta Quarry exhibit VD2 at page 29 as well as exhibit VD3 from the Lands Department in respect of compensation to plaintiff's' family for the Luta Quarry has described boundaries which tally with the description in E.I. 27. Plaintiff's case would be unanswerable if the descriptions of the land in exhibit VD1 and the other exhibits were identical.

That is not to question plaintiff's claim that they had been adjudged owner of those lands described in their exhibits. However, it would require evidence to show that the area of the lands as described in the exhibits included the description of the land in E.I.27. We are of the view that the trial court was too hasty in concluding that the claim of title to the whole 24,790 acres of acquired land had been proved to the acceptable evidential standard only on the strength of the documents exhibited to the application for summary judgment, even though the pleadings raised the crucial issue of different competing interests for the compensation. This was a factual as well as legal issue which required plaintiffs' evidence to be properly examined and subjected to cross-examination if necessary.

Plaintiff's counsel correctly states that the duty of the defendant when the application was heard was to demonstrate that there were triable issues which required a full-length hearing. He says the Ruling suffered three adjournments at the instance of the defendant for several reasons, notable among them was to enable them to furnish the court with evidence of existing documents of pending conflicting claims and plans, but the defendant was unable to furnish the court with these pieces of documents or facts.

However, these allegations are not borne out by the record. An affidavit in opposition was not filed but when defence counsel was heard when the motion was moved on 9^th July 2015, he prayed for an adjournment to provide names of claimants. This request was opposed by plaintiff's counsel and the objection appears to have been upheld because the case was adjourned to 31^st July 2015 for Ruling.

[See page 37 of the Record]. The Ruling was duly delivered on the adjourned date of 31^st July 2015. [See pages 38 and 39 of the record]. Had the defendant been given the opportunity to substantiate its assertion, but failed to, there might have been better justification for entry of the summary judgment.

This is what this court said in Wilson vs. Smith [1980] GLR 153, holding 2:

‘Upon the plaintiff making application under Order 14, the defendant's responsibility of satisfying the judge that he had a good defence to the action on the merits was not required to be discharged in any particular way. There was no necessary format provided, and it seemed enough if the defendant used a procedurally recognised format such as a statement of defence. Although Order 14, r. 3 (a) of L.N. 140A required that the defendant might show cause against such an application by affidavit or the judge might allow the defendant, to be examined on oath, that provision was not expressed in mandatory terms. It indicated some way whereby cause could be shown, but it could not be read as exclusive when in the language of Order 14, r. 1 of L.N. 140A the defendant's responsibility was generally to satisfy the judge that he had a good defence.’ Where the defence filed was not a sham one, a judge who was still not entirely satisfied, could properly exercise his discretion under Order 14, r. 3 (a) and allow the defendant to be examined on oath. This would be a better course than to disregard a defence on the file.

We are of the view that the fact that there were numerous claimants, a fact admitted by the plaintiffs, deserved consideration. It was a disclosure which in our view was sufficient to have earned the defendant leave to defend the action considering that the State by the summary judgment would be obliged to pay monies which the plaintiffs' may not be entitled to.

The fact that the land was acquired in 1976 but it took the respondents until 2015, almost 40 years later to institute the action when all along it had the 1957 judgment ought to have caused the trial court to scrutinise the application more closely.

Counsel for the defendant contends that the plaintiff's avoided stating the quantum of land area their predecessor Anum Norgbodzi had submitted in writing pursuant to section 4(1) of the State Lands Act 1962, Act 125. It is alleged that the claim had been for 15,412.11 acres and not for the total acreage acquired by the State. This was an issue worthy of further investigation.

Sadhwani v Al-Hassan [1999-2000] 1 GLR 19 C. A held that in applications to sign final judgment, the trial judge is required to examine the pleadings and determine whether there existed a bona fide or good defence known in law. Once any of them was established, it would constitute a triable issue. It could be an issue of fact or law. However the judge was not empowered to try the merits of the respective claims using the affidavit evidence on hand. In any case, the affidavit evidence presented in an application for summary judgment was not intended to be used for the resolution of triable issues that might emanate from the pleadings since that would undermine the very foundation of justice.

As Bowen L.J. said in Blaiberg v. Abrams (1910) 77 L.T.J. 255, C.A.,

"In deciding whether the defence, set up is a real defence or not, all the circumstances must be looked at."

We have looked at all the circumstances, and even while censuring the defendant for the inordinate delay in settling the plaintiffs' claim to compensation, it is clear to us that the defence of the defendant, if it can be proved, the plaintiffs action may not wholly succeed. As stated in Sanunu vs. Salifu [supra], the question is the outcome of the action on the assumption that the defendant is able to prove what it alleges. It certainly is an issue for trial if by reason of competing claims as well as the lesser acreage alleged originally claimed by the plaintiffs', the plaintiffs are not entitled to compensation for all the 24,790 acres of land acquired by E.I.27. These issues satisfy the requirements of Order 14 rule 3(1) of the High Court Rules, CI 47 that is expressed thus:

“A defendant may show cause against the application by affidavit or otherwise to the satisfaction of the court.”

Having carefully evaluated the Record of Appeal, it is our opinion that there are triable issues and so summary judgment ought to have been refused and the defendant/appellant given unconditional leave to defend.

In the circumstances we hold that the appeal has merit and the same hereby succeeds.

The summary judgment entered for the plaintiff/respondent by the trial court on 31^st July 2015 is hereby set aside and the defendant/appellant is hereby granted leave to defend the action.

(Sgd.)

CECILIA H. SOWAH

(JUSTICE OF APPEAL)

(Sgd.)

ADJEI, (J. A.)                                I agree              DENNIS ADJEI

(JUSTICE OF APPEAL)

(Sgd.)

MENSAH, (J. A.)                         I also agree     LAWRENCE L. MENSAH

(JUSTICE OF APPEAL)