ADUAMA OSEI

On the 6^th of November, 2006, the Plaintiff/Respondent, hereinafter called “the Respondent”, caused a writ of summons to be issued in the High Court, Accra, claiming a declaration of title to land and other reliefs against the Defendant/Appellant, hereinafter called “the Appellant”. On the 29^th of November, 2006, the Appellant caused an appearance to be entered for him. No statement of defence was however filed on his behalf.

The record of appeal shows that on the 12^th of February, 2007, there was a proceeding before the High Court in which final judgment was purportedly entered in favour of the Respondent against the Appellant, granting the Respondent all the reliefs claimed by him.

Strangely however, on the 23^rd of March, 2007, over a month after final judgment was supposedly entered in favour of the Respondent against the Appellant, an application was filed in the High Court for leave to enter interlocutory judgment against the Appellant.

The return date for that application was 3^rd April, 2007. It appears however that the application was rather heard on the 17^th of April, 2007.

The record of appeal shows a proceeding in the High Court in which interlocutory judgment was entered for the Respondent against the Appellant on 17^th April, 2007. After the interlocutory judgment was entered, the matter was adjourned to 11^th May, 2007 for damages to be assessed. Indeed, there is in the record of appeal an entry of interlocutory judgment which was filed on 7^th March, 2007, and which served notice that a hearing would take place on Friday, 11^th May, 2007.

From my review of the record, there does not appear to be any basis for the proceeding in the High Court on the 12^th of February, 2007, in which final judgment was purportedly entered in favour of the Respondent against the Appellant. Since that proceeding has nothing to stand on for its validity, I will set it aside.

As observed above, on 17^th April, 2007, interlocutory judgment was entered against the Appellant in favour of the Respondent and the matter was adjourned to 11^th May, 2007 for damages to be assessed. The entry of judgment filed gave notice that damages would be assessed on the 11^th of May, 2007. There is however no indication from the record that on the 11^th of May, 2007, there was an assessment of damages. There is however record of a proceeding in the High Court which purports to have taken place on 18^th April, 2008. I say “purports” because the “8” in “2008” is in ink and that has not been authenticated. It is not known who inserted the “8” and there is no indication of the authority on which it was inserted.

It is gathered from the Notice of Appeal herein, however, that this appeal is about the refusal of the High Court to set aside a default judgment entered on 17^th April, 2008. There is also a motion for stay of execution and for an order extending time within which to appeal against a judgment of the Court dated 17^th April, 2008. The extension of time to appeal was granted by the High Court on 28^th July, 2010. There is the probability therefore that there was, indeed, a proceeding in the High Court on 17^th April, 2008, in which final judgment was entered in favour of the Respondent against the Appellant.

Now, a few matters which, in my view, are of fundamental importance in this appeal have caught my attention and I will proceed to consider them. The application in which leave to appeal was granted to the Appellant was filed on 14^th August, 2008, and it is found at page 31 of the record of appeal. The motion paper shows that in the application, the Appellant prayed for “Stay of Execution and further for Extension of Time within which to file an appeal against the judgment of this Honourable Court dated 17^th April, 2008…”. The order granting the application is at page 92 of the record and all it says is, “Application granted. Cost of GH¢300.00 against the Defendant/Applicant”. When this order and the relief sought in the application are read together, it is clear that the Appellant had been granted leave to appeal against a judgment of the trial Court dated 17^th April, 2008.

The Notice of Appeal filed in pursuance of the leave granted on 28^th July, 2010 seems to be that which appears at page 93 of the record of appeal, and it gives notice of the appeal as follows:

“TAKE NOTICE that the Defendants/Appellants being dissatisfied with the judgment of the High Court do hereby appeal same to the Court of Appeal on the ground set out in paragraph 2, and will at the hearing of the appeal seek the reliefs set out in paragraph 3 hereof”.

The ground set out in paragraph 2 of the Notice of Appeal is as follows:

“The learned trial judge erred when he refused to set aside the default judgment obtained by the Plaintiff on the 17^th April 2008, and allowing the matter to be heard on the merit”.

Counsel for the Appellant says in the second paragraph of his filed submissions that he

“filed an appeal against both the default judgment and its refusal by filing a Notice of Appeal on the 10/8/2010”. I do not however see this in the Notice just quoted above. From the terms in which notice of the appeal has been given, the judgment the Appellant says he is dissatisfied with and against which he is appealing has not been specified. Certainly, it does not give notice of an appeal against two judgments or orders. What it gives notice of is an appeal against one judgment – “the judgment of the High Court”, with no specification as to when it was given or by whom it was delivered. It is in the ground of appeal that mention is made of the default judgment of 17^th April, 2008 and the order refusing to set the said judgment aside. But after reading the ground of appeal, it is clear that the subject matter of the appeal is the refusal of the trial judge to set aside the default judgment dated 17^th April, 2008.

Now, the question is, when, as noted above, leave has been granted to the Appellant to appeal against the default judgment of 17^th April, 2008, is he entitled to file an appeal against the refusal of the trial judge to set aside the default judgment of 17^th April, 2008? It is true that the success of the appeal against the refusal to set aside the default judgment may result in the setting aside of the order entering the said judgment. But this, in my opinion, does not mean that the order refusing to set aside the judgment and the order entering the judgment are one and the same order or judgment. In my view, they are different, and when the Appellant has asked for and obtained leave to appeal against the default judgment, he is not necessarily granted leave to file an appeal against the refusal to set aside the said judgment. In my view, so long as the only ground of objection filed by the Appellant is that indorsed on the Notice of Appeal, the Appellant has gone beyond the terms of the leave granted him by the trial Court and he cannot be considered as properly before this Court in this appeal.

Another issue concerning the competence of this appeal which has caught my attention is in respect of the ground of appeal, which has been quoted above. It is to be noted that leave was granted to the Appellant to appeal to this Court and there is no denying therefore that in filing the appeal, the Appellant was bound by the rules of this Court as to the form and content of his Notice of Appeal. By rule 8(4) of the rules of this Court, CI.19,

‘(w)here grounds of an appeal allege misdirection or error of law, particulars of the misdirection or error shall be clearly stated”. I have read the Appellant’s ground of appeal a number of times in the light of the above-quoted rule and I do not feel satisfied that the Appellant has complied with the rule in formulating his ground of appeal.

As observed above, from the ground as formulated, the subject matter of the Appellant’s complaint in this appeal is the refusal of the trial judge to set aside the default judgment of 17^th April, 2008. This fact is conceded by Counsel for the Appellant at page 2 of his filed submissions. His complaint about the refusal is that it came about as a result of an error on the part of the judge. In my view, since the Appellant alleges an error on the part of the judge in respect of the refusal, he is bound by rule 8(4) of the rules of this Court to give particulars of the alleged error. The judge may have failed to take relevant principles into account in refusing the application; he may have misinterpreted the relevant principles; he may have been influenced by irrelevant principles; or he may have been arbitrary in his handling of the application. Whatever it was which he considered an error on the part of the trial judge, the Appellant was bound to say it to serve notice to his opponent as well as to this Court as to the case he was going to set up in his appeal.

In the conduct of litigation, promoting fairness between the parties is an overriding demand, and where the nature of a party’s case so requires, the provision of particulars by him, when setting out his case, helps in meeting this paramount demand. By providing particulars, a party opens up his case and serves notice to his opponent as to the case he is going to meet. This prevents his opponent from being taken by surprise and attains fairness in the conduct of the case.

In my view, the requirement in rule 8(4) of CI.19 that an Appellant who alleges an error of law must give particulars of the alleged error suggests that in cases where such allegations are made, fairness demands openness on the part of the alleging party. Fairness and openness must prevail, and the alleging party ought not be given a free range to the embarrassment of his opponent. In my opinion, it is in view of this imperative that rule 8(4) has been couched in mandatory language. The Appellant has not complied with this mandatory requirement in respect of the ground indorsed on his Notice of Appeal and I hold that the said ground is not a valid ground. I should emphasize that this defect is additional to the earlier holding that the said ground is invalid as being outside the terms of the leave granted by the trial Court.

Another feature of this appeal which also, in my view, undermines the competence of the appeal is the absence from the record of appeal of the order of the trial Court refusing to set aside the judgment of 17^th April, 2008. As noted repeatedly, the complaint of the Appellant, as disclosed by the ground of appeal, is that the learned trial judge erred when he refused to set aside the default judgment obtained by the Plaintiff on the 17^th of April, 2008. This, as already said, is a clear indication that the complaint of the Appellant in this appeal is about an error the High Court allegedly committed when it refused to set aside the default judgment of 17^th April, 2008. The order which contains the alleged error is therefore all that the present appeal is about. It is the order which this Court is called upon to examine and decide whether or not there is merit to the allegation made in the appeal.

But where is that order – the order of the High Court which refused to set aside the default judgment of 17^th April, 2008? I have gone over the record several times and I have not been able to locate that order. The absence of the order seems to explain the inability of the Appellant to specify in his Notice of Appeal the subject matter of the grievance he has brought to this Court. In the Notice of Appeal, we saw the Appellant vaguely serving notice that “being dissatisfied with the judgment of the High Court”, he was appealing against the same to this Court.

From the filed submissions of Counsel for the Appellant, it is evident that the Appellant is aware that the order he has appealed against is not available. I gather this from the observation of Counsel in his filed submissions that the docket in the case in the High Court could not be traced and that when it was eventually located, “the Appellant’s application to set aside the default judgment was refused on the 7/5/2010 by Justice S.K.A. Asiedu (the notes were not included in the record of appeal before this Court)”.

Counsel therefore is aware that the notes containing the order which he is appealing against are not included in the record of appeal. But the reality is that without the order, this Court has no appeal to hear. There is no way this Court can probe a judgment or order where the terms of the judgment or order or the matters the judgment or order dealt with are unknown or uncertain. In other words, this Court cannot carry out its proceedings in vacuum.

The drift of the observations made above is that this appeal is frivolous and incompetent, and I accordingly dismiss the same.