DR. ARTHUR OTOO CHINERY vs I-SIBIE COMPANY LTD & ORS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
DR. ARTHUR OTOO CHINERY - (Plaintiff/Respondent)
I-SIBIE COMPANY LTD & ORS - ([1ST Defendant/Appellant)

DATE:  29 TH NOVEMBER, 2018
SUIT NO:  H1/19/2018
JUDGES:  MARFUL SAU (J.S.C) PRESIDING, E. K. AYEBI (J.A), AVRIL LOVELACE-JOHNSON (J.A)
LAWYERS:  THOMAS HUGHES FOR THE 1ST DEFENDANT/APPELLANT
KOSINA OFEI BADU FOR PLAINTIFF/RESPONDENT
JUDGMENT

AVRIL LOVELACE-JOHNSON (JA):

This is an appeal against the ruling of the High Court dated 7thJune 2016 on the following grounds:

1. The Ruling is against the weight of evidence

2. The Default Judgment being a nullity should not have been allowed to stand

3. The judge erred in even considering the evidence of the bailiff and should have disregarded his evidence for proving service three years after the fact

4. The learned judge’s findings that there was evidence of the land having been transferred to third parties is not borne out of the record

5. The learned judge erred in dismissing the application when the suit had not even commenced and there were 8 other parties in the suit.

6. Further grounds to be canvassed upon the receipt of the record of proceedings

 

Contrary to the indication in the notice of appeal no additional grounds of appeal were filed.

The facts of this case are that the Plaintiff/Respondent (to be referred to simply as Respondent hereon) issued a writ on 26th August 2011 against the Defendant/Appellant (to be referred to simply as Appellant hereon) and eight others for the following reliefs:

i. Declaration of title to or in the alternative Declaration that the Awura Naa Hansen family through their ancestors and predecessors are the owners in possession of all that large tract of land situate at Accra called the plantation, formerly known as Katakpor and now Katapor land situate in Accra measuring 1,588.37 acres (635 hectares) bounded on the North by Faase family land measuring 39,078 feet more or less on the South and South-East by Kwabenya land measuring 211,345 feet more or less on the South-West by Ankrah and Abesse Pokuase Family lands measuring 9,709 feet more or less and on the North-East by Bodumasi family land measuring 31,661 feet more or less more particularly delineated on a site plan drawn on compass but now re-surveyed and drawn according to national co-ordinates by the survey Department of Ghana and therefore now has a total area of 988.21 acres (399.93 Hectares).

ii. Recovery of possession to all the portions of Awura Naa Hansen family land being developed by all the Defendants their servants, agents and assigns or persons claiming through or in trust for them.

iii. Damages for trespass.

iv. Mandatory injunction compelling the Defendants to remove or demolish all the structures they or their servants, agents or assigns or persons claiming through or in trust for them have built on AwuraNaa Hansen family land.

v. Perpetual injunction restraining the Defendants, their agents, servants, assigns and all those claiming through or in trust for them from further interfering with any portion of the AwuraNaa Hansen family land.

vi. A declaration that the land in dispute does not form part of the Ashongman lands.

vii. A declaration that any claim by anyone including the Ashongman Chief or anybody or company claiming through or in trust for him or their agents, servants or assigns or anybody, company or any Chief from wheresoever is statute barred.

viii. An order setting aside and revoking all the leases and or subleases affect the Awura Naa Hansen family land which has been registered at the Lands Commission on grounds of fraud.

ix. An order that the Lands Commission cancel all the leases processed and registered for the Defendants and any order lessees or sublessees deriving title through the Defendants and registered at the Lands Commission touching the Awura Naa Hansen family lands.

 

According to Counsel for the Respondent upon the Appellant and the 6th Defendant failing to enter appearance after being served, with the Writ and Statement of claim, a Motion for judgment in default of defence was moved and granted on 22nd November 2012. He states that attached to this motion was a search report which confirmed that the first defendant had been served on with the writ and statement of claim on 30th August 2011.

 

On the other hand, Counsel for the Appellant, states that three search reports on the service of the writ yielded conflicting results and thus raises the question of whether or not the writ had been renewed before it was served a year later, if it was served at all. Further, it is submitted that the Appellant was not served with the motion for default judgment which culminated in the Ruling on appeal

 

This was the state of affairs when on 21st April 2015, the Appellant filed an application to set aside the default judgment earlier mentioned. After taking viva voce evidence from the bailiff who allegedly served the Appellant with the motion for default judgment, the Court concluded that the latter had indeed been served and refused to set aside the said judgment since the application to do so had been brought almost three years after the judgment and third parties had acquired rights in the land the subject matter of the judgment.

 

It is the Appellant’s dissatisfaction with the Court’s refusal to set aside the judgment that has led to the present appeal. I will deal with the second ground of appeal first. This is because this ground alleges that the judgment in question is a nullity and a finding that it is indeed so will render the consideration of the other grounds unnecessary.

 

The arguments of counsel for the Appellant on this ground are twofold. The first is (to quote Counsel) that “where a Defendant fails to enter appearance in a case to which Order 10 applies then the Applicant should comply with Order 10 Rule 6(1) and (3)”. The second is that the nature of the reliefs sought by the Respondent were such that he should have led evidence in support of them before being given judgment.

 

In his response to these arguments, Counsel for the Respondent submits that the issue of whether or not the Appellant was served with the writ and statement of claim and the issue of whether the writ was renewed were never raised before the trial court. He states that the Appellant based his application on the ground that they were not served with the motion for default judgment and so “… it is therefore too late in the day for 1st Defendant/Appellant to come before this court to raise other issues for the first time and expect that the learned Trial Judge ought to have dealt with them”. Further, on this ground, counsel contends that the reliefs granted did not include one for declaration of title and that it is only where the reliefs sought are ones for declaration of title and perpetual injunction that evidence must be taken at that stage of the proceedings.

 

The judgment in question can be found at page 78 of the Record of Appeal (ROA). This is what the court stated therein

 

The application for judgment in default of defence against 1st and 6th Defendants is granted as prayed. Accordingly, judgment is entered against 1st and 6th Defendants in respect of reliefs 2, 4 and 7 as endorsed on the writ of summons. Plaintiff is awarded costs of GHC 500.00. Suit as against other Defendants to take its normal course.

 

The above was given in respect of a motion for judgment in default of defence brought on behalf of the Respondent on 13th November 2012.

 

Order 10 entitled Default of Appearance provides in Rule 6(1) and (3), referred to by counsel for the Appellant, as follows

 

Actions not specifically provided for

 

6(1) Where the plaintiff makes a claim of a description not mentioned in rules 1 to 4 against a defendant, and the defendant fails to file appearance, the plaintiff may after the time limited for appearance and upon filing an affidavit proving due service of the writ and statement of claim on the defendant, proceed with the action as if the defendant had filed appearance

 

3) Notice of an application for leave to enter judgment under subrule (2) shall be served on the defendant against whom it is sought to enter judgment.

 

It is the contention of counsel for the Appellant that there is no evidence that these provisions were complied with. The record proves otherwise. The record shows at page 75 that an official search stated that the Appellant was served with the writ of summons and statement of claim on 30thAugust 2011. Further, the court was also satisfied after taking evidence from the Bailiff who served the Appellant that they were indeed served with the application for judgment in default of defence. That matter was put to rest. This leg of counsel for the Appellant’s submissions on this ground lack merit.

 

Incidentally this finding also disposes of grounds (1)and (3) of the appeal and so a few comments on the said grounds are called for at this stage even if out of turn. The submissions on ground one which is that the judgment is against the weight of evidence seek to dispute service of the application for default judgment on the Appellant and to say that by this failure to serve him the audi alteram partem rule had been breached. In the course of his submissions, counsel touched on ground three and took the position that had the trial judge properly disallowed the proof of service by the bailiff, he would have set aside the default judgment.

 

As stated earlier, the record shows the Appellant was served. Any seeming contradiction in the proof of service on record was explained away by the Bailiff on oath to the satisfaction of the trial Judge as can be seen from the judgment. I have been given no cause to disturb this position taken by the Learned trial Judge and I am satisfied that the audi alteram rule was not breached in that regard because there is proof that the Appellant was served. He chose not to appear in Court. These two grounds of appeal ie. grounds one and three are dismissed as being without merit.

 

Going back to ground two, it is not in dispute that the Appellant did not enter appearance. Order 10 of C.I. 47 provides the steps to take when this happens. The reliefs sought by the Plaintiff not being a claim for liquidated demand, unliquidated demand, detinue, possession of immovable property ONLY or a mixture of any of these claims, it is rule 6(1) which applies. The rule required the Respondent to have proceeded with the suit as though appearance had been entered by the Appellant.

 

Apaloo CJ (as he then was) in the case of

 CONCA ENGINEERING (GHANA) LTD v MOSES 1984-86 GLR

 

(in discussing Order 13 rule (12) of LN 140 A the equivalent of Order 10 rule 6(1) of C.I. 47) stated that what this meant was that the case should take its normal course which also required that the Plaintiff, in line with our adversarial system, had to establish the reliefs sought by clear and acceptable evidence whether or not the Defendant against whom he sought the relief was present.

 

In the present case, the Respondent for some reason chose to file an application for judgment in default of defence. In the said application, it is stated in paragraphs 5 and 6 as follows

              “5. I am advised by Counsel and verily believe same to be true that under the High Court (Civil Procedure) Rules, a Defendant is deemed to have entered appearance                      even when the statutory period had elapsed and he had failed so to do.

6. It follows that only judgment in default of defence can be applied for against Defendants who fail to enter appearance or cause any appearance to be entered for them”.

 

This is also the position taken by counsel for the Respondent in his written submissions. This is not the import of the provisions of Order 10 of C.I. 47. This position is contrary to the clear provisions and judicial interpretation of the said Order 10 such as stated in CONCA ENGINEERING CO. LTD VS. MOSES (supra).

 

The process used to obtain the default judgment in question was not the appropriate one. It ought to be set aside.

 

Further, the judgment granted the Respondent in default of defence falls short of the practice and procedure pertaining to the grant of the reliefs therein. Clearly the Plaintiff’s application was brought and granted under rule 6(1) and (2) of Order 13. The latter enjoins the court in granting the application to

“..give such judgment as the Plaintiff appears entitled to by the statement of claim…”

 

It is obvious from the statement of claim that the reliefs granted by the said judgment (ie recovery of possession, mandatory injunction and a declaration that claims to the land by certain persons are statute barred) are all consequential to the grant of the substantive relief for declaration of title for which default judgment was, rightly not sought. Such a relief could not be properly granted by a motion in cause.

 

The settled practice is for a declaratory relief to be proved by evidence led. The Supreme Court in the case of REPUBLIC V HIGH COURT ACCRA; EX PARTE OSAFO [2011] 2 SCGLR 966 interpreted rule 6(2) of Order 13 to include a duty to take into account the established practices of the court including the practice of taking evidence before granting a declaratory relief. Failing to do this before granting such a declaratory relief renders the judgment granting the said relief a nullity.

 

As stated earlier, the reliefs granted the Respondent were dependant on the claim for Declaration of title. Inspite of the way they were couched, that relief, not having been established by evidence, the consequential reliefs granted could also not have been properly so done. Their grant was premature. That is sufficient reason to set aside the present default judgment, and for the suit to take its normal course as between the parties to the said judgment. See the case of BANK OF GHANA (NO 3) V SEFA (NO 3) & OTHERS [2015-2016] 1 SCGLR 741@ 746

 

The second ground of Appeal succeeds. In the light of my findings on this ground and the other two grounds which came up for discussion during the preceding analysis, I find no need to consider grounds (4) and (5) of the appeal. The Appeal is upheld. The said default judgment is hereby set aside.

 

Cost of GH¢1,000.00

 

SGD

…………………

AVRIL LOVELACE-JOHNSON

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

 

I Agree                                                                       …………………….

MARFUL SAU

(JUSTICE OF THE SUPREME COURT)

 

SGD

I Also Agree                                                             ………………..

E. K. AYEBI

(JUSTICE OF THE COURT OF APPEAL)

 

 

 

 

 

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