IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EMMANUEL RAY QUARCOO -(Plintiff/ Respondent)
REV. GURU JANAKANDA AMANKWAH - (Defendant/ Appellant)
DATE: 25 TH JANUARY, 2018
CIVIL APPEAL NO: H1/167/17
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), E.K. AYEBI J.A., SUURBAAREH J.A.
FOSU GYEABOUR FOR DEFENDANT/APPELLANT
EVA ANGELINA DANIELS KLU FOR PLAINTIFF/RESPONDENT
This is an appeal against the judgment of the High Court, Land Division Accra dated 29th April 2016 in which judgment was entered in favour of the plaintiff/respondent, hereinafter called Respondent, for a declaration of title, recovery of possession and an order of perpetual injunction and damages in respect of a piece of land at Oshiyie. Following the judgment, the defendant/appellant, who would be referred to simply as Appellant, applied to have same set aside upon an application on notice alleging that he was not heard as his counsel failed to bring the numerous hearing notices to his attention.
The court however refused his prayer to set aside the judgment on 29th June 2016 and upon which he lodged the present appeal to this court against both the judgment and the ruling refusing to set it aside.
Per his notice of appeal dated 18th July 2016, the Appellant’s grounds of appeal are the following:-
“a. The Trial Judge erred in visiting the sins of defendant/ appellant’s counsel who failed to bring the numerous hearing notices to the attention of the defendant/appellant and failed to set aside the judgment delivered on the 29th day of April, 2016.
b. The Trial Judge erred in failing to set aside the default judgment dated the 29th day of April 2016 when the defendant/appellant had disclosed a defence to the action.
c. The judgment dated 29th day of April 2016 is perverse and in breach of fair hearing.
d. The Trial Judge erred in failing to hold that the plaintiff/ respondent’s land is different from the defendant/ appellant.
e. The judgment and ruling are against the weight of evidence.
f. Further grounds of appeal shall be filed upon receipt of the records of proceedings”.
To appreciate the judgment, it is necessary to recap what transpired at the trial court up to the time the judgment was delivered on 29th April 2016 and the unsuccessful attempt to set same aside.
The respondent issued out a writ against the Appellant, at the High Court, Lands Division Accra, claiming a declaration of title, recovery of possession, perpetual injunction as well as damages for trespass in respect of a piece of land said to be at Oshieyie, Accra and containing an approximate area of 0.42 acres and particularly described on the writ of summons.
After pleadings had closed, the court on 25th November 2014, adopted the issues filed by the parties for determination and made an order for the matter to be put before a substantive judge. S.A. Ocran, the substantive judge, on 30th January 2015 made an order for the parties to file documents to be relied on at the trial. The appellant on this day was represented by one Theresa Abena Boadu said to be holding the brief of A.G. Boadu. As the Respondent and counsel were both absent, an order was made for counsel to be served hearing notice after the matter was adjourned to 25th February, 2015.
Based on the order for filing of documents, the respondent filed some document on 10th February,
2015 and further documents on 25th February 2015. Despite this, when on 29th June, 2015 the court realized that the documents filed by the respondent were not on the docket and also that the appellant had not filed any documents, the case was adjourned to 22nd July 2015 and further adjourned to 27th October, 2015 as the appellant had not yet complied with the order for filing documents and he and his counsel were both absent. An order was again made for hearing notice to be served on his counsel.
On 27th October, 2015, vide page 31 of the record of appeal, when there was no indication that counsel for the appellant had been served with the hearing notice despite evidence that the respondent had made payment in respect of service, the court adjourned the case to 17th November, 2015 for service to be effected on counsel for the appellant.
Even though the record of appeal does not contain proceedings for 17th November 2015, it would however appear that the parties were directed to file witness statements since from the proceedings of 21st December 2015, the respondent had filed his witness statements. The court, on that day, made an order for proceedings of the day to be served on counsel for the appellant after an adjournment to 28th January, 2016. See page 52 of the record of the appeal.
On 8th February, 2016, the court observed that despite the fact that the respondent’s witness statements have been served on counsel for the appellant and further that he was duly served with hearing notice on 3rd February, 2016, not only had the appellant failed to file his witness statements, but also that he and his counsel failed to turn up to explain their default. The court, after this observation, adjourned the matter and made an order for hearing notice to be served on counsel for the appellant once more.
On 24th February 2016 when the appellant had not filed his witness statement and neither he nor his counsel were in court to offer any explanation, the court observed as follows at page 56 of the record of appeal:
“Since the defendant and his counsel have all failed to attend court to explain why the defendant’s witness statement has not been filed I take it that the defendant does not intend to lead evidence”.
The court thereafter adjourned the matter to 7th April, 2016 for pre-trial review conference and directed hearing notice to be served on counsel for the appellant.
On 7th April, 2016, upon proof that the order for hearing notice had been complied with, the court proceeded with the pre-trial review conference and then adjourned the case to 14th April 2016 for hearing with an order that hearing notice once more be served on counsel for the appellant. On 14th April 2016, on being satisfied that hearing notice had been served on counsel for the appellant, the court proceeded with the hearing whereby the respondent led evidence in proof of his claim and upon which the court, on 29th April, 2016 entered judgment in his favour in respect of the reliefs endorsed on his writ of summons.
As indicated, following the judgment and the entry of same on 3rd May 2016, the appellant unsuccessfully applied to set it aside alleging that he did not attend court because he was unaware of the dates the case was adjourned to due to failure of his counsel to inform him as well as the fact that he was hospitalized at 37 Military Hospital and thereafter sought herbal treatment outside Accra. The application to set aside was made after he had filed a notice of change of solicitor. The notice of appeal was filed following the refusal by the trial judge to set aside the judgment entered on 29th April, 2016.
Arguing the first ground of appeal, it was submitted that when the court saw that there was no response to the several hearing notices and orders served on counsel for the appellant did not yield any results, it should have for once directed hearing notice to be served on the appellant personally and not visit the sins of the lawyer on him. With regard to the reason for not setting aside the judgment based on the fact that the appellant was to be blamed as he engaged the counsel, it was contended on behalf of appellant that, even if the appellant should pursue his counsel, that would not give him justice or the right to be heard.
In response to the submissions about visiting the sins of counsel on the appellant, it was contended on behalf of the respondent that, apart from the fact that service on counsel was good and valid so long as there was nothing to show that he had withdrawn his services or that his services have been dispensed with, that as it was also necessary that before engaging counsel a party should conduct investigations into the background of counsel, he or she must be ready to bear any consequences resulting from his or her failure to do a background check. Learned counsel for the Respondent went on to cite as authority, the cases of Adu v. Ankumah  1 G.L.R. 22 and The Republic v. High Court (Fast Track Division) Accra; Ex Parte Justin Pwavra Teriwajah and Henry Korboe and Reis & Co. Ghana Ltd.  68 G.M.J.1 S.C. On the refusal to set aside the judgment, it was submitted on behalf of the respondent that as the appellant had indicated in his affidavit to set aside that his son was in constant touch with the lawyer, he could have easily enquired about the progress of the case but failed to do so.
Order 7 of the High Court (Civil Procedure) Rules 2004 C.I.47 deals with service of processes generally and rules 1 and 2 in particular, provide as follows:
“1. A document which is required to be served on a person shall be served by a bailiff of the court or a process server registered with the court; but a party may direct the service.
2(1) A document which is required to be served on a person shall be served personally unless the express provision of these Rules otherwise provide or the court otherwise directs.
(2) This rule shall not affect the power of the court under any provision of these Rules to dispense with the requirement of personal service.”
From the record of appeal, the court, by directing that the various hearing notices and orders be served on counsel for the appellant was dispensing with the requirement of personal service. In any case, these were not processes which by the rules are to be served personally on the party. The trial court therefore did nothing wrong in directing that service of these processes be effected on counsel for the appellant so long as counsel had not withdrawn his services and the appellant had not filed any process dispensing with his services. In entering appearance to the writ, vide page 5 of the ROA, the appellant indicated the address of his counsel as the address for service and so long as the services of counsel has not been dispensed with or counsel has written withdrawing his services as counsel and leave granted, service of processes on that address remain good and valid. This was the import of the decision in Adu v. Ankumah (supra) and the trial court was not obliged to direct that service be effected on the appellant just because service on his counsel, which has been provided as address for service of processes, has not yielded any results.
Apart from the necessity on a party wishing to engage the services of counsel to make a background check, it is also the view of this court that after a party has engaged the services of counsel, it will be prudent for the party to be in constant touch with the counsel to enquire about the progress of the case if he/she is really desirous of having the matter heard. In this case, from 20th January, 2015, when an order was made for the filing of documents (p.16 of ROA), the appellant never made any effort to contact his counsel up to the time the case was adjourned on 7th April, 2016 for hearing; heard on 14th April, 2016 and judgment delivered on 29th April, 2016.
The appellant, in his application to set aside the judgment, alleged being admitted to 37 Military Hospital after which he also sought herbal treatment. Apart from failing to show evidence of this, as he indicated that his son was in constant touch with the counsel, he could easily have directed the son to enquire from his counsel about the progress of the case, whilst on admission or seeking the herbal treatment. This he failed to do and so should blame himself for what happened to him.
With regard to the second ground of appeal about an error in failing to set aside the judgment when a defence has been disclosed, it was submitted that failure to set aside the judgment for the reason that it will serve no useful purpose as no defence was disclosed, amounted to shutting the appellant out of justice by denying him the opportunity to explain any inconsistencies in the date of acquisition as contained in his defence and the pleadings of the case earlier struck out.
According to learned counsel for the appellant, having pleaded the statute of limitation, in paragraphs 9 of his defence, the trial court could not say that no defence had been disclosed. Citing the case of Republic v. High Court, Accra; Ex-Parte Aryeetey (2003-2004) S.C.G.L.R. 398 at 405, it was submitted that once such a plea succeeds, the merits of the case are inconsequential. Referring to a plethora of authorities on when a default judgment may be set aside, it was submitted that as an issue of limitation was raised, the trial court erred in not setting aside the judgment.
Responding to the submissions on this ground of appeal, learned counsel for the respondent was at pains to point out that the judgment in issue is neither a judgment in default of appearance or defence, but one given after trial, and that for such a judgment to be set aside, because the defendant was not available, the party must satisfy the court that his non-attendance was not intentional or a disregard of the rules.
Referring to the case of Samuel Kakra Mensah v. Christopher Kwabla Ligbidi  75 G.M.J. 157 on the rules permitting hearing in the absence of a party where a matter has been adjourned for hearing, it was submitted that once it has been shown in this case that the appellant failed to act despite being served with the witness statement of the respondent and the court notes, the trial judge was justified in proceeding with the trial under rule 7A(3) of the High Court (Civil Procedure) (Amendment) Rules 2014 C.I.87.
After referring to the case of Asamoah v. Marfo  S.C.G.L.R., 832 at 837 and the dictum of Anin Yeboah, JSC on what constitutes a default judgment, learned counsel for the respondent recounted the processes leading to the judgment under review, and submitted that the trial judge, having satisfied himself that the processes have been served on counsel but the appellant and his counsel were absent, was justified in allowing the respondent to prove his claim and that the judgment given in these circumstances was not a default judgment. It was further submitted that, to set aside a judgment regularly obtained, an applicant, who is seeking the exercise of the discretion of the court, must not only disclose a reasonable defence, but also show that it would be unjust in the circumstances, not to have the case heard on its merits and that since in this case, the affidavit in support of the application failed to disclose any new defence, merely attaching a site plan as the basis of his claim about the lands being different will not result in the judgment being set aside.
As stated by Anin Yeboah, J.S.C. in Asamoah v. Marfo (supra), the judgment in issue was not a default judgment as it was neither given in default of appearance or defence as counsel for the respondent rightly pointed out. Since from the recount of what transpired before the judgment, the trial judge was permitted under the rules to proceed to hear the matter, the judgment was one given after trial and therefore regular and should not be set aside just because the appellant failed to attend. An application to set aside such a judgment being one seeking the discretion of the court, one must not only show the existence of a defence, but also explain to the satisfaction of the court the reason for the non-attendance. Apart from failure to show any evidence of the medical treatment, once the trial court found that no defence that had not been considered in the judgment, had been disclosed, there was no basis for setting aside the judgment.
It is true that the appellant in his statement of defence pleaded in paragraph 9 that the “plaintiff’s action is statute barred”. Apart from the fact that by his failure to attend court and to give evidence in support of the averment it remains nothing more than a mere averment, the documents filed by the respondent, especially the previous proceedings between the parties in respect of the subject-matter, show that the respondent instituted the present action on 22nd May, 2014, four months after the action in Suit No. FAL 189/14 entitled Rev. Guru Janakanda Amankwah vrs. Emmanuel Ray Quarcoo was struck out on 29th January, 2014. The learned trial judge referred to this fact in his judgment. This ground of appeal therefore fails as it has no merit.
With regard to the third ground of appeal about the judgment being perverse, and in breach of fair hearing, it was submitted on behalf of the appellant that as counsel failed to turn up despite the several hearing notices served on him, the court, in the interest of justice, should at least have made an order for personal service on the appellant and that failure to do so denied the appellant a hearing in the matter due to no fault of his. Referring to the case of Sappor v. Wigatab Ltd. [2007-2008] 1 S.C.G.L.R. 676 at 687, it was submitted on behalf of the appellant that since his counsel is clearly blameable for the state of affairs, his non-attendance in court, the remedy that should be granted him is to set aside the judgment and for the case to be heard as a matter of natural justice.
Learned counsel for the respondent, in reaction to the above submissions, referred to the cases of Republic v. Ghana Railway Corporation  G.L.R. 752 with particular reference to holding (2) in the headnote, and Lagudah v. Ghana Commercial Bank [2005-2006] S.C.G.L.R. 388 on the core idea implicit in the natural justice principle of audi alteram partem rule, and submitted that from the facts in this case, the principle had not been breached as the appellant abused all the opportunities given him to be heard. It was further submitted, on the authority of Samuel Kakraka Mensah v. Christopher Kwabla Ligbidi (supra) that having failed to utilise the opportunity given him to be heard, the appellant cannot be heard to say that he was denied a hearing.
From what transpired in this matter, not only did the trial judge give the appellant the opportunity to be heard, but was also patient with him, and went to great lengths to ensure that he was aware of the state of the case by directing court notes to be served on his counsel. This, the trial judge continued to do from January, 2015 to April, 2016 when he went on to hear the matter after satisfying himself that all the processes ordered to be served, have been served on counsel for the appellant, whose address, as indicated, was indicated on the entry of appearance as the address for service. In these circumstances, the appellant cannot complain of having been denied the right to be heard.
In Republic v. High Court (Human Rights Division), Accra; Ex Parte Akita  S.C.G.L.R. 374 at 384, Brobbey J.S.C. said on the right to be heard:
“A person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his or her own decision, to boycott proceedings, cannot later complain that the proceedings have proceeded without hearing him or her and the plead in aid, the audi alterem partem rule.”
Wood, C.J. on her part, in the case of State v. High Court (Fast Track Division) Ex Parte State Housing Co. Ltd. (No. 2)  S.C.G.L.R. 189 at 190, stated thus:
“A party who disables himself or herself from being heard in any proceedings, cannot later turn around and accuse an adjudicator of having breached the rules of natural justice.”
As to whether or not the appellant has any remedy in the circumstances, he no doubt has, as said in Sappor v. Wigatab (supra), but it is not to have the judgment set aside. Even though the court did not state what this remedy was, this can only be the right to pursue counsel for any damages or injuries suffered or sustained as a result of conduct of counsel and not a right to have the judgment set aside and the case heard. This is the only reasonable meaning to be placed on the right alluded to in the judgment since the court emphatically held that service on counsel was good service and that any argument about visiting the sins of counsel on the party was untenable. This ground of appeal also fails.
In his submission on the fourth ground of appeal about the trial judge having erred in not holding that the lands being claimed by the parties were different, learned counsel for the appellant contended that the respondent was not sure of the identity of his land as the description on the writ is different from that on the site plan. It was further submitted that as the site plan was also not signed, and thus void, it could not be the basis of a judgment having regard to the decision in Lizori v. Boye and School of Domestic Science and Catering [2013-2014] 2 S.C.G.L.R. 889.
Responding, it was submitted on behalf of the respondent that apart from the fact that the plan being relied on to say that the lands of the parties were different was only exhibited to the application to set aside the judgment, and was therefore not before the trial judge, as the appellant failed to file any documents to be relied upon, that enquires made by the police at the Lands Commission put the disputed land in the respondent.
Apart from the fact that it is not possible from the compass descriptions of the lands to say that they were different, as rightly submitted on behalf of the respondent, the document being relied upon for the assertion that the lands are different was not available and could not have been taken into account by the trial judge. This ground of appeal also fails as it has no merits.
Even though the appellant filed a fifth ground about the judgment and ruling being against the weight of evidence, he abandoned same, and rightly so as he failed to file documents to be relied upon as well as witness statement and cannot therefore use the affidavit evidence to argue that ground of appeal.
In sum therefore, the appeal fails and same is dismissed. Cost of Gh¢2,000.00 against the appellant for the respondent.