IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
JAMES KOFI SASE & 3 ORS - (Plaintiffs/Respondents)
THE COMMISSIONER GENERAL GHANA REVENUE AUTHORITY & 2 ORS -(Defendants/Appellants)
DATE: 22 ND NOVEMBER, 2018
CIVIL APPEAL NO: H1/143/2018
JUDGES: OWUSU J.A. (PRESIDING), LOVELACE-JOHNSON J.A., KWOFIE J.A.
THOMAS HUGHES FOR PLAINTIFFS/RESPONDENTS
AKAWARI ATINDEM (ASA) FOR DEFENDANTS/APPELLANTS
MARIAMA OWUSU, J.A.:
This is an appeal against the ruling of the High Court, Accra, dated 18th of February, 2018. In the said ruling, the High Court granted summary judgment in favour of the plaintiffs for the recovery of the sum of three hundred and thirty Ghana cedis (Gh¢330,000) from the defendants with interest at the prevailing bank rate.
Dissatisfied with the decision of the High Court, the defendant appealed to the Court of Appeal on the following ground:
“The learned trial Judge erred when he entered summary judgment in favour of the plaintiffs when the 1st co-defendant/appellant had filed a statement of defence indicating triable issues”
The reliefs sought from the Court of Appeal are:
a. That the entire summary judgment granted in favour of the plaintiffs be set aside.
b. That the learned trial Judge be ordered to conduct a full trial of the case.
The facts leading to the judgment in contention are as follows:
The plaintiffs/respondents herein referred to as plaintiffs claim against the defendants/appellants herein referred to as defendants.
i. Recovery of 13,200 pieces of mixed white wood or its value Gh¢330,000.
ii. Damages of Gh¢5,000.00 per day per truck from the 8th August, 2011 to date of final release i.e. 15th November, 2011.
iii. Full costs recovery including legal fees.
In the 17-paragraph amended statement of claim, the plaintiffs averred that, they are owners and transporters of about ten (10) trucks of lumber. That sometime in August, 2011, the plaintiffs were transporting mixed white wood from Techiman to Burkina Faso. The plaintiffs averred further that, it obtained the necessary permit from the Timber Industry Development Division after paying the required commission of 1.5%.
On reaching Hamile, the defendant seized the plaintiffs’ trucks, confiscated them and charged them before the District Court, Wa. The District Court, Wa, ordered the plaintiffs’ trucks to be released to them because the plaintiffs had already paid the penalty. The plaintiffs were thus released. The plaintiffs continued that in spite of the order of the District Court, the defendant has failed and or refused to release the trucks to the plaintiffs even though the plaintiffs’ drivers were later released. It is the case of the plaintiffs that despite several demands including one from their counsel, the defendant has failed and refused to obey the court’s order to release the trucks and timber to them. They concluded that, upon the institution of this writ, the trucks were released but not the timber hence this action.
On 22nd February, 2012, the defendant applied to join the National Security and the Forestry Commission as 1st and 2nd co-defendant. In its statement of defence, the 1st co-defendant averred that, the timber was confiscated because it is chain sawn lumber which is illegal to possess. It continued that, the National Security Coordinator has instituted an enquiry into the transaction concerning the lumber and the circumstances under which it was acquired by the plaintiffs and the Committee was yet to submit its report. It concluded that plaintiffs were in possession of chain saw timber which is illegal contrary to the Timber Resources Management Regulations 1998, L. I. 1649.
See the statement of defence filed on behalf of 1st co-defendant on the 16th April, 2012.
Then on 21st May, 2012, the plaintiffs filed motion on notice for an order for the sale of the wood products the subject matter of the case under order 25 rule 1 of C. I. 47. This application was granted on 20th of June, 2012 when the trial court ruled as follows:
“The application for the sale of the wood the subject matter of this suit is granted as prayed for. It is ordered that the sale be carried out by the Registrar of this Court in the presence of the representatives of all parties to this suit.
The Registrar shall deposit any money realized from the sale in an interest-bearing account after taking account of all legitimate expenses including his commission if any, pending the final determination of this suit or other orders.
The application for summary judgment is adjourned to 16th July, 2012 at 10:00 am. Hearing notices to the defendants.”
Meanwhile, the defendant opposed the application for summary judgment insisting that there are triable issue looking at its statement of defence.
On 18th February, 2013, the trial court granted the plaintiffs summary judgment as follows:
“Summary judgment is hereby entered for plaintiffs for the recovery of the sum of Gh¢334,000 being the value of mixed white wood wrongfully seized by the 1st and 2nd defendants. The said sum shall bear interest at the statutory rate from today, 18th February, 2013 till the final payment. The claim for damages is struck out as abandoned. I award plaintiffs cost of fifteen thousand (Gh¢15,000.00) Ghana cedis.”
It is this judgment that is on appeal before us.
In arguing the appeal, counsel for the 1st co-defendant argued that from the statement of defence of the latter, it averred that an investigation had been commissioned in respect of the matter and the committee was yet to come out with its report. Thus, the issue to be determined is whether the lumber which had been confiscated by the National Security was chain sawn lumber, the possession of which contravened the law. Counsel continued that, a summary judgment is entered by a court for one party against another party without a full trial on the basis of statements and evidence presented in the legal pleadings and documents to the material facts of the case to be tried. In other words, where there are no triable issues of facts.
Counsel argued that the theory behind summary judgment process is to eliminate the need to try settled factual issues and to decide without trial the cause of action. She cited the cases of Asamoah Vs. Marfo  2 SCGLR 832, 837, Hawa Hausa Vs. Fori  GLR, Sanunu Vs. Salifu  SCGLR 586, 590-591 and Yartel Boat Building @ Co. Ltd. Vs. Annan  2 GLR 11 @ 14 to buttress her point. Counsel also referred to Order 14 of C. I. 47 as well as the case of Atlanta Timber Co. Vrs. Victoria Timber Co. Ltd.  1 GLR 221 holdings 1 and 2 thereof and submitted that, at the heart of the defence is that, the lumber that had been confiscated by National Security Council was chain sawn lumber the possession of which is prohibited by law and this was sufficient indication that the defendant had a defence to the action which the trial Judge should have considered and allowed the matter to proceed to a trial.
Consequently, the trial Judge ought to have given the defendants the opportunity to be heard by conducting a full trial of the case. Counsel conceded that initially the 1st defendant seized the trucks containing the lumber for the failure to pay the 1.5% commission that is, the prescribed taxes on the lumber products. However, according to counsel, the payment of the said commission does not absolve the plaintiffs from their liability and illegality as provided for in Section 41 of the Timber Resources Management Regulations,  (L. I. 1649) which provides for “offences and penalties”. Counsel for the defendants concluded that from the statement of defence, is the sale or to offer for sale lumber cut with a chainsaw contrary to regulation 32 (2) of L. I. 1649 which is in contention here and this is an entirely different offence, the plaintiffs have not been tried on. Therefore, it was necessary for the trial High Court Judge to allow the suit to follow its normal course in order to dispense with the issue of legality of the possession of the plaintiffs of the chain sawn lumber. She therefore concluded that on the basis of the legal authorities discussed above, there is a triable issue which the trial court must determine on its merits and invited us to set aside the summary judgment and remit to the trial court this case for a trial.
In response to the submissions of counsel for the defendants, counsel for the plaintiffs referred to the only ground of appeal filed and argued that by that ground, the defendants believed there were issues which needed evidence to be led in order to determine the issues that arose out of the pleadings and yet the trial Judge wrongly disallowed a trial when evidence has not been led to prove those issues. He continued that, despite the citing of authorities properly on the conditions of grant of summary judgment, the defendants failed to show what issue needed evidence to be led on in this particular suit. The sole basis of the defendants’ opposition to the judgment when same was moved is that the lumber had been seized because its possession was prohibited by law. Counsel continued that, the relevant law, L. I. 1649 of 1998 was in evidence and the trial Judge ruled on it. Giving the facts of the case, counsel for the plaintiffs argued, the latter were compelled to institute the present suit as owners and transporters of trucks of lumber. When transporting the lumber from Techiman to Burkina Faso the plaintiffs obtained the necessary permits from the Timber Industry Development Division and notified the Regional Commissioner of Customs for the necessary clearance. On reaching Hamile, their trucks together with the lumber were confiscated and the drivers charged before the District Court, Wa. The charge was “Transfer and Movement of Lumber without Conveyance Certificate. The plaintiffs pleaded guilty and they were discharged having shown the court receipts for the payment of penalty for the offence they were charged with. The District Court also ordered their trucks and lumber to be released to them.
The defendants failed to comply with this order and the plaintiffs were compelled to write to the Commissioner General of Customs for the release of the trucks. The Commissioner General acknowledged receipt of the letter and stated that the matter was under investigation. When still there was no release of the trucks and the lumber, the respondents issued this writ of summons which has culminated in this appeal. Counsel for the plaintiffs then submitted that the only basis of the defence is that the latter were in possession of illegal chainsaw lumber and therefore their possession was illegal. Counsel argued that the trial Judge in ruling on the application for summary judgment had the benefit of the Legislative Instrument 1649 and came to the conclusion that the defendants claim was a ruse since the L. I. did not prescribe the possession of illegal chainsaw lumber as illegal, neither could they establish that the plaintiffs’ lumber was illegally procured. After setting out Section 41 of L. I. 1649 (Act 547) which creates the Offences and Penalties in Act 524, counsel submitted that any authority to seize the trucks and lumber was wrong. Consequently, the seizure by the defendants of the lumber was not only arbitrary but also unlawful. This is because plaintiffs paid the required commission to the Timber Industry Development Division (TIDD) of 1.5% to the Forest Products Inspection Bureau, and a receipt was duly obtained.
Secondly, the plaintiffs paid to Ghana Commercial Bank, fifteen thousand Ghana cedis (Gh¢15,000.00) to the Timber Industry Division and obtained a special permit from customs to transport the lumber and trucks to Burkina Faso. Thirdly, counsel submitted, even if the lumber was illegal, it is the court that decides on punishment and not the defendant and lastly, the defendants charged the plaintiffs with transporting lumber and not illegal chainsaw. Counsel concluded that if the lumber was illegal, the plaintiffs would have been charged as well for that offence. Based on the foregoing, counsel for the plaintiffs submitted that the trial Judge was right in granting the order for summary judgment and invited us to dismiss the appeal.
Order 14 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 deals with summary judgment.
Order 14 (1) provides that:
“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.”
In the case of Sanunu Vs. Salifu  SCGLR, 586. It was held that;
“Under Order 14 rule 1 of the High Court (Civil Procedure) rules, 2004, C. I. 47, a trial Judge must come to the conclusion that on the face of the plaintiff’s claim, there is no defence to the action. Thus, 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 (our emphasis).
The Supreme Court explained what constitute summary judgment in the case of Asamoah Vs. Marfo  2 SCGLR 832, 837. In holding (2) of the head notes, it stated:
“A summary judgment is a judgment on the merits even thought it is obtained by a formal motion without a plenary trial. It is judgment granted on the simple grounds that the respondent to the application has no defence to the action or part thereof or any reasonable defence to be allowed to contest the case on the merits to waste time and expense.”
Relating the cases referred to supra to the case under consideration, the defendants arrested the plaintiffs and charged them with transporting lumber without Conveyance Certificate. This offence is captured under Section 41 (1) (c) of the Legislative Instrument 1649, Act 524. The section provides that:
a. Any person who-
b. is found moving or in possession of any timber without a conveyance certificate in respect of the product contrary to sub-regulation (1) of regulation 24 (1) commits an offence and is liable on summary conviction to a fine not exceeding 5 million or to imprisonment for a term not exceeding twelve months or both and where the offence continues to a fine not exceeding 100,000.00 for every day or part of a day which the offence continues.”
From the record of appeal, the plaintiffs were charged with the offence: “Transfer and movement of lumber without Conveyance Certificate contrary to Section 2 (1) of Timber Resources Management Regulation Act 547, 1998 (L. I. 1649) as amended by Timber Resources Management Amendment Regulation Act 2003 (L. I. 172).”
They pleaded guilty to the offence charged.
The court then held:
“BY COURT: Accused persons pleaded guilty and have shown receipts of penalty they have already paid (sic) on the lumber. They are therefore discharged as it will mean being punished twice for the same offence.
CEPS by this order should allow the following vehicles; AS 906 V, AS 910 V, AS 908 V, AW 43 W, AS 9752 W, AS 907 V, BA 528 A, AS 6603 11K, GK 1781 BF, GR 4871 X to cross over with the lumber.”
This order of the trial Magistrate has not been appealed against. Now, the defendants in their defence say the plaintiffs were in possession of illegal lumber. The question is at what stage did the defendants realize the plaintiffs were in possession of illegal chain saw lumber? The law is that, no one should be vexed twice from the same offence. When the defendants arrested the plaintiffs and charged them with the offence of “Transfer and Movement of Lumber without Conveyance Certificate contrary to Section 2 (1) of Act 547, if they believed the lumber was chain saw and thus illegal to possess same, they should have charged the plaintiffs with same. Even the Section 32 (2) the defendants claim creates the offence of illegal possession of chain saw lumber does not create such an offence. The section provides:
“32 (1) No person shall use a chainsaw whether registered or unregistered to convert timber into lumber or other forest products for sale, exchange or any commercial purpose.
(2) No person shall sell or buy timber products to which sub-regulation(s) applies”
Having paid the requisite commission of 1.5% on the lumber prior to transporting same to Burkina Faso and having also obtained the necessary permits (see Exhibit ‘A’) from the Timber Industry Development, the defence of being in possession of illegal chainsaw lumber is a sham. The trial Judge was thus right in entering summary judgment for the plaintiffs for their claim as the defendants have no reasonable defence to plaintiffs’ claim. This is especially so when the Commissioner, Customs
Division, Ghana Revenue Authority on October, 2011 wrote to plaintiffs that, the matter was being investigated. As at 18th February, 2013 when summary judgment was entered for the plaintiffs nothing was said about the so-called investigation. In the circumstances, no useful purpose would be served in remitting the case to the High Court for a trial.
To do so would be an abuse of the process of the court commonly referred to as the rule in Henderson Vs. Henderson  Hare 100 which was referred to in the case of Eastern Alloys Co. Ltd. Vs. Silverstar Auto Ltd.  123 GMJ 19, 21 where the Supreme Court held that:
“…requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it might be finally decided (subject of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defence which they could have put forward for decision on the first occasion but failed to raise. (our emphasis). This doctrine is not based on the doctrine of res judicata in a narrow sense or even on a strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest of as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.”
We are aware the offence the defendant intends to charge the plaintiffs with is a criminal one, but the rational of the above case is also applicable to the case under consideration.
There is one issue we would address. From the record of appeal, the trial High Court on 20th June, 2012 on an application for the sale of the wood, the subject of this suit, granted the application and ordered the sale to be carried out by the Registrar of the Court in the presence of the representatives of all parties to the suit. He further ordered the Registrar to deposit any money realized from the sale into an interest-bearing account after taking account of all legitimate expenses including his commission if any pending the final determination of the suit.
See page 93 of the record of appeal. At page 103 of the record the Registrar of the Court, Mr. Rexford Gyimah had indicated that he paid thirty-eight thousand, four hundred Ghana cedis (Gh¢38,400) into court after the sale of the lumber to be paid into an income yielding account until the final determination of the suit. The letter was addressed to the Director of Finance, Judicial Service. This was on 14th January, 2013. That was before the summary judgment was entered in favour of plaintiffs on 18th February, 2013. This amount should have been taken into account and deducted from the amount awarded in the summary judgment.
The said amount is hereby deducted from the summary judgment awarded. With the exception of the above variation, the appeal fails and it is hereby dismissed.
[JUSTICE OF APPEAL]
LOVELACE-JOHNSON, (J.A.) I AGREE AVRIL LOVELACE-JOHNSON
[JUSTICE OF APPEAL]
KWOFIE, (J.A.) I ALSO AGREE HENRY KWOFIE
[JUSTICE OF APPEAL]