IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
AFRICAN AUTOMOBILE LTD. - (Defendant/Appellant)
ADDO ATUAH & CO. - (Plaintiff/Respondent)
DATE: 14TH DECEMBER, 2017
CIVIL APPEAL SUIT NO: H1/51/2017
JUDGES: KUSI-APPIAH (J.A). – PRESIDING, DZAMEFE (J.A.), SUURBAAREH (J.A.)
MS. VIVIAN TETTEH FOR DEFENDANT/APPELLANT
MS. FRANCISCA SERWAA BOATENG FOR PLAINTIFF/RESPONDENT
This is an appeal against the judgment of the High Court (General Jurisdiction Division) Accra, dated
19th day of November, 2015, in favour of the Plaintiff/Respondent against the Defendant/Appellant.
I will refer to the parties in the manner they appeared at the court below.
By its amended writ and statement of claim filed on 10th day of November, 2014, the Plaintiff brought this action against the defendant for:
“(a) An order for recovery of the sum of GH¢36,029,835.99 and US$14,536 being the balance due and owning on account of professional legal services provided by the plaintiff to the defendant which sums remain unpaid despite several demands.
(b) Interest on the said sums at the going commercial Bank and US Dollar rate of exchange on the cedi and US Dollar respectively from the respective dates on which they fell due up to and inclusive of the date of final payment.
The case of the plaintiff as gathered from its pleadings and especially evidence at the trial is that, it is a limited liability company registered under the laws of Ghana and carries on business of rendering professional legal services to individuals and corporate bodies. The plaintiff avers that between 2007 and 2013, the defendant company engaged it to render professional services to the appellant in the recovery of debts in court, defence of law suits, and representation before constitutional and other statutory bodies among others.
According to the plaintiff, pursuant to the said engagement, it represented the defendant in numerous cases in court and Parliamentary hearings, giving rise to the appellant being indebted to plaintiff in the sum of GH¢36,029,835.99 and US$14,536.00.
It is the contention of the plaintiff that the defendant has failed to pay the said legal fees despite repeated demands through verbal requests and issuance of bills for payment. Hence, it issued the writ of summons herein against the defendant company.
For its part, the defendant, a limited liability company registered under the laws of Ghana to do business (for sale and distribution of automobiles, auto spare parts, and lubricants among other things) resisted the plaintiff’s claim by the amended statement of defence and counterclaim filed on 1st December, 2014. The gravamen of the defendant’s defence may be summed up as follows:
1. That it engaged the services of Addo Atuah Esq., as a lawyer from about 2006 to 2013 to represent it in some of its court cases, most of which were already pending matters and not Addo Atuah & Co; the plaintiff in this suit.
2. That it never engaged the professional services of Addo Atuah Esq. to advocate for its interest when the defendant was invited to appear before the Public Accounts Committee of Parliament on or about 4th and 5th July 2012.
3. That Addo Atuah Esq. appeared before the public Accounts Committee of Parliament on his own (interest) to clarify issues relating to his (solicitor’s) fees claimed and received from the defendant in cases before the Committee.
4. That in all its recovery cases, the defendant agreed with Lawyer Addo Atuah (and not the Plaintiff law firm) to levy his legal fees exigible in the matter as part of the reliefs to be indorsed on the Writ of Summons issued in those cases as costs inclusive of his legal fees as solicitor.
5. That the Plaintiff’s claims against the defendant Company are unwarranted because it never engaged the services of the plaintiff herein in any cause or matter.
6. That without any recourse to the defendant, Lawyer Addo Atuah arranged to receive cheques meant for the defendant as judgment debt payments from some of its judgment debtors, paid same into his accounts and unilaterally deducted huge sums as legal fees before remitting the rest to the defendant.
The defendant therefore counterclaim against the plaintiff as follows:
i. “A declaration that, the unilateral decision by lawyer Addo Atuah to direct that judgment debt payments meant for Defendant be effected in his law firm’s name before same was forwarded to Defendant by way of cheque issued by Plaintiff after it had made huge deductions it described as fees was fraudulent and thus unlawful.
ii. An order directed at Lawyer Addo Atuah and his law firm, plaintiff herein, to refund GH¢959,680.00 being monies found to have been fraudulently and unlawfully taken from the Defendant herein in 2010 by way of deductions from cheque payments wrongfully made out to it and GH¢222,341.00 erroneously paid to him/it by Defendant herein in the year 2011 respectively.
iii. Interest on the said sums at the prevailing commercial lending rate from 2012 till date of final payment.
iv. General and punitive damages.
v. Payment of GH¢100,000 as the legal costs of the suit herein.
vi. Any other relief(s) the Honourable Court considers just.”
The defendant company gave the particulars of fraud as follows:
“(1) Writing a letter to the Ministry of Finance for cheque payments due defendant to be routed through and/or issued in the name of plaintiff without any express authorization and/or consent from the Defendant Company herein.
(2) Deducting huge sums of monies as plaintiff’s supposed legal fees from those payments fraudulently paid to plaintiff and subsequently issuing cheques to Defendant as onward payment from plaintiff’s corporate account, when no such agreement exists between the parties herein to that effect.”
These claims were hotly disputed by the defendant herein. Issues thus joined, a plethora of them were thrown up for determination. A hearing was conducted by the High Court, Accra, which dismissed the defendant’s counterclaim, entered judgment for the plaintiff herein and granted almost all the reliefs sought by them.
Against this decision, the defendant has lodged this appeal. The grounds of appeal as contained in the
Notice of Appeal are as follows:
“(a) The trial judge erred in law when he upheld the plaintiff’s contention that the challenge to the propriety of the Writ and Statement of claim as the originating process in a lawyer’s claim for recovery of fees under the Legal Professional Act, 1960, (Act 32) was a departure of (sic) Defendant’s pleadings.
(b) The trial judge erred when he rejected a (sic) binding case of Jonah vrs. Kulendi & Kulendi (2013–2014) SCG LR 272 in his assessment of the propriety of the Writ commencing the suit.
(c) The trial judge erred when he failed to consider the law guiding the fees to be charged by a lawyer as set out in sections 28 and 29 of the Legal Profession Act, 1960 or in the alternative,
The court erred in failing to refer the matter to a referee to determine the amount owed (if any) in spite of the fact that the defendant was hotly contesting the amount the plaintiff was claiming.
(d) That the amount of fees awarded to the plaintiff was excessive.
(e) The court erred when it held that there was a binding agreement between the parties as to the rate of fees to be charged by the plaintiff.
(f) The trial judge was in error in the exercise of his discretion when he refused a plea for an adjournment and closed the case of the Defendant who has (sic) presented a medical certificate of health explaining his inability to be in court.
(g) The trial court also erred when it denied the Defendant an opportunity to open his defence after the court had declared the Defendant as waiving his right to cross examine the plaintiff thus denying him a fair hearing.
(h) The judgment is against the weight of the evidence that was before the court.
(i) The cost awarded to the plaintiff is excessive.
(j) Further grounds of appeal may be filed upon the receipt of the record of appeal.”
Nine grounds of appeal were filed by the defendant (appellant) but to us the issue in this appeal is a very narrow one of: whether the trial High Court breached the principles of natural justice (i.e. the audi alteram partem rule) and if so, whether the judgment is null and void.
In any case, counsel for the appellant in his written submission specifically argued grounds (f), (g) and only. The rest of the grounds were either abandoned or argued under the general ground of appeal which was ground (h) that the judgment was against the weight of evidence adduced at the trial.
In this appeal, I will take grounds (f) and (g) together as the same were argued together by counsel for the appellant in the written submission.
The trial Judge was in error in the exercise of his discretion when he refused a plea for an adjournment and closed the case of the defendant who has presented a medical certificate of health explaining his inability to be in court.
The trial court also erred when it denied the defendant an opportunity as waiving his right to cross examine the plaintiff thus denying him a fair hearing.”
In arguing these grounds of appeal, counsel for the defendant/appellant made recourse to the record of proceedings and submitted that the trial court denied the defendant the opportunity to be heard, to prosecute and defend its case. Counsel painstakingly gave the chronology of the sitting of the trial court and the relevant ones are set out as follows:
a. On 22nd June, 2015 the evidence in chief of Addo Atuah Esquire, the representative of the plaintiff ended. Counsel for the defendant Gustav Addington Esquire, commenced cross-examination by apparently sealing the mouth of plaintiff’s representative. The case was adjourned to 9th July, 2015 for continuation of cross-examination. (page 224 of the record).
b. On 7th July, 2015, Gustav Addington Esquire, filed a Notice of Withdrawal of Service, indicating that he had withdrawn his services and that all future processes in the suit should be served personally on the defendant per its Chief Executive Officer, Mr. M. S. Hijazi.
c. On 9th July, 2015, when the suit came on, these were the entries at page 225 A of the record;
“Plaintiff represented by Isaac A.
Defendant represented by Clement Theo
Mrs. Francisca Serwah Boateng for plaintiff present
Counsel for defendant absent
Counsel for plaintiff pray for her witness to be discharged. xxxxxxxxx
By Court: Plaintiff representative discharged. Case adjourned to 14th July, 2015 at 10:00 am for continuation.”
Counsel for the defendant further submitted that although the learned trial judge was aware of the existence of the notice of withdrawal of services filed earlier by Gustav Addington Esquire before the hearing or adjourned date, he went ahead to accede to the request of counsel for the plaintiff and proceeded to discharge the plaintiff’s witness who was in the witness box for cross-examination.
He contended that the proper course was for the trial judge to have adjourned the matter and direct or order the defendant to seek the services of a new counsel on or before the next adjourned date to enable the matter to proceed, failure in which the defendant would be ordered to continue cross-examining the plaintiff’s representative by its Chief Executive Officer or his representative.
On the decision of the court to close the case of defendant, counsel for the defendant argued that the learned trial judge by his actions ended up exercising his discretion arbitrarily and capriciously in the manner he closed the case of the defendant.
In the view of counsel, the discharge of plaintiff’s star witness, then in the witness box, coupled with the closure of the defendant’s case by the trial court, denied the defendant not only the opportunity to put its case across through cross-examination but also amounted to an infraction of the rules of natural justice, particularly the audi alteram partem principle which require a party to be given ample opportunity to be heard and to prosecute its case.
Counsel concluded that non-compliance with the audi alteram partem rule not only occasioned a substantial miscarriage of justice but also resulted in nullity. He therefore invited the court to set aside the judgment of the trial court and remit the matter back to the High Court differently constituted to be heard de novo.
Counsel for the defendant cited several cases to buttress his submission including:
1. Effisah Vrs. Ansah (2005-2006) SCGLR 943
2. R. Vrs. Sussex Justices, Exparte McCarthy (1924) 1 K. B. 256
3. Pobee, Tufuhene Elect of Apam Vrs. Yoyoo (2013-2014) 1 SCGLR 208 at 217
In response to the above submissions, counsel for the plaintiff submitted that the trial Judge was right when he refused a plea for an adjournment and closed the case of the defendant in view of the conduct of the defendant and its counsel, a conduct that was aimed at delaying the trial of the case.
Learned counsel contended that the defendant is a Limited Liability Company registered under the Companies Act, 1963 (Act 179) and as such, acts through its officers, directors and duly appointed employees. Consequently, the plaintiff found it intriguing that the defendant company was relying on a letter from one Mohammed Hijazi that he was indisposed and could not appear in court and wanted an adjournment, when the said Hijazi was neither the defendant in the suit nor was on record as representing the defendant.
Counsel argued that if the defendant was minded in prosecuting its defence and counterclaim, it could have done so through any of its officers and employees who appeared on record as representing the defendant throughout the proceedings including Sarah Smith – a Director, Harrison Teye – an Accountant and signatory to most of the Exhibits and Clement Tiyo (misspelt as Theo).
Counsel for the plaintiff further submitted that it is within the learned trial Judge’s discretion to close the defendant’s case after it became obvious that the defendant was tactfully and deliberately delaying the hearing of the case by changing its counsel as it pleased and refusing to put forward a witness to give evidence on its behalf.
He maintained that adjournments are subject to the convenience of trial courts and that it was only when an adjournment has been refused on illegitimate grounds that an appellate court was bound in the interest of justice to interfere. In counsel’s view, the defendant has not alluded to any instance or circumstance tainting the trial Judge’s exercise of discretion with illegitimacy in the instant appeal.
The effect of counsel for plaintiff’s submission is that the appellant herein denied itself the opportunity to be heard and defend its case. And that all what the trial Judge did in the instant case was only to enforce the Civil Procedure Rules, which regulated civil proceedings in our courts.
Counsel is thus enabled to argue that the defendant/appellant who disables itself from being heard in the proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice. He therefore invited the court to dismiss these grounds of appeal as same have no foundation.
Counsel for the plaintiff cited the following cases to support his contention:
1. Republic Vrs. High Court (Fast Track Division) Accra, Exparte Sian Goldfields Ltd. (Aurex Management and Investment AG/SA Interested Party) (2009) SCGLR 2004 holding 1.
2. Republic Vrs. High Court (Fast Track Division) Accra, Exparte State Housing, Co. Ltd. (No. 2) Koranteng Amoako Interested Party (2009) SCGLR 185 holding 1.
In this appeal, the basic issue herein is whether the trial Judge breached the rules of natural justice. The defendant company complained that the rules of natural justice were breached by the trial Judge when he denied it the right to cross examine the plaintiff’s representative, then in the witness box as well as denying the defendant the opportunity to open its defence or put its case across, thus denying the defendant fair hearing. But the plaintiff contended otherwise. So, what does the evidence say?
In this case, the undisputed facts before the court are that Mr. Gustav Addington, counsel for the defendant who sealed the mouth of plaintiff’s representative/witness on 22nd June, 2015, had notified the court of withdrawal of his services to the defendant on 7th July, 2015, that is two (2) days before the next adjourned date of 9th July, 2015. The defendant was then obliged to engage another counsel who should be appraised of the evidence before the court to continue with proceedings.
On 9th July, 2015, when the case came on for hearing, the defendant was not represented by counsel.
At page 225 A of the record of appeal, the trial court on 9th July, 2015, discharged the plaintiff’s representative in the witness box at the instance of counsel for the plaintiff.
The whole arguments before me boil down to whether in discharging the plaintiff’s representative in the witness box, the trial Judge exercised his discretion wrongly, and if so, whether this appellate court is entitled to review it.
Order 36 r. 1 (2) of C. I. 47 which covers a situation where the party is aware of the proceedings but fails to appear provides:
“(2) where an action is called for trial and a party fails to attend, the trial Judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.
(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim if any or
(c) make such other Order as is just.”
Under these rules (Order 36 r. 1 (2) of C. I. 47), the trial Judge is empowered to conduct proceedings in the absence of a party. The trial Judge, under the same rules is empowered to dismiss the counterclaim of the absentee defendant and proceed to call the plaintiff to prove the claim.
My understanding of the xphrase, allow the plaintiff to prove the claim means or implies that the plaintiff gives evidence, calls his witness(es) to support his case. Thereafter, the defendant is permitted by law to cross-examine the plaintiff and his witness(es) whether the defendant’s counterclaim is dismissed or not.
It is pertinent to note that the right of cross-examination given to a party as provided by the relevant rules of court, cannot be forfeited or waived by the trial Judge unless, the party fails to cross-examine when called upon by the trial court to do so.
On the facts, the learned trial Judge must have been aware of the withdrawal of services of defendant’s counsel two (2) days before the hearing on 9th July, 2015. In such circumstances, two (2) scenarios open to the learned trial Judge are:
1. To adjourn the matter to enable the defendant engage another counsel to continue with proceedings, or
2. To order the defendant to continue with the cross-examination of plaintiff’s representative by itself.
But none of these was adhered to by the trial Judge. After discharging plaintiff’s representative, the court adjourned the case to 14th July, 2015 at 10:00 am for continuation.
It appears to me that the learned trial Judge was under impression that the withdrawal of services by defendant’s counsel on the eve of the hearing date was another attempt to delay proceedings. And if the trial Judge was minded to continue with the case, all that the trial court needed to do was to order the defendant’s representative in court on 9th July, 2015, one Clement Tiyo, to proceed with the cross-examination of plaintiff’s representative in the witness box. It is only when Clement Tiyo had failed to comply with that order that the learned trial Judge could have proceeded to discharge the plaintiff’s witness.
Indeed, there is nothing on record of appeal indicating that the trial Judge, prior to the discharge of the plaintiff’s representative, offered the defendant the opportunity to conduct further cross-examination by itself.
It is my view that, if the learned trial Judge had given due weight to these considerations, he ought to have readily granted an adjournment on 9th July, 2015 to enable the defendant engage a new counsel on or before the next adjourned date for the matter to proceed, failure in which the defendant would be ordered to continue cross-examining the plaintiff’s representative by its Chief Executive Officer or his representative.
In any case, the trial Judge undoubtedly must have been aware that his refusal to adjourn the case on 9th July, 2015 and his discharge of plaintiff’s representative from the witness box, would work injustice on the defendant.
In depriving the defendant its right to cross-examination so as to put its case across, the trial Judge denied the defendant not only an adequate defence but also occasioned a miscarriage of justice.
Simply put, the proceedings on 9th July, 2015 constitute a denial of justice because the defendant company was denied the right to be represented by counsel and also to be heard.
I find that the trial Judge’s discretion on 9th July, 2015 was wrongly exercised.
The next issue to consider is whether the defendant was denied the opportunity to open its defence. Under this ground of appeal, the defendant/appellant attacked the judgment of the trial court on the footing that it erred when it refused to take evidence from the appellant to establish whether the appellant engaged lawyer Addo Ataah Esquire or the plaintiff & co. and whether the defendant owns the plaintiff the amount it is claiming. Counsel for the defendant contended that the trial Judge did not observe the principles of natural justice, when he denied the defendant the right to defend its case.
On 24th July, 2015 when the suit came on these were the orders made by the trial court at page 225 C of the record:
“BY COURT: I have had the occasion to warn the defendant’s representative in court of the need to continue with the matter with dispatch. Accordingly, I would close their case and direct the parties in the case to file their written addresses or (sic) before 30th September, 2015. Case adjourned to 23rd October, 2015 for judgment (Emphasis mine)”
The learned trial Judge either by design or omission did not assign any reason(s) for the order(s) he made on 24th July, 2015 as stated above. There is nothing on the record to suggest that the plaintiff has closed its case to warrant an order to the defendant to open its case. Besides, the discharge of the plaintiff’s representative by the court is not conclusive of the fact that plaintiff had closed its case. The learned trial Judge ought to have enquired from the plaintiff whether it was calling another witness to testify on its behalf or was closing its case. Then the plaintiff per its counsel would have indicated to the court either of the two and same would have been recorded by the learned trial Judge.
In the case of Darke IV Vrs. Darke IX and another (1981) GLR 144-152 C. A.; this court stressed the importance of the need to give full reasons for a decision or judgment when it said:
“The reasons serve the purpose of a kindly light on the dark paths of litigants. The reasons serve as a warning to lawyers as to what they are likely to be up against. The reasons provide for Judges a wealth of information to guard and guide them all for the efficient administration of justice.”
In the instant case, nothing of this sort occurred and yet the learned trial Judge proceeded to close the case of the defendant. Worse still, no where in the record was the defendant ordered to open its defence but yet its case has been closed by the learned trial Judge. With all due respect to learned trial Judge, his lamentations and frustrations as indicated in his orders dated 24th July, 2015 is in no way suggestive of the fact that defendant had opened its case or had been ordered to open its case and was delaying in doing so.
I must say that in the quest for speedy trials, the fundamental tenets of justice including procedural rules cannot be overlooked or abused by trial courts. In the case of R. Vrs. Sussex Justices, Exparte McCarthy (1924) 1 K. B. 256, Lord Heward C. J. had this to say:
“It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”
The importance of a court receiving evidence from parties in a case cannot be over emphasized. A good evidence (from a party) may provide a Judge a clear mental vision to perceive either the tenuousness in what had appeared impregnable or to see through the veneer and discover the hard core of a party’s case.
In this appeal, I entirely agree with the submission of learned counsel for the appellant that the discharge of respondent’s star witness without cross-examination, coupled with the closure of the appellant’s case without any opportunity to defend itself by the trial Judge, denied the appellant not only the opportunity to put its case across but also amounted to a breach of the rules of natural justice, particularly the audi alteram partem principle which require a party to be given ample opportunity to be heard and prosecute its case. Simply put, non-compliance with the audi alteram partem rule not only occasioned miscarriage of justice but also resulted in nullity as the defendant was driven away from judgment seat by the learned trial Judge.
In the case of In Re Kumi (deceased); Kumi Vrs. Nartey (2007-2008) 1 SCGLR 623 at 628, the
Supreme Court held inter alia that:
“…It is trite law that a person cannot be found guilty or liable by an order or judgment unless he had been given fair notice of the trial or proceeding to enable him to appear and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances, is, in our view, a nullity. Where proceedings are a nullity, they are automatically void and any person affected by them can apply to have them set aside ex debito justiciar.”
Guided by the above principle of law, I hold that since the trial Judge failed to apply the rules of civil procedure and natural justice in this case, the entire proceedings resulted in nullity.
In the result, we will allow the appeal, set aside the judgment of the trial court including all consequential owners, etc. and remit the matter to the High Court differently constituted for the case to be heard de no vo.
We would refrain from considering the other grounds of appeal since to do so might tend to prejudice the outcome of the hearing of the case de no vo.