IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2017
FAUSTINA GYANEWA - (Plaintiff/Appellant)
KWAHU SOUTH DISTRICT ASSEMBLY, MPRAESO KWAHU - (Defendant/Respondent)
DATE: 28TH FEBRUARY, 2017
SUIT NO: H1/03/2016
JUDGES: ADJEI J.A. (PRESIDING), SOWAH J.A., MENSAH J.A.
ANTWI ABANKWA ESQ. FOR THE PLAINTIFF/APPELLANT
MILLS ESQ. FOR THE DEFENDANT/RESPONDENT
This appeal emanates from the judgment of the Circuit Court, Mpraeso delivered on 1st June,2015. The Plaintiff/Appellant who will be referred to as the Plaintiff in this appeal does not challenge the Judgement entered by the trial Court except that she is dissatisfied with the fact that interest and cost were not awarded by the trial Circuit Court.
The Plaintiff is dissatisfied with the judgment on two grounds. The Plaintiff’s first dissatisfaction of the judgment was that the trial Judge failed to award interest when it was clear from the processes filed that the Defendant has been owing to the Plaintiff for barely six years and interest on the amount should have been awarded from 2009 when a demand was made for it. The Plaintiff’s second dissatisfaction with the judgment was that the trial Circuit Court Judge failed to award cost on the judgment sum.
The brief facts of the case which culminated in this appeal were that the Plaintiff sued the Defendant for the recovery of the sum GH5,903.00 being the cost of food and drinks supplied to the Defendant by the Plaintiff in 2009 which the Defendant willfully refused to pay despite repeated demands. The Plaintiff in her second relief claimed for interest on the amount from February,2009 to the date of final payment. The Defendant upon the service of his writ of summons and the statement of claim on
it entered appearance. The Defendant entered appearance on 31st December, 2014. However, on 16th March, 2015 the Plaintiff filed an application ex parte for judgment in default of appearance. In the application for judgment in default of appearance even though it was incompetent as the Defendant had entered appearance, the Plaintiff attached annexures to her application to satisfy the Court that the Defendant has not got any defence to her action. There is no evidence that the application for judgment in default of appearance was heard. On 23rd March, 2015 the Plaintiff filed an application for judgment in default of defence. The Defendant in its affidavit to oppose the judgment in default of defence admitted owing the Plaintiff an amount of GH5,903.00 and explained that it made a payment of GH2,000.00 to the Plaintiff on 30th June,2011 when the Plaintiff had not instituted the action against it. Furthermore, after the institution of the action by the Plaintiff, the Defendant paid an amount of GH3,300.00 on 25th January,2015 and the Defendant was at that time owing an amount of GH607.00. The Plaintiff purported to pray for leave of the trial Circuit Court to amend the endorsement on her writ of summons to reflect an amount of GH3,073.80 which the Defendant owed her at the time of the institution of the action. The legal effect of all the wrong processes filed by the Plaintiff will be discussed in the course of the appeal. The judgment in default of defence was not heard and the Plaintiff on 18th May,2015 applied for judgment on admission. It is the grant of the judgment on admission which is the subject matter of this appeal.
The two grounds of appeal filed by the Plaintiff are as follows:
“1. The Judge was wrong in saying that the interest be calculated on GH3,907 from January,2015 to date of final payment since the Defendant became indebted to Plaintiff since 1st January,2009.
2. The judgment was wrong in refusing to award costs against the Defendant”.
The Defendant has sought to challenge the competence of the appeal on the ground that the nature of the appeal is an interlocutory and the appeal should have been filed in accordance with the laws on interlocutory appeal. The judgment was delivered on 1st June,2015. The appeal against it was filed on 10th July,2015 and was therefore filed contrary to law and should be declared incompetent. Civil appeals from the Circuit Courts to the Court of Appeal are regulated by Section 11(3) of the Courts Act,1993(Act 459). It provides thus:
(3) The Court of Appeal shall have
a. jurisdiction to hear appeals from a judgment of a Circuit Court, in a civil cause or matter, and
b. In a cause or matter in which jurisdiction is conferred on the Court of Appeal under any other enactment.
4. A person aggrieved by a judgment of a Circuit Court in a Civil cause or matter may appeal against the judgment to the Court of Appeal.
5. A person aggrieved by an interlocutory order or decision made or given by a Circuit Court may appeal to the Court of Appeal against the order or decision with the leave of the Circuit Court and upon a refusal, with the leave of the Court of Appeal, and the Court of Appeal, has jurisdiction to heat and determine that appeal”.
The law is that an interlocutory appeal from the Circuit Court to the Court of Appeal is maintainable when leave is sought from the Circuit Court and upon refusal the leave of the Court of Appeal. When leave is refused by the Circuit Court, the potential appellant may seek leave of the Court of Appeal to appeal against same.
The timeliness or time limits for filing of civil appeals from the Circuit Courts to the Court of Appeal are regulated by Rule 9 of the Court of Appeal Rules, 1997 (C.I 19). The relevant provision on interlocutory appeals are as follows:
“9. (1) Subject to any other enactment governing appeals, an appeal shall not be brought after the expiration of
a. Twenty-one days, in the case of an appeal against an interlocutory decision, or
b. Three months, in the case of an appeal against a final decision unless the Court below or the Court extends the time.
2. The prescribed period within which an appeal may be brought shall be calculated from the date on the decision appealed against.
3. An appeal is brought when the notice of appeal is filed in the registry of the Court below”.
The combined effect of Section 11(3) of Act 459 and Rule 9 of C.I. 19 is that an interlocutory appeal in a civil matter from a Circuit Court to the Court of Appeal shall be filed with the leave granted by the Circuit Court and upon refusal with the leave of the Court of Appeal. Where such leave is granted and the appeal is not filed within twenty-one days, it shall lapse and that person shall lose his right on the interlocutory appeal in respect of that matter.
Interlocutory appeal from Circuit Court to the Court of Appeal are creature of statutes that is created by Section 11(3) of the Courts Act and Rule 9 of C.I. 19 and a person who fails to come within the time limits provided by the aforesaid laws shall lose his right of interlocutory appeal regarding that matter. It is a settled principle of law that an extension of time to appeal is not obtainable in interlocutory appeals in civil matters unlike final civil appeals in which provision has been made for enlargement of time within three months after the first three months which an appeal is filed as of right has lapsed.
The Plaintiff’s application was for judgment on admission and if granted will determine all the rights of the parties in the matter. The law is that any judgment or ruling which seeks to determine the final rights of the parties is a final judgment and an appeal which may be filed against such a judgment is a final appeal. On the other hand, a judgment is not a final one where the final rights of the parties are not determined. Additionally, all post judgments application and interpleader suits are interlocutory and an appeal filed against them is an interlocutory appeal. The Supreme Court in the case of Republic v High Court (Fast Track Division , Accra; ex parte (Koranten-Amoako interested party)  SCGLR 185 affirmed the common law principle which is used to determine whether an appeal is final or interlocutory. The Supreme Court quoted the Common Law position of
“interlocutory’ and ‘final’ orders as stated in Halsbury’s Law of England (4th ed) Vol 26, para 506 with approval in page 194 of the report thus:
“An order which does not deal with the final rights of the parties, but either(i) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment are to be worked out, is termed “interlocutory”.
We are satisfied that the ruling delivered by the trial Circuit Court on the application for judgment on admission finally disposed of the rights of the parties in the matter and an appeal against same is a final judgment. The objection raised by the Defendant is therefore dismissed as misconceived.
We now address ground (I) of the appeal. The Plaintiff filed her writ of summons on 19th December,2014 and claimed for the sum of GH5,903.00 and the interest thereon from February,2009. The Plaintiff filed judgment in default of appearance when the Defendant had entered appearance. The Plaintiff attached copies or annexures to the application for judgment in default of appearance. In a case of judgment in default of appearance, the first requirement imposed on the Plaintiff by law is to prove that the Defendant has failed to enter appearance within the time specified by law. The second requirement is the nature of judgment being sought for, that is, whether final or interlocutory judgment .Any default judgment assigned by a Court must be in consonance with the rules regulating that mode of judgment. Any judgment obtained in default of appearance or pleading must be obtained in accordance with law else it would be declared a nullity for having been obtained contrary to procedure except where the non-compliance relates to irregularity which is capable of being cured.
Apart from a search certificate conducted at the registry of the Court to disclose that a party has defaulted in filing an appearance or a pleading, exhibits proving that the party has not got defence to the action is unacceptable. The receipt attached to the application for judgment in default of appearance is not recognized by any rule of law or procedure. Where a court grants an interlocutory judgment in default of appearance or order that the case is to take its normal course, it is there that the Plaintiff shall be required to adduce evidence to prove his case on the preponderance of probabilities and not at the stage of the application.
However, where judgment in default is given against a Defendant and that Defendant seeks to set it aside, it is incumbent upon such Defendant to prove through his affidavit and annexures or exhibits that he has a defence to the action and the judgment should be set aside. In a claim for liquidated demand, the Plaintiff shall be entitled to final judgment for a sum not exceeding the amount endorsed on the Plaintiff’s without attaching evidence to show that the plaintiff has not got defence to the action. It is not judgment obtained on merits and exhibits disclosing absence of defence are not attached to the application. The condition precedent is that the writ of summons and statement of claim have been served on the Defendant and the Defendant has failed to enter appearance within eight days and the writ was served in the country. In case of notice of a writ served outside the jurisdictions, where the writ was served on an agent of principal outside Ghana upon the leave granted by a Court under Order 7 rule 13(2) stating the time within which an appearance is to be entered or where an order is made under Order 8 rule 4 and the courts grant leave for service out of jurisdiction and fixes time limit within which the defendant shall enter appearance upon service or where that time has been extended to the extended time by the Court. Order 9 Rule 5 of C.I. 47 provides time limited for entering of appearance in all cases and it is in default of filing of appearance that judgment in default of appearance may be entered. The motion ex parte for judgment in default of appearance filed by the Plaintiff when the Defendant had entered appearance within eight days after the Service of the writ was a nullity and not regulated by law.
The Plaintiff subsequently filed judgment in default of defence to claim for the sum of GH 5,900.00 when the Defendant had not filed its statement of defence. The Defendant filed an affidavit in opposition and deposed that it paid GH 2,000.00 of the debt on 30th June,2011 when the Plaintiff had not taken out the action in court. The Defendant further deposed that it made a payment of GH3,300.00 on 25th January,2015 when the suit was pending. The Defendant finally admitted that the amount it owed the Plaintiff was GH607.00. The trial Circuit Court did not determine the application for judgment in default of defence. The Plaintiff filed an application for amendment to amend her writ of summons to reflect the admissions made by the Defendant on its affidavit in opposition when pleadings have not closed. Order 16 rule 1 of C.I. 47 provides that a Plaintiff may without leave of the Court amend its writ once at any time before pleadings are closed.
The Plaintiff did not require leave to amend the endorsement on her writ when pleadings have not closed. The Plaintiff filed the application for leave to amend her writ when the Defendant has not even filed its defence and was therefore filed contrary to law. Order 16 rule 1 of C.I. 47 provides thus:
“The Plaintiff may, without leave of the Court, amend the Plaintiff’s writ once at any time before the pleadings are closed”.
We are of the considered opinion that the Plaintiff did not require the leave of the Circuit Court to amend her writ when the Defendant had not filed its statement of Defence. The motion was not heard and the amendment was not effected even though the Plaintiff was required by law to file it as of right. In the eyes of the law, the Plaintiff did not amend her writ and the notice to amend same will not constitute an amendment to the endorsement on the writ.
The Plaintiff filed an application for judgment on admission based on the admissions made by the Defendant on its affidavit in opposition filed to respond to the judgment in default of defence. The Plaintiff’s application for judgment on admissions was to claim for the amount of GH 607.00 which was outstanding. The trial Circuit Court Judge entered judgment on admission for GH3, 907.00 to include the amount the Defendant admitted paying into the registry of the trial Circuit Court after the institution of the action. The Defendant who did not file notice for variation of judgment in accordance with Rule 15 of the Court of Appeal Rules, C.I. 19 in its written submission sought to challenge the jurisdiction of the Court to enter judgment in respect of the money paid into the registry of the Court after the institution of this action. We hold that the Plaintiff could not challenge the Circuit Court’s jurisdiction for its failure to file notice for variation of judgment within one month after service of the appeal on it. Even though this Court has power under Rule 15 (3) of the Court of Appeal Rules, C.I. 19 to dis regard the omission to file notice for variation and raise the issue as a ground of appeal and grant an adjournment for the parties to address us on it. We are of the considered opinion that the ground is trivial and cannot be used to delay the judgment in the appeal.
The trial Circuit Court Judge cannot be faulted for having entered judgment to include the amount paid by the Defendant into Court during the pendency of the suit. A Court in its effort to make justice may invoke the omnibus clause on the motion paper to achieve effective justice that would avoid delays and unnecessary expense with the aim of finally and effectively resolving all matters in dispute between the parties. The trial Judge’s judgment was entered in accordance with Order 1 rule 2 of C.I.
47. It provides thus:
“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.
We are satisfied that the trial Judge acted within its jurisdiction when by necessary implication she invoked the omnibus ground on the motion for judgment to resolve the dispute between the parties without causing injustice to the parties. The essence of the omnibus provision on the motion paper which is normally stated as “And for any further order or orders as the Court may deem fit” is to give the courts the opportunity to do what is just within the circumstances of the application. The significance of the omnibus clause on motion paper is to help the courts to do justice to ensure that all matters in dispute between parties may be completely, effectively and finally determined to avoid delay and multiplicity of suits or applications as the case may be.
The trial Court Judge rightly referred to the affidavit in opposition filed by the Defendant to admit part of the Plaintiff’s claim in the application for judgment on admission. Order 23 (1) of the C. I. 47 which is on admission provides thus:
“A party to a cause or matter may give notice by that party’s pleadings or otherwise in writing, that the party admits the truth of the whole or any part of the case of any other party”.
Judgment on admission may be obtained when a party either in his pleadings or otherwise in writing had admitted the truth of the whole or any part of the case of any other party. The main requirement is that the admission to the whole or part of the matter in question must be unequivocal. We are satisfied that the judgment on admission entered by the trial Court to include the amount admitted in an affidavit on record was made in accordance with law.
The trial Circuit Judge failed to award interest on the judgment debt from the date the money became due and payable and made it to start from January, 2015 when the action had been instituted in Court. The Plaintiff on her endorsement was claiming for an interest on the amount from February, 2009. The Defendant did not dispute the question of interest and the trial Circuit Court Judge did not have justification to deny the Plaintiff an award of interest from the date the money became due and owing and which the Defendant refused to pay. The Plaintiff is entitled to interest on the judgment sum from 1st March, 2009 to the date of judgment in respect of GH609.00 as there is evidence on record to show that it was paid before the date of judgment. In respect of the sum of GH3,300.00 which the Plaintiff paid into Court on 25th February, 2015 the Plaintiff shall be entitled to interest at the current bank rate from 1st March,2009 to 25th January,2015.
The ground I of the appeal succeeds as the trial Circuit Court Judge failed to exercise her discretion in the award of cost in accordance with law. The award of cost is governed by Order 74 of C.I 47. A Court of law cannot waive cost arbitrary as costs are awarded to compensate the victorious party to cover the cost of filing of processes and reasonable remuneration for the party’s lawyer. Order 74 rule 2 which is on assessment of costs by Court provides thus:
“1. The amount of costs to be awarded shall be assessed by the Court.
2. Before any assessment, the parties or their lawyer’s may briefly address the Court on the question of costs.
3. Without pre judice to the powers and discretion of the Court, an award of costs shall ordinarily be designed to
a. compensate for expenses reasonably incurred and Court fees paid by the party in whose favour the award is made; and
b provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer”.
We are satisfied that the Plaintiff incurred reasonable expenses including filing fees, travel expenses from Obomeng Kwahu to the Circuit Court Mpraeso and the cost incurred by engaging the services of a lawyer. The Plaintiff’s residential address as could be seen from the proceedings is at Obomeng-Kwahu and had to commute from there to the Circuit Court, Mpraeso. Even though the law is that costs is in the discretion of the Court, it does not vest absolute power in the Court to waive cost where it is deserved to be awarded. This discretionary powers vested in Court in awarding cost is to have full power to determine the person who is entitled to it and to what extent the costs are to be paid and not to refuse it where the victorious party deserves it. The ground 2 of the appeal also succeeds and we award costs of GH500.00 in favour of the Plaintiff.
The appeal succeeds in its entirety and the judgment of the trial Circuit Court is varied in terms of interest to be paid on the judgment debt and cost.