IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2017
GHANA COMMERCIAL BANK LTD - (Plaintiff/Respondent)
CHRIS TRADING STORE - (Defendant/Appellant)
DATE: 3RD MAY, 2017
CIVIL APPEAL NO: H1/30/2016
JUDGES: ADJEI J.A. (PRESIDING), SOWAH J.A., MENSAH J.A.
NICHOLAS ADDAE TWENEBOAH FOR DEFENDANT/APPELLANT
KWAME ASIEDU FOR PLAINTIFF/RESPONDENT
This appeal is from the Ruling of the High Court, Koforidua which set aside a previous order of the same court dismissing the plaintiff/respondents’ suit for want of prosecution.
The parties in this appeal will be referred to by their designations at the trial high court.
It is provided by the High Court (Civil Procedure) Rules 2004, C.I. 47, Order 36 rules 1 and 2 as follows:
“Failure to attend at trial:
(1)Where an action is called for trial and all the parties fail to attend, the trial Judge may strike the action off the trial list.
(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 failed 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.
Judgment given in absence of party may be set aside:
2. (1)A Judge may set aside or vary, on such terms as are just, a judgment obtained against a party who fails to attend at the trial.
(2)An application under this rule shall be made within fourteen days after the trial.
Order 80, Rule 4(1)(2) of the High Court (Civil Procedure) Rules 2004, C.I. 47 also provides as follows:
“Extension or reduction of time
4. (1) The Court may, on such terms as it thinks just, by order extend or reduce the period within which a person is required or authorized by these Rules, or by any judgment, order or direction, to do any act in any cause or matter.
(2) The Court may extend any such period although the application for extension is not made until after the expiration of that period.”
The plaintiff filed a writ of summons on 17th April 1998 seeking to recover from the defendant an amount of ¢77,368,991.31 being the balance outstanding of an overdraft facility and interest thereon from 31st March, 1998 to date of final judgment. In an amended statement of defence filed on 19th April 1999, the defendant denied the claim and counter-claimed as follows for an amount of money taken from his account by the plaintiff:
i. A declaration that at the time when the plaintiff took the said sum of ¢8,348,373.35 the defendant was not owing on the overdraft facility
ii. An order that the plaintiff do pay to the defendant the said sum of ¢8,348,373.35 together with interest at the prevailing bank rate from 2nd April, 1992 to date of final payment
Prior to the amendment, the defendant had filed a Third Party Notice directed at one Mr. Hutchful, a manager of plaintiff's bank claiming to be indemnified against plaintiff's claim. The basis of the third party notice was that the said manager had sold the defendant’s stationery in excess of the amount the plaintiff was claiming in the writ of summons and had not paid the proceeds into defendant’s account.
Summons for directions was re-filed on 8th February 2000 and then the plaintiff went to sleep. Over 7 years later on 24th September 2007, the defendant caused a Notice of intention to proceed to be filed under Order 37 Rule 3 of C.I.47. It is on the Record that the plaintiff was duly served with the Notice on the same day. [See page 47 of the Record] The third party was also served with the Notice by substituted service.
On 17th January 2008, the case was called. The defendant and the third party were present with their lawyers but the plaintiff was absent and neither was its counsel. A search Report showed that the plaintiff had been duly served with Hearing Notice on 6th December 2007 as well as on 16th November 2007. [See page 72 of the Record]. The court Coram Miezah J ruled as follows:
This suit is struck out for want of prosecution since the plaintiff has refused to prosecute its case.
The plaintiff has failed to prosecute this case so this action is dismissed under Order 36 Rule 1 (2) (d).
And it is further ordered that the defendant three title deeds covering properties situate in Koforidua be released to him forthwith. Cost of Gh¢2,000.00 against plaintiff in favour of defendant.”
More than 3 years and 4 months after the suit was dismissed, the plaintiff woke up from its slumber and on 15th June 2011 filed a “Motion on Notice for extension of time to set aside order (Order 80 R.4) and for Re-listment of the suit”.
The application was opposed by the defendant but in a Ruling delivered on 7th July 2011, plaintiff's application was granted. That Ruling is the subject of this appeal by the defendant/appellant who wants the Ruling to be set aside.
Grounds of Appeal:
The court erred when it failed to exercise its discretion judicially by setting aside the judgment of the High
Court dated the 17th day of January, 2008, dismissing the plaintiffs suit when there had been an inordinate delay in applying to set aside the said judgment.
Further grounds may be filed upon the receipt of the records of proceedings.
It is placed on record that the defendant did not file any additional ground.
Two main arguments are gleaned from the written submissions of defendants filed on 22nd July 2016 and the Reply to plaintiff's submissions filed on 30th January 2017.
The first relates to the reason given by the plaintiff as to why it failed to prosecute the case. It is contended that the reason given by the plaintiff in its affidavit in support of the Motion to set aside and relist is frivolous and ought not to have been countenanced by the court. Counsel submits that the failure of the plaintiff to give a reasonable explanation as to the persistent absence from court was fatal to the success of its Motion. Evans vs. Bartlam  AC 473; 2 All ER 646 at 651 H.L. and Agyeman vs. Ghana Railways and Ports Authority (1969) C.C. 60 cited.
The second argument relates to the inordinate delay by the plaintiff in bringing its Motion for extension of time to set aside and to re-list suit. Counsel contends that after the trial judge had made a finding and stated in his Ruling thus: “clearly therefore plaintiff's application for extension of time is woefully out of time”, it is strange that nevertheless the court decided to set aside the order of Miezah J. Citing Agyeman vs. Ghana Railways and Ports Authority (supra), it is submitted that the judge had exercised discretion in circumstances that amounted to injustice to the defendant.
Counsel further argues that the delay of 3 years and 4 months before applying to set aside Miezah J’s Ruling is an inordinate delay which makes the Motion brought an abuse of process and oppressive, and the trial court ought to have declined jurisdiction. Ampofo vs. Sampana [2003-04] SCGLR 1153 cited.
The responses of plaintiff’s counsel to these submissions are contained in his written submissions filed on 6th January 2017. Counsel concedes that the plaintiff delayed in prosecuting its claim. He also concedes that the plaintiff was served with the Notice of intention to proceed but was absent when the matter was called on 17th January 2007 and the suit struck out. Counsel further concedes that another Notice to proceed filed on 23rd November 2010 was served on Lawyer Donkor and Madam Serwah of the Bank at Accra, but it was not until 15th June 2011 that plaintiff filed its Motion which is the subject of the appeal.
Counsel however submits that the discretion exercised by the trial judge in setting aside the Orders of Miezah J is proper by virtue of Order 36 rule 2. He contends, relying on Republic Vs. Fast Track High Court, Accra, ex-parte Sian Goldfields Ltd [2008- 2009] SCGLR 204; 2 GLR 158 that the discretion cannot be interfered with unless it is shown to have been unfairly exercised.
Plaintiff’s counsel also contends that although order 36 rule 2 states that an application under that rule is to be brought within 14 days, that time period could be extended by the court by virtue of Order 80 rule 4(1) and (2).
Plaintiff's counsel finally submits on the authority of Mosi vs. Bagyina  1 GLR 337that the order of Miezah J to release the three title deeds was made without jurisdiction and thus a nullity which the trial judge properly reversed.
In response to this last argument, the defendant submits that Miezah J was right to make the order to release the documents in order to avoid a multiplicity of suits. He cites Hanna Asi (No. 2) vs. GIHOC Refrigeration & Household Products Ltd. (No. 2) [2007-2008] 1 SCGLR, 16
As the impugned Ruling clearly shows, plaintiffs' application was granted in the purported exercise of discretion under the rules of court quoted above. Thus what is in issue in this appeal is whether the discretion was exercised judicially.
It is trite that an appellate court would not interfere with the exercise of the trial court's discretion save in exceptional circumstances. Ballmoos vs. Mensah [1984-86] 1 GLR 724 CA
It is not open to a court to substitute its own discretion for that of the court whose discretion is being questioned if the discretion is exercised properly. See: Adu (per his lawful Attorney Akonnor) vs. Ghana Revenue Authority [2013-14] 2 SCGLR 1176
However, an appeal court has power to review the exercise of discretion by a trial judge. The law requires that it must be evident that in exercising its discretion, the trial court had failed or omitted to consider relevant material or had based its decision on extraneous material. The onus is on an appellant to demonstrate that the discretion was wrongly exercised. As this court per Kanyoke JA stated in the unreported case of Richard Addo Oppong & Lawrencia Addo Twum vs S.G.S. Ltd & anor Suit No. H1/152/09 dated 8th July 2010:
‘The law is clear that setting aside a judgment or an order of a court is entirely within the discretion of the trial court or judge and therefore where a judge has exercised his discretion and set aside or has refused to set aside a judgment or order, anybody who seeks to impugn that exercise of discretion, in order to succeed, must be able to show that either the exercise of that discretion was based on wrong principles of law or that it was exercised on wrong or inadequate principles or materials; or that the tria court acted or misapprehended the facts. It is however equally true that an appellate court like this one has the power and the jurisdiction to interfere with the exercise of a discretionary jurisdiction by a trial court if the above factors stated herein above are established. See dictum of Lord Atkin in Evans v. Bartlam (1937) A.C. 473, H.L. at 480, and the local cases of Brempong II v. Amofa (2001-2002) 2 S.C.G.L.R. 177, S.C. and Klimotechnik Engineering Ltd. v. Skanska Jensen International (2005-2006) S.C.G.L.R. 913 at 933, S.C.’
I will now proceed to consider the merits of the arguments for and against this appeal.
From the facts as narrated above, it is clear that the parties were all aware of the Notice filed by the defendant or had been served with hearing notices and yet the plaintiff failed to appear at the trial. The plaintiffs' case having then been dismissed in accordance with Order 36 rule 1(2)(b), the plaintiff had 14 days as per Order 36 rule 2 to apply to set aside the judgment thus obtained. Failing that, the plaintiff could make application under Order 80 for extension of time within which to bring the application to set aside. In order to be granted extension of time, the law requires the affidavit in support to give a reasonable and excusable explanation for the delay in applying within the time set out in the Rules.
In Eku Alias Condua III v. Acquaah  1 GLR 271, the Supreme Court adopted the dicta of Lush J. in Schafer v. Blyth  3 K.B. 140 at p. 143 and held that in an application for enlargement of time the sole question to be decided is whether or not the delay is reasonable, excusable or bona fide. In deciding that issue the court will have to take into consideration all the circumstances which led to the application.
In the State vs. Asantehene's Divisional Court B1; Ex Parte Kusada  2 GLR 238, the respondent raised certain objections in limine. He contended that since the appellant did not give reasons for the delay in applying for the writ, the learned judge should not have granted an extension of time and that in granting leave, he did not exercise his discretion judicially. He maintained that the purpose of filing an affidavit in support of an application was to enable the court to verify the facts alleged as reasons for delay. The Supreme Court agreed with the respondent and held that the unfettered discretion to grant an extension of time had not been properly exercised in that case because an applicant applying for extension of time must give good reasons why the application should be granted.
I will now look at the reasons offered by the plaintiff to support the application for extension of time.
In the affidavit filed on 15th June 2011, at paragraphs 9 and 10, the plaintiff gave as its excuse, that the case was being handled for the Bank by an external solicitor who was reporting directly to the Chief Legal Officer of the bank who had retired in 2009 and since died. That consequently, the plaintiff was not in a position to explain why the case was not prosecuted.
We think that it is preposterous for the plaintiff, a sole corporate of its stature, to suggest that because one of its officers retired, it completely lost sight of a case it had itself instituted. Even if this excuse is accepted, the question is: what did the plaintiff do when it was served with the Notice of intention to proceed on 24th September 2007? Nothing. Despite the service of this notice, no timeous action was taken by the plaintiff for another 3 years plus. On 23rd November 2010, the defendant filed another Notice to proceed which was duly served on the plaintiffs Koforidua as well as Accra offices on 25th and 23 November 2010 respectively. [See pages 52-54 of the Record.] The defendant thereafter on 10th June 2011 served an Entry of judgment on the plaintiff to release the title deeds covering properties at Koforidua. It was this last demand that prompted the plaintiff to bring the application for extension of time.
The court’s discretion has to be exercised fairly in the light of the facts and circumstances of each case, especially when an applicant’s failure to act in a timely manner will result in injustice to the other side, or the applicant deliberately delayed the processes to his advantage. In this present case, the plaintiffs' claim included interest until date of final payment, meaning that all the years that the plaintiff neglected prosecuting the case would be to plaintiffs' advantage and result in injustice to the defendant. Moreover according to the defendant, the third party who was an employee of the plaintiff cannot now be traced.
The trial judge examined the affidavits of the parties, made reference to the Order requiring an application of such nature to be made within 14 days and concluded in the Ruling on appeal as follows:
‘Clearly therefore the plaintiffs' who issued the writ of summons over 10 years ago before the suit was struck out have not shown much interest in prosecuting the case thus incurring the displeasure of my brother Miezah J...
Clearly therefore the plaintiff’s application for extension of time and for an order to set aside the order of Miezah J striking out/dismissing the plaintiffs' action is woefully out of time. Indeed, in the affidavit in opposition the defendant has contended that the 3-year delay on the part of the plaintiffs' is unreasonable. There is clearly justification for the defendants' contention. I have decided however to grant the application ...’
It is difficult to appreciate under which principle of law the trial judge decided to grant the application in the face of his own conclusions that the delay was unreasonable and woefully out of time. The only explanation we can assign is that the trial judge felt obliged to grant the application.
It appears such a perceived obligation is not uncommon because the Court of Appeal had occasion to give a caution in Lamptey vs. Hammond [1987-88] 1 GLR 327, where it was stated per curiam:
‘It is not in every case that the discretion to extend time, either under Order 64, r. 6 or Order 70, r. 1 of L.N. 140A, in respect of tardy applications should be favourably considered. Each application to extend time must be considered on its peculiar circumstances.’
In that case, the court was of the view that the delay of over three years and four months in bringing the application was too long and also the grounds or excuse given did not justify the long delay. There was not sufficient cause to have granted the application, and the application ought to have been dismissed. It was held that the judge exercised his discretion rather vaguely and on considerations of irrelevant and extraneous matters which greatly influenced him. Since the improper exercise of discretion by extending time and granting the application had resulted in injustice to the appellant, it was the duty of the Court of Appeal to interfere and set things right. Dictum of Lord Atkin in Evans v. Bartlam  A.C. 473 at 480-481, H.L. applied.
We agree with the conclusions expressed by the learned trial judge that clearly, the plaintiffs' application was woefully out of time. We are of the considered view that the delay in making the application was neither bona fide nor excusable so the application ought to have been dismissed as failing the test of showing a good reason for the delay in bringing the application.
In Sam vs. Noah & ors [1992-93] 1 GBR 261 which was in respect of an application for an order to relist appeal and for extension of time to fulfil the conditions of appeal, the Supreme Court noted that the applicants did not state when they became aware of the dismissal of the appeal. The court did not accept the appellants’ plea of illiteracy or alleged ill-health of which proof was lacking; as an excuse. It held that the delay of almost two years and three months in bringing the application was too long and the grounds or excuses could not justify the long delay. Besides, the appellants were not candid with the court in their explanation for the delay. Ratnam v Cumarasamy  1 WLR 8P.C and Revici v Prentice Hall Inc  1 WLR 157 C.A. cited.
Comparing the Sam vs. Noah case and the instant case on appeal where the Rules require an application for extension to be brought within 14 days, it is clear to us that the trial judge did not exercise discretion judicially when the application had been brought nearly 4 years after it ought to have, and without a reasonable explanation for the inordinate delay.
In Ratnam v Cumarasamy (supra), the Privy Council held as follows:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unlimited right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for litigation”
As to the arguments raised relating to the Order of Miezah J for title deeds to be released to the defendant, our brief response is this: It seems that Miezah J was exercising jurisdiction under order 36 rule 1(2)(c) of C.I. 47 in making that consequential order as plaintiffs' suit relating to the purported debt in respect of which the title deeds had apparently been deposited, had been dismissed. Further, the issue as to the merits of ruling delivered by Miezah J. is not before this court and we shall refrain from making any pronouncement.
In conclusion, we are of the view that the delay in making the application was inordinate and neither bona fide nor excusable. The plaintiff waited unreasonably long after the judgment was brought to its notice before attempting to set it aside, and the application ought to have been refused.
It is for the above reasons that the appeal succeeds, and the Ruling of the High Court dated 7th July 2011 is hereby set aside.