IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
ISSIFU AYARIGA - (1ST Defendant/Appellant) FATI AYARIGA - (2ND Defendant)
MICHAEL PUTO SUGRE - (Pliantiff/Respondent)
DATE: 21ST DECEMBER, 2017
CIVIL APPEAL NO: H1/59/2017
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
BRIGETTE AKATTAH FOR 1ST DEFENDANT/APPELLANT
NANA SAKYIWAA FOR PLAINTIFF/RESPONDENT
The sole issue for resolution in this appeal is whether or not trial judge conducted the trial in accordance with the provisions of Rule 1 of Order 36 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on “Proceedings at the Trial”. That rule is headed “Failure to attend at trial”. The rule provides:
“Subrule (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 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”.
In view of the fact that the issue to be resolved is procedural rather than factual, the gist of the facts of the case will suffice. In 2006, the 1st defendant/appellant sold his house No. Plot 44 Block “B”, East Tafo, Kumasi with sitting tenants to the plaintiff/respondent. The 2nd defendant, sister of the 1st defendant/appellant also lived in a two bedroom and a hall in the house free of charge. The 1st defendant/appellant introduced the plaintiff/respondent to the tenants as their new landlord. The tenants atoned tenancy to the plaintiff/respondent and he collected two years rent advance from some of them.
As regards the 2nd defendant, the 1st defendant/appellant rented a new apartment for her and led her in. Although 2nd defendant agreed to move into the new apartment, she failed to do so after a reasonable time. In April 2008 therefore, the 1st defendant/appellant and plaintiff/respondent jointly sued the 2nd defendant at the District Court, Kumasi for recovery of possession of the two bedrooms in her possession. But before then on 22nd February 2008, the plaintiff sued the 1st defendant in this action for the recovery of the purchase price of the house for failure to yield up possession of the house despite repeated demands.
However, in stating the number of the house bought in the writ of summons, the plaintiff described it as House No. Plot 23 Block 1, Asawasi Kumasi. The 1st defendant, who by himself entered appearance to the suit, denied that he sold the house with the number stated in the writ of summons to the plaintiff because he had never owned that house. He counter-claimed for damages of GH¢1,000.00 for defamation when the plaintiff caused his arrest on an absconding warrant. The 1st defendant also attached to his pleadings the District Court writ of summons and statement of claim.
On 12/02/09, the present counsel entered an appearance for the 1st defendant. Thereafter, the 2nd defendant through her counsel applied to be joined to the suit on the ground that she personally acquired the building plot and put up the house sold to the plaintiff by the 1st defendant. She thus claimed the house as the bona fide owner. Although 1st defendant opposed the motion, it was granted and the suit was adjourned to 14/06/09 for hearing. On 21/07/09, the plaintiff filed a motion ex parte to serve the order for joinder by substituted service. Although it was an ex parte motion, the court kept on ordering hearing notice on the defendant until the motion was granted on 24/02/11. Then followed another motion by the plaintiff to amend the writ of summons and statement of claim to state the correct number of house sold and to recover the purchase price from the two defendants jointly and severally. The motion was granted on 17/07/2011 in the absence of defendants. The suit was adjourned sine die (page 51 of Record of Appeal).
On 18/05/2012, a motion ex parte for substituted service of the amended writ of summons and statement of claim on 1st defendant was granted. The order and the process were to be posted and to remain amongst others on the door post of the 1st defendant for 14 days. The suit was not adjourned to any date. But on 4th March 2013, the court sat and heard the evidence of the plaintiff in the absence of the 1st defendant and his counsel. But plaintiff did not go far in his evidence because his counsel asked for an adjournment to produce the tenancy agreements he entered into with the sitting tenants. The suit was adjourned to 1/04/13 without an order for hearing notice on the 1st defendant and his counsel.
The suit however did not continue on that day because the new counsel for 2nd defendant filed a notice of change of solicitor and the plaintiff again filed a motion for leave to amend the reliefs endorsed on the writ of summons. On 16/04/13, plaintiff’s motion was granted. That day, Francis Coffie for Obeng Manu Jnr. For 1st and 2nd defendants was present. The suit was adjourned to 10/05/13 for hearing. But on 16/05/13, 2nd defendant’s counsel filed a motion for enlargement of time to file a statement of defence.
A copy of the motion and its annexures was not directed to be served on the 1st defendant or his counsel.
But on 24th May 2013, the 2nd defendant’s motion was granted in the absence of the 1st defendant and/or counsel. The suit was adjourned to 4/06/2013 again without a hearing notice ordered to be served on the 1st defendant and/or counsel. But it was not until 17th June 2013 that the court sat and the plaintiff/respondent continued his evidence, as usual in the absence of the 1st defendant and/or his counsel. Thereafter, the court heard the evidence of the 2nd defendant and her witnesses on different dates. There was never a day that the court ordered hearing notice to be served on either the 1st defendant or his counsel until judgment was delivered on 30th May, 2014.
From the record, there is a bailiff’s proof of service that on 30th May 2013, 2nd defendant’s statement of defence was served on counsel for the 1st defendant. That appeared to be the last process served on the 1st defendant’s counsel before the judgment a year later. Rightly as observed by the trial judge, the 1st defendant did not take part in the trial. He gave no reason or hasard any reason. In the judgment, the trial judge held that the disputed house was jointly owned by the 1st defendant and his sister, 2nd defendant and therefore the 1st defendant did not have capacity to sell it to the plaintiff. He set aside the sale and entered judgment for the plaintiff on his alternative claim of recovery of the purchase price of the house against the 1st defendant only.
The entry of judgment was served on the 1st defendant by substituted service. He appealed against the judgment on five substantive grounds. But in arguing the grounds of appeal counsel abandoned grounds (2) to (5) and rested his case on ground (1) only. The abandoned grounds of appeal are struck out. The complaint in the said ground (1) against the judgment is that:
“Neither the 1st defendant himself or (sic) his counsel were served with Hearing Notice either prior to the commencement of hearing or during the course of hearing thus breaching the Rules of Natural Justice by denying the 1st defendant the right to be heard due to non-notification of trial”.
The ground of appeal as it is framed is not too elegant as it appeared to be narrative and or argumentative contrary to rule 8(5) of C.I. 19, the Court of Appeal Rules. But then the import of the ground of appeal is clear to us and we will countenance it.
We understand the complaint of the 1st defendant/appellant to mean that he was denied the right to be heard and was in fact not heard. It is a breach of the audi alteram partem rule if established. The abandoned grounds of appeal attacked the merits of the case.
However, the principal relief sought by the 1st defendant/appellant from us is to set aside the judgment and order a re-trial of the suit. In view of the consistent stand of our courts that the breach of the rule rendered the proceedings a nullity, it serves no useful purpose to argue the merits of the case. In the case of the Republic vrs Court of Appeal, Anthony Thomford, Ex parte Ghana Chartered Institute of Bankers  39 GMJ 151, Atuguba JSC held that:
“The rule of audi alteram partem sounds in nullity. It is trite law that those rules are regarded as fundamental and jurisdictional and that the courts will read them into statutes though they be silent as to them”.
Similarly, in the Republic vrs The High Court, Accra; Ex parte Salloum & Ors.  36
GMJ 1, the Supreme Court per Anin Yeboah JSC said:
“The courts in Ghana and elsewhere seriously frown upon breaches of the audi alteram partem rule to the extent that no matter the merits of the case, its denial is seen as a basic fundamental error which should nullify proceedings made pursuant to the denial”.
In English law or at common law, the audi alteram partem rule is one of the two rules embedded in the concept of natural justice. The second rule is that an adjudicator must be disinterested and unbiased in any case before him (nemo judex in causa sua). In other words, no man must be a judge in his cause. The two rules of natural justice perform the function of the concept of procedural fairness in the American Constitution. And in our 1992 Constitution, Article 19 on “Fair Trial” echoed the same concept.
In our unreported judgment in Civil Appeal No. H1/54/2016 titled Raphael Cubagee [petitioner/appellant] vrs The National Democratic Congress [respondent/respondent], dated Tuesday, 27th June 2017 where the trial judge denied the petitioner/appellant who was unrepresented, the right of reply to the submissions of the respondent/respondent because he was not a lawyer, we discussed the meaning of audi alteram partem rule of natural justice and its scope. It is the same complaint against the judgment in this appeal too.
In that case, I referred to the three features of natural justice as identified by Lord Hudson in Ridge vrs Baldwin  2 All ER 66 when he stated at page 114 that:
“No one, I think disputes that three features of natural justice stand out – (i) the right to be heard by an unbiased tribunal, (ii) the right to have notice of charges of misconduct and (iii) the right to be heard in answer to the charges”.
By the provisions of the 1992 Constitution the courts and tribunals by their orders and decisions have the power to ascertain the rights of litigants, deprive persons found culpable of their liberty and/or impose financial burdens on persons found liable. The audi alteram partem rule thus enjoins the court/judge to hear both sides, give each party a chance to state his case and make sure that any person who will or may be affected by the decision has a right to “his day in court”. The observance of the principle is the foundation of the popular saying that justice must not only be done but must manifestly be seen to be done.
In the Cubagee case (supra), I also referred to the case of Philadelphia Co. vrs Securities and Exchange Commission  175 Fed. 2d 808 at 817, where the Supreme Court based on the Constitution of the United States of America and the Act of 1946 said in reference to the audi alteram partem rule that:
“Adjucatory action cannot be validly taken by any tribunal, whether judicial or administrative, except upon a hearing wherein each party shall have opportunity to know of the claims of his opponent, to hear the evidence introduced against him, to cross-examine witnesses, to introduce evidence in his own behalf and to make argument. This is a requirement of the due process clause of the Fifth Amendment of the Constitution”.
In this appeal the specific complaint of the 1st defendant appellant is that no hearing notice was served on him before the commencement of the trial. Secondly, there is no proof that the order for postage of copies of the amended writ of summons together with the amended statement of claim were actually posted at the places ordered by the court. Also during the hearing of the case, no notice was served on him indicating further hearing of the case. It is submission of the 1st defendant/appellant that the audi alteram partem rule has been violated in respect of him during the trial because apart from not knowing the plaintiff’s case against him as contained in the amended process, he was not notified of the commencement of the trial and the continuation of the trial up to the date of judgment.
I have noted from the record of appeal that the plaintiff/respondent applied and amended his writ of summons and statement of claim twice. Aside of that, there were other motions by the 2nd defendant for joinder and for enlargement of time to file statement of defence. In all these, 1st defendant and his counsel were present at the hearing of 2nd defendant’s motion for joinder (page 29 of record of appeal) and 1st defendant’s counsel alone was present at the hearing of the plaintiff/respondent’s second motion for leave to amend the writ of summons (see page 71 of Record of Appeal).
I also note that in all cases, the plaintiff/respondent’s amended processes were served on the 1st defendant/appellant by substituted service. In the same way, 2nd defendant’s processes were served on the 1st defendant/appellant by substituted service. Although the processes were ordered to last 14 days when posted, no date for hearing was indicated in the order and no hearing notices were ordered either.
From the record, plaintiff/respondent opened his case on 4th March 2013 before Justice Amissah-Koomson in the absence of the 1st defendant/appellant and or counsel but could not complete it. But before then the last sitting of the court was on 18th May 2012 with Justice E. Gyinae presiding. On that day, the court granted plaintiff/respondent leave to serve the amended writ of summons and statement of claim on 1st defendant/appellant by substituted service. There was no sitting by the court until the day the plaintiff/respondent opened his case. From the original docket, I noticed it was counsel for the plaintiff/respondent who applied for the case to be fixed for hearing but no hearing notice was served on the 1st defendant as requested.
On that day, the hearing was adjourned to 1st April 2013 for continuation. But the hearing could not continue because the plaintiff/respondent again filed a motion for leave to amend his writ of summons while the 2nd defendant also filed for enlargement of time to file statement of defence. On 24th May 2013, 2nd defendant’s motion was granted in the absence of the 1st defendant/appellant. The suit was also adjourned to 4th June 2013 without a hearing notice on the 1st defendant/appellant or counsel.
On that date, the court did not sit. Rather on 17th June 2013, the court sat and plaintiff/respondent continued his evidence in the absence of the 1st defendant/appellant. The suit was adjourned on that day to 26th June 2013 but heard on 24th July 2013 and thereafter on other days. In all cases the 1st defendant/appellant was absent but there was no order for hearing notice on him. This is the picture of the trial seen from the record of proceedings.
The general response of the plaintiff/respondent to the accusation by the 1st defendant/appellant that he had been denied the right to be heard is that, he failed to take advantage of his right to be heard and so he cannot turn around and invoke the principle of natural justice in his favour. In support of this response, counsel for the plaintiff/respondent cited the cases of the Republic vrs High Court (Fast Track Division);
Ex parte State Housing Co. Ltd. (No.2) Koranteng-Amoako Interested Party  SCGLR 185 at 190; Republic vrs High Court (Human Rights Division), Accra; Ex parte Josephine Akita (Mancell – Egala and A-G, Interested Parties)  SCGLR 374 and Others. At page 384 in the Egala case, the court said:
“a person who has been given the opportunity to be heard but deliberately spurned that opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have been proceeded without hearing him and then plead in aid the audi alteram partem rule”.
That position of the law is trite knowledge. For in In Re West Coast Dyeing Industry Ltd; Adams vrs Tandoh [1984/86] 2 GLR 561, CA, the court held that:
“The rule is that when a party is given opportunity to lead evidence in support of his stand or in defence of allegations against him but deliberately declines to avail himself of that opportunity, the court or tribunal will be entitled to proceed with the trial to conclusion and make deductions, draw conclusions or make findings on the basis of the evidence adduced at the trial”.
Specifically, plaintiff/respondent’s submission referred to proceedings on page 65 of the Record of Appeal when the plaintiff/respondent’s motion for leave to amend the statement of claim was moved and granted. In fact, that proceedings is on page 71 of the Record of Appeal. The submission continued that the suit was adjourned to 10/05/13 and the amended writ was served on the defendants, yet still 1st defendant/appellant failed to respond. The 1st defendant/appellant did not need to respond to the amended process if he did not find it necessary. We are concerned with the actual trial in this appeal. I have already noted that the trial did not proceed on 10/05/13 because the 2nd defendant filed an application for enlargement of time to file a statement of defence. Later, the plaintiff/respondent’s amended process was served on the 1st defendant/appellant by substitution. The 2nd defendant’s motion was granted 24/05/13 and as I noted the suit was adjourned to 4/06/13 in the absence of the 1st defendant/appellant but there was no sitting until 17/06/13.
I again noted earlier on that the plaintiff/respondent opened his case on 4/03/13 in the absence of the 1st defendant/appellant and/or counsel. Before that date the last sitting of the court was on 18/05/12 when the court granted an ex parte application for an order of substituted service. But on 4/03/13 before Justice Amissah-Koomson allowed the plaintiff/respondent to open his case he remarked:
“This is about the 4th time defendant’s counsel has failed to turn up. This case is ripe for hearing and court will hear him”.
That day was the first time the learned judge sat on the case. How and where he came by that conclusion that defendant’s counsel have been consistently absent is not borne out by the record which shows that the case was last mentioned over a year ago.
In the submission on behalf of the plaintiff/respondent, counsel contended that the trial was conducted in accordance with Order 36 of C.I. 47 and the judgment was therefore regularly obtained. I think the submission missed the point about compliance with Order 36 rule 1 of C.I. 47 in accordance with due process or what amounts to fair trial.
Admittedly, the 1st defendant/appellant or his counsel failed to attend court when most of those motions by the plaintiff/respondent and 2nd defendant were heard. The results of the grant of these motions were all served on him by substituted service. He failed to respond to any of them. But that is not the issue here because he is not obliged to so respond.
The issue is about whether or not when the plaintiff/respondent opened his case first on 4/03/13, the 1st defendant was notified and yet he failed to attend court. And then before the trial resumed on 17/06/13 and continued thereafter, he was notified and yet still he failed to attend court. That notification is proved by the existence of an order to serve hearing notice and proof of service of the hearing notice. The submission of the plaintiff/respondent is silent on the existence of any such evidence.
In Vasquez vrs Quarshie  GLR 63 at holding 3, the court held that:
“A court making a decision in a case where a party did not appear because he has not been notified would be doing an act which was a nullity on the ground of absence of jurisdiction”.
Order 35 rule 3 of the District Court Civil Procedure Rules, Cap 4 (1951 Rev.), Schedule II is the equivalent of Order 36 rule 1 of C.I. 47. The case of Karletse-Panin vrs Nuro  GLR 194, C.A. held that proceedings conducted in violation of the rule is a nullity. In that case the proceedings in the District Court Grade II were adjourned for the parties to attempt a settlement. After one year, the settlement failed and the plaintiff re-activated the case and in defendant’s absence, applied to the court for the case to proceed ex parte on affidavit evidence. The case was adjourned for affidavits to be filed but the court made no order directing that hearing notice be served on the defendant but his counsel was eventually served. On the return date, summary judgment was entered against the defendant.
On appeal by the defendant, this court held that the judgment of the magistrate was given without jurisdiction as it did not comply with the provisions of Order 35 rule 3 of Schedule of Cap 4. The appellate court set aside the judgment as it was null and void. In the words of Francois JA (as he then was):
“The fact that notice of adjourned date was not served on the defendant personally in compliance with the statutory directions in my view nullifies completely whatever occurred subsequently”.
In Accra Hearts of Oak vrs Ghana Football Association [1982/83] 1 GLR II, Roger Korsah J observed that before God condemned Adam and Eve when they disobeyed his commandment by eating the forbidden fruit, he gave them a hearing. Therefore it is not permissible to condemn a man behind his back, unless he had been given the opportunity to appear and he failed to avail himself of the opportunity.
35. Similarly, in Aidoo vrs Commissioner of Police (No.3)  GLR 354 at page 359, Ollennu JSC noted that the rule that no man shall be condemned without being given the opportunity to answer any complaint against him is not a settled rule of procedure of common law alone, but it is also part of the customary law jurisprudence of our heterogenous ethic groups. Graphically, he illustrated that the rule is embodied in the adage “tieni mienu” (hear both sides) amongst the Akans. “Ke anuu mo gbeianshishi le agbee le” (never condemn any one to death whose explanation you have not heard) for Gas and “ela manotsia awede menuneo/ela manotsia wo mewu ne o” (an animal is never killed without being offered water to drink).
36. In the Ghana Chartered Institute of Bankers case (supra), Atuguba JSC observed at pages 168/169 of the judgment that:
“In Ghana what clinches this issue (that is the fundamental importance of the observance of the audi alteram partem rule) is article 296 of the 1992 Constitution ….
The terms of this provision are mandatory and obviously require observance of the rules of natural justice, especially the audi alteram partem rule involved here. The rule has therefore been elevated to constitutional pedestal and its breach has the constitutional consequences laid down in articles 1 and 2 of the Constitution, namely such breach voids the act in question”.
37. From the record of appeal there is no evidence that the 1st defendant/appellant was at any time notified of the hearing date and he refused to attend court. I combed the original docket on the case and I found no such evidence. Although rule 1(1) of Order 36 permitted the court to proceed with the trial if the plaintiff appears and defendant is absent and vice versa, the permission is subject to the judicious exercise of the court’s discretion. Where the defendant was not notified of the hearing as appears in this case, proceeding to hear the plaintiff in the absence of the defendant cannot pass as a judicious exercise of the court’s discretion in the circumstance under the rule.
38. The effect is that the rule has not been complied with in the circumstances. It is a breach. It is a breach because the court failed to order the 1st defendant/appellant to be served with a hearing notice and satisfying itself that he had indeed been served.
By that failure or breach, the 1st defendant/appellant was denied the right to be heard. And since the breach is a breach of the audi alteram partem rule of natural justice and it is a breach which denied the court jurisdiction over the 1st defendant/appellant, the whole proceedings and judgment thereon is a nullity – see Republic vrs High Court, Accra; Ex parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) [2007/08] 2 SCGLR 1041, holding 1 in particular.
39. Accordingly, we uphold the sole ground of appeal as argued by the 1st defendant/appellant. Consequently, we set aside the judgment dated 30th May 2014 and grant relief (a) sought in the notice of appeal.