IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
KWASI ASAMOAH - (Plaintiff/Appellant)
MR. NSIAH AND AUGUSTINA MENSAH - (Defendants/Respondents)
DATE: 21ST DECEMBER, 2017
SUIT NO: H1/86/2016
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
COUNSEL FOR PLAINTIFF /APPELLANT- KWAME BOAKYE SARPONG
COUNSEL FOR DEFENDANTS /RESPONDENTS- SETH LAURENCE AKOTO
The Appellant commenced an action against the Respondent on 17th December 2009. His claims were for:
A declaration of title and recovery of possession of all that plot No. 163, Block C Abesim Dominase, Sunyani
General damages for trespass.
Perpetual injunction restraining the Defendants, their agents, assigns privies, servants etc. from in any way developing the disputed land.
The Defendant resisted the action and filed a defence and counterclaim. They counter-claimed for:
Declaration to tile, ownership, recovery and possession of all that Plot No. 163, Block ‘C’ Section 17, Abesim Dominase, Sunyani.
General Damages for trespass.
An Oder for perpetual injunction restraining the Plaintiff, his agents, family members, workmen, assigns etc. from dealing with or claiming exclusively the disputed plot in any manner or whatsoever.
On 1st June 2010, the court granted an application for interim injunction to restrain the Respondent from dealing with the disputed land pending the determination of the case.
Thereafter, a Reply and Defence to the Counterclaim was filed, and issues for trial were settled. On 16th December 2013, the case was set down for trial. The Appellant was present in court but his lawyer was absent, and the Appellant refused to testify in the absence of his counsel. After stating that the Plaintiff’s lawyer’s absence and the Plaintiff’s refusal to testify is the basis of his ruling, the court ruled dismissing the Plaintiff’s suit against the Defendant.
On 3rd January 2014, the Appellant filed a motion for review of the ruling of 16th December 2014. When the application was called, once again, the Appellant’s counsel was absent from court. The court struck out the application for want of prosecution on 13th March 2014.
The Appellant counsel filed a motion for relistment of the application for review and this was granted. The court then heard the application for review and dismissed it on 4th June 2014. The Judge’s main reason for dismissing the application is summed up in these words
‘Since the Plaintiff refused to open his case because his lawyer was absent the fact that he was present in my view did not make his case better than that of a Plaintiff who was absent. I believe order 36 rule 1 has been inserted into the rules to forestall situations where Plaintiffs try to unduly delay cases and the instant case is one. If counsel believes the court erred in law which I say is not apparent on the record has (sic) remedy is an appeal and not an application for review. The application is dismissed’
It is this ruling dismissing the application for review which has been appealed. The sole ground of appeal is that
That the trial judge erred in law when he dismissed the Plaintiff/Appellant’s motion for review of the court’s previous ruling in which it dismissed the Plaintiff/Appellant’s action for failing to give evidence while in court.
In this appeal, the contention of the lawyers for the parties is whether the court had power to review its decision dismissing the suit when Appellant refused to testify in the absence of his counsel. While the Respondent urged that the decision to dismiss the suit cannot be reviewed, Appellant counsel urged that the decision dismissing the suit may be reviewed, varied and set aside.
Appellant counsel quoted Order 42 Rule 1 and Order 36 rules 1 and 2 of the High Court Civil Procedure Rules 2004 CI 47 as the basis for his position. Order 42 deals with the grounds and procedures for filing for a review of a court order and Order 36 deals with orders a court may make if a party or parties fail to attend court when it is set down for trial.
Of particular relevance is Order 36 rule 2 (1) which reads:
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.
He argued that the combined effects of these two rules ‘is that the High Court has the power to set aside its order or judgment delivered under Order 36(1) and (2).’ He went to say that ‘respectfully, the judge was wrong for coming to the conclusion that the High Court had no power to review, vary or set aside the order dismissing the Plaintiff’s case.’
He went on to reiterate – this time expanding his original position with these words ‘By the combined effect of Order 36 rule (2) and Order 42 rule 1, the high court had the power to vary, review or set aside the said order of dismissal and make an order relisting the Plaintiff’s action… Since the Plaintiff’s action was dismissed without it being a judgment in default, it is an order which is subject to review, re-list, vary etc by the same court’
Counsel for Respondent disagreed. Quoting the decision of the Supreme Court in Akwaa 11 and others v Hagan and others 2007-2008 SCGLR 200 at 203 in which he said that the court distinguished between the concepts of ‘striking out’ and ‘dismissal’ of a suit, he submitted that as per its holding four, since the suit was not struck out but dismissed, it means that as between the parties, the dismissal creates a bar which would prevent any further proceedings unless permitted by statute.
Every appeal is by Rule 8 (1) of the Court of Appeal Rules 1997 CI 19, required to be a rehearing.
We have considered the submissions of both counsels to the court of appeal and the ruling of the learned trial judge and find that they all miss the unequivocal directions of CI 47. Whether an applicant files a motion for review under Order 42 or to set aside or vary a ruling under Order 36 rule 2, that application has to be filed within 14 days or it is incompetent.
Appellant counsel filed his application for review of the 16th December 2013 ruling on 3rd January 2014. This is a time lapse of 19 days. This exceeds the 14 days allowed by Order 42 rule 2 (2) to apply for a review of a judgment or order and allowed by Order 36 rule 2 (2) for applying to set aside or vary a judgment obtained against a party who failed to attend at the trial. If it is a final judgment, Order 42 rule 2 (3) allows three months to seek leave to apply for a review, but does not allow a review to be filed as of right after 14 days. So even in seeking a reversal of the dismissal of the Appellant’s suit, his counsel was once again late. He filed the process seeking the intervention of the court later than the rules of court allow.
The record and submissions also show that Appellant’s counsel is laboring under the misapprehension that a review under Order 42 is interchangeable with and may be combined with an application for a variation or setting aside of an order under Order 36.
In the application that sparked this appeal, the application is boldly captioned ‘MOTION ON NOTICE FOR REVIEW OF ORDER’. And yet in paragraph 8 of the supporting affidavit the Appellant stated
8. ‘That I am advised and I verily believe same to be true that under 42 (1) of CI 47 and Order 36 rules 1 and 2 of the same rules, this Honorable Court has power to review, vary or set aside the order dismissing this suit’.
When the application was relisted, his arguments found in the Judge’s ruling of 4th June 2014 is that the suit should not have been dismissed. He urged that since the Plaintiff was in court and failed to give evidence because his lawyer was not present, this was a mistake on the face of the record. He urged that on an interpretation of Order 36 rule 1 (a), this mistake on the record is what invoked Order 42 rule 1 and that ‘Order 42 rule 1 is the basis for this application’.
Then in arguing this appeal, he submitted that ‘By the combined effect of Order 36 rule (2) and Order 42 rule 1, the high court had the power to vary, review or set aside the said order of dismissal and make an order relisting the Plaintiff’s action…Since the Plaintiff’s action was dismissed without it being a judgment in default, it is an order which is subject to review, re-list, vary etc. by the same court’.
Without claiming to answer per curiam a question that has not been raised in this appeal, i. e. whether an application for review under Order 42 can be combined with an application to set aside or vary an order dismissing a suit under Order 36, it ought to be noted that the two rules of court deal with totally different situations and procedures in court.
While Order 42 deals with the circumstances under which the findings and reasoning of a ruling or judgment which has not been appealed against may be changed by the same court, Order 36 (2) gives a court discretion to set aside or vary an order dismissing a suit simply because a party was absent from court. In the Order 36 (2) situation, the court does not at all consider the facts or legalities of the case, but exercises discretion regarding the due conduct of the case. While under Order 42, a court considers the merits of the findings of fact or legalities of the case based on new evidence or corrections to the record.
There is a clear distinction between the two applications and the words ‘review’, ‘vary’ and ‘set aside’ cannot be lumped together in the strange manner that the Appellant counsel seems to do in the processes filed for the application and this appeal. Indeed, a judgment dismissing a Plaintiff’s suit for non-attendance constitutes a judgment against that Plaintiff, and Order 36 rules (2) (1) and (2) provide for a party who finds themselves in that unfortunate position to simply apply within fourteen days for the court to set aside or vary such a judgment.
Our humble appreciation of the record is that the ruling on appeal is a ruling on an application for review of the order dismissing the suit on 16th December 2013, and not a ruling on an application under Order 36 rule 2. This is because the intention of a ruling is found on the face of the application, and not from added material found in the supporting affidavits. Further, it was filed on 3rd January 2014 under the misapprehension that the dismissal of the suit on account of the Plaintiff’s refusal to testify in the absence of his counsel constituted a mistake on the face of the record and that mistake could provide ground for the review of the order. But that is a misconception of the law on civil procedure.
Third, as stated earlier, Order 42 provides a timeline for the filing of applications for review and the Appellant fell out of that timeline. Indeed it is to be noted that Respondent submitted in his affidavit in opposition filed at the onset of the application for review that ‘the statutory period within which the applicant ought to have filed for the review has long elapsed’. This is found in paragraph 5 of his affidavit found on page 50 of the Record of Appeal. No answer was given to this.
Since the application for review was inappropriate for the situation the Appellant found himself in, and filed out of time, it was incompetent and ought not to have been considered on any ground by the trial judge. The appeal is dismissed. Cost of One Thousand Ghana cedis (GH¢1,000.00) in favour of Defendants/Respondents.