MICHELETTI & CO vs. DANIEL OFORI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL (CIVIL DIVISION)
    ACCRA - A.D 2017
MICHELETTI & CO - (Defendant / Appellant)
DANIEL OFORI - (Plaintiff / Respondent)

DATE:  20th JULY 2017
CIVIL APPEAL NO:  H1/154/2015
JUDGES:  SAMUEL MARFUL-SAU J.A. (PRESIDING), A.DORDZIE J.A, G. S. SUURBAAREH JA
LAWYERS:  KWAME AMINANO TANDOH DEFENDANT/APPELLANT
NICOLE-MARIE POKU FOR THE PLAINTIFF/RESPONDENT
JUDGMENT

DORDZIE, J.A.:

The action leading to this appeal was commenced in the High Court (Commercial Division) Accra by Daniel Ofori the respondent herein. By the averments in his statement of claim, he owns a piece of land at Shiashi, a suburb of Accra which he intended to develop into a three storey building.

 

The appellant, Micheletti & Co is a civil engineering and building company, he therefore approached the said company and one Ernesto Taricone for their services. The appellant and Taricone advised him to construct a nine storey instead of three because a nine storey would be more profitable. He expressed his inability to accept their advice because he did not have adequate resources for a nine storey building. The appellant and Taricone then proposed to partner with him to build the nine storey facility; which proposal he accepted.

 

As a commitment to the proposed joint project, he, in September 2008advanced a sum of USD265, 000.00 to the appellant subject to agreement on the specific details of the contract; but before a formal contract could be signed Taricone pulled out of the partnership.

 

Subsequently the appellant presented a draft contract which he approved, and they were ready to execute same in about March 2011; however in April 2011 the appellant wrote to him raising the contract price in the proposed agreement fromUSD4, 490,000.00 to USD5, and 060,848.84.

 

The parties failed to agree on the change in the contract price therefore the agreement was never executed and the project was abandoned.

 

The respondent further averred that he demanded a refund of the initial deposit of USD265, 000.00 he made. The appellant then sent him a bill of USD496, 000.00 claiming he spent the said amount on the project and demanded payment from the respondent. It is the respondent’s contention that though the parties agreed in principle to execute the project, they had not executed any formal contract, their discussions were subject to the execution of a formal contract.

 

In the action in the High Court therefore, the respondent was claiming a refund of the USD265, 000 he paid to the appellant plus interest from 3rd October 2011 till the day of final payment.

 

The appellant herein who was the defendant in the High Court entered appearance but failed to file a statement of defence within the statutory period. On 5th December 2012 the court below gave judgment in default of defence in favour of the respondent on his claims as endorsed on the writ of summons.

 

On the 24th of December the appellant filed a motion to set aside the default judgment. The court below heard the application on the 5th of February 2013 and gave a ruling the same day dismissing the application.

 

On the 11th of February 2013 the appellant applied to the court below for a review of its ruling dated 5th February 2013.

 

The review application was heard on the 8th of April 2013 and by a ruling on the same day the application was dismissed. By the record, the appellant filed a notice of appeal on the 10th of April 2013 against the ruling on the review application; it however appears that appeal had been abandoned. The notice of appeal which is the subject matter before us now was also filed on the sameday but it is against the default judgment delivered on the 5th of December 2012.

 

Grounds of Appeal:

 

The grounds of appeal canvassed by the appellant are:

 

The judgment is against the weight of evidence.

 

The learned trial judge erred when he failed to adjourn plaintiff’s application for judgment in default of defence in the absence of defendant and its lawyers.

 

The learned trial judge failed to exercise his discretion properly.

 

The reliefs the appellant is seeking from this court are: a) to set aside the ruling of the court dated 5th February 2013, and

 

b) to grant the application to set aside the default judgment.

 

The record has written submissions filed by the parties in respect of preliminary legal objection taken by the respondent. Our attention has been drawn to the fact that this court differently constituted had determined the issues raised by the notice of preliminary objection. It would have been appropriate to make the decision of the court on those issues part of the record but the record before us presently misses the said decision.

 

The first ground of appeal, which is that the decision of the trial court does not support the evidence on record, obviously is not an appropriate ground of appeal in a circumstance where no evidence was adduced at the trial; the judgment which is the subject matter of this appeal was given in default of defence. The law is firmly settled on what a ground of appeal alleging the evidence on record not supporting the decision of the court presupposes; the preposition is that there are pieces of evidence on record which the court failed to consider which if considered the decision would have gone in the appellant’s favour; in view of this preposition, the appellate court is required to re-examine the entire evidence placed on the record and come to its own conclusion on a preponderance of the probabilities. The Supreme Court decision in Tuakwa v Bosom [2001-2002]SCGLR 61 and recently in Oppong Kofi v Attibrukusu III[2011]1SCGLR 176are part of numerous authorities supporting this position.

 

A further requirement that ought to be fulfilled by the appellant in order to succeed on this ground is to properly demonstrate the lapses he is complaining of. (See the case of Abbey & Others v Antwi [2010] SCGLR 17). The appellant has failed to fulfill this requirement in arguing the appeal.

 

The circumstance in which the judgment in question in this appeal was obtained is very clear. The defendant failed to file a defence, this means pleadings were not closed let alone any evidence taken. The plaintiff/respondent by motion applied and obtained final judgment in default of defence under Order13 rule 1 of C. I. 47. It is therefore absurd to canvass the omnibus ground of appeal that the judgment is not supported by the evidence on record.

 

This first ground of appeal we find to be a misconception, it lacks merit, and ought to be dismissed. In the case of Asamoah v Marfo [2011] SCGLR 832 the appellant in a similar circumstance of appealing against a judgment obtained in default of pleadings, made the omnibus ground one of his grounds of appeal the Supreme Court did not hesitate to dismiss the said ground as unmeritorious. We hold a similar opinion and hereby dismiss the first ground of appeal

 

The submissions of learned counsel for the appellant on the second and the third grounds, which he argued together are that at the hearing of the plaintiff’s application for default judgment when the judge detected a defect in the title of the supporting affidavit and allowed the mistake to be corrected under Order 20 Rule 7 of C. I. 47, he should have adjourned the matter for the copy of the process served on counsel for the defendant to be corrected. Failure to do so amounts to an improper exercise of discretion.

 

Counsel conceded that he as counsel was served with the application but his argument is that after the correction the defendant should have been served personally.

 

Counsel by this argument is not challenging service of the writ on the defendant; the defendant had accepted service and caused his counsel to enter appearance on his behalf. The notice of entry of appearance bears the defendant’s as well as his counsel’s occupational and residential addresses. The defendant’s is as follows:

 

Micheletti & co Limited,

 

Head Office, Pantang Hospital Road

 

PMB CT 281, Cantoments, Accra

 

And his counsel’s address is provided as:

 

Peasah Boadu & Co

 

3rd Floor Gulf House, Airport West, Accra

 

Upon entering appearance unconditionally the defendant failed to file a statement of defence within the statutory period. At the hearing of the application for default judgment, the defendant and his counsel failed to appear in court. Counsel for the defendant appellant as I have already indicated concedes that he was served with the application. By my understanding of his argument he is not challenging the service of the application on him as counsel, but his position is that when the judge as it were, granted leave to the plaintiff respondent to use the supporting affidavit irrespective of an irregularity in its form, the court should have adjourned the matter for the defendant’s copy of the affidavit which was served on counsel to be corrected. Counsel has not provided any legal basis for this argument and we do not consider this to be a valid argument.

 

Order 20 Rule 7 of the High Court (Civil Procedure) Rules, 2004 C. I. 47

 

Provides: “An affidavit may with leave of the Court be filed or used in evidence notwithstanding any irregularity in its form.”

 

The motion paper to which the defective affidavit was attached has the heading “Application for judgment in default of defence against the defendant Order 13 r1 of C. I. 47”

 

The supporting affidavit however is headed: “Affidavit in support of application for summary judgment”.

 

The substance of the application is clearly stated in the motion paper, it is an application for judgment in default of defence. The mistake in the heading of the accompanying affidavit does not affect the substance of the application. The court in such a circumstance is permitted to allow the use of an affidavit which is defective only in form. The court below did not err in any way in so doing.

 

The 2nd and 3rdgrounds of appeal we find have no merit either and ought to be dismissed.

 

We however deem it important to take a close look at the effect of the judgment obtained by the respondent in view of the nature of the claims endorsed on the writ of summons.

 

By the motion paper the application for judgment in default of defence was brought under Order 13 rule 1 of the High Court (Civil Procedure) Rules, 2004 C. I. 47 which reads:

 

(1) “Where the plaintiff's claim against a defendant is for a liquidated demand only, and the defendant fails to file a defence to the claim, the plaintiff may, after the expiration of the period fixed by these Rules for filing the defence, apply, to enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against other defendants, if any.”

 

The endorsement on the writ of summons is not for a liquidated demand only. The plaintiff / respondent’s first claim endorsed on the writ of summons is:‘A declaration that the parties having failed to agree on the execution of the nine storey project plaintiff is entitled to a refund of his money in the sum of USD265,000.00 from the defendant.’

 

By this first endorsement the plaintiff seeks a declaratory order from the court. The plaintiff in applying for the default judgment did not indicate that he was abandoning this first claim, rather the body of the motion paper reads: “….Plaintiff/Applicant herein praying this honourable court for judgment against the defendant in default of defence for the reliefs endorsed on plaintiff/applicant’s writ of summons.”(Emphasis mine)

 

That being the case the appropriate rules under which the application would have been brought are Order 13 rules 1 and 6.

 

Rule 1 of Order 13 takes care of claims in liquidated demands only.

 

Rules 1-4 of Order 13 make provision for the procedure the court must follow in application for judgment in default of defence where the claim is: as stated in rule 1 ‘liquidated demand’ in rule 2 ‘unliquidated demand’, in rule 3 ‘claim in detinue’ and in rule 4 ‘claim for possession of immovable property.’

 

Rule 5 makes provision for mixed claims and it reads:

 

“Mixed claims

5. Where the plaintiff makes against a defendant two or more claims to which rules 1 to 4 apply and does not make any other claim, and the defendant fails to file a defence to the claim, the plaintiff may, after the expiration of the period fixed by these Rules for filing the defence, apply to enter against the defendant such judgment in respect of the claim as the plaintiff would be entitled to enter under those rules, and proceed with the action against other defendants, if any.”

 

Rules 1-4 is not applicable to the plaintiff’s claim for declaration, the said claim therefore can only be considered under Rule 6 which takes care of claims not specifically provided for by the preceding rules.

 

Rule 6 provides as follows:

 

Other claims

6. (1) “Where the plaintiff makes against a defendant a claim of a description not mentioned in rules 1 to 4 and the defendant fails to file a defence to the claim, the plaintiff may, after the expiration of the period fixed by these Rules for filing the defence, apply to the Court for judgment.

(2) On the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to by the statement of claim of the plaintiff.”

 

The opening sentence of the judgment of the trial court reads “Motion on notice for judgment in default of defence granted as prayed” the prayer of the plaintiff in the application is for the court to give judgment on the reliefs endorsed on the writ of summons. The court in deed granted default judgment on both reliefs under Order 13 rule 1 and went further to give final judgment for the recovery of the liquidated amount indicated on the writ.

 

The court is perfectly right in granting final judgment in respect of the liquidated amount in accordance with Order 13 rule 1.

 

However the other claim of the plaintiff which seeks a declaratory order could only be determined under Order 13 rule 6.

 

The position of the law is that declaratory orders can only be made after evidence had been taken by the court.

 

In the case of Republic v High Court Accra; Exparte Osafo [2011] 2SCGLR 966 the Supreme Court restated this position of the law when it analyzed Order 13 rule 6 (2) of C. I. 47 and held that rule 6 (2) is a confirmation of the settled practice of the court that the court does not make declarations without hearing the parties. The court per Gbadegbe JSC at page 972 held as follows:“we think that since declarations belong to a particular class or type of relief that may be allowed by a court in favour of a party, the use of the words ‘such judgment as the plaintiff appears entitled to..’ in Order 13 r 6(2) of the High Court (Civil Procedure) Rules, 2004 C.I. 47 means that in making such orders the judge before whom the application is placed should take into account matters, such as, for example, the practice of the court that regulates the exercise of the power conferred on him. In the instant case we think that before making a declaratory order or judgment, the court should receive evidence from the parties in the matter as it appears from the statements alluded to which we accept as correct exposition on the practice of the court in such matters.”

 

The first endorsement of the plaintiff on the writ of summons cannot be granted by an application for default judgment under order 13rule 1. The court therefore erred in granting the first relief endorsed on the writ of summons under the said Order 13 rule 1. The default judgment granted in that relief is hereby set aside.

 

The plaintiff / respondent may pursue that claim in the trial court if he so desires. However an application for default judgment in respect of such a relief can only be brought under Order 13 rule 6(2) and not Order 13 rule 1. The court would have to take his evidence based on his statement of claim and make the necessary declarations as deemed fit.

 

On the other hand, we find the grounds of appeal lack merit, the appeal is hereby dismissed in its entirety.

 

(Sgd.)

AGNES M. A. DORDZIE

(JUSTICE OF APPEAL)

 

(Sgd.)

Marful-Sau, (J. A.)     I agree       SAMUEL MARFUL-SAU

(JUSTICE OF APPEAL)

 

(Sgd.)

Suurbaareh, (J. A.)   I also agree     GBIEL S. SUURBAAREH

(JUSTICE OF APPEAL)

 

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