SUMMARY JUDGMENT - RULING

Introduction:

[1] This is an application by Plaintiff/Applicant filed on January 22, 2019 herein praying that summary judgment be entered against the Defendant/Respondent for the following:-

a. The recovery of GH¢166,012.57, being the amount owed by the Defendant as at 1st January 2018 for the goods supplied it by the Plaintiff;

b. Interest on the sum of GH¢166,012.57, at the prevailing interbank interest rate from 2nd January 2018 till date of final payment; and

c. Costs.

[2] The grounds upon which the instant application is premised are catalogued in a 20 paragraph supporting affidavit of Kwesi Boateng Tamakloe accompanying the motion paper. The thrust of the Plaintiff/Applicant’s case is that the Applicant entered into a Chemical Supply Agreement with the Respondent to supply it with products for the year commencing 1st January 2016. A copy of the agreement was attached as Exhibit KBT1. According to the Applicant by the terms of the agreement the Respondent was supposed to make payments within thirty days from the date of receipt of invoices from the Applicant. The Applicant further averred that under the terms of the agreement it had the option to charge interest at the prevailing interbank interest rate on the invoices unpaid by the Respondent after the 30 day period.

[3] The further case of the Applicant is that even though it supplied the Respondent with products worth GH¢382,323.80 under the agreement but after it sent the invoice to the Respondent it paid only GH¢273,361.49. The Applicant says it sent several emails to the Respondent to remind it to pay for the goods supplied but they were mostly ignored such that as of 31st December 2016 the Respondent owed the Applicant the amount of GH¢109,336.31 plus interest of GH¢30,595.07 all totaling a sum of GH¢139,931.38. Copies of the emails were attached as Exhibit KBT2.

[4] The Applicant says though the Respondent owed the amount of money stated above, based on assurances given by the Respondent the Applicant entered into another Chemical Supply Agreement (Second Agreement) with the Respondent for the year commencing January 1st 2017. A copy of that agreement was also attached as Exhibit KBT3. According to the Applicant the Respondent again failed to pay for the goods supplied under the second agreement. It is therefore the case of the Applicant that “from 13th January 2016 to 9th June 2017, the Plaintiff had supplied goods under 54 invoices worth GH¢491,931.72 under the two Agreements. (Copies of the invoices of the goods supplied to the Respondent are attached as “Exhibit KBT4” series).”

[5] It is the case of the Applicant that of the total amount of GH¢491,931.72 of the goods supplied, the Respondent had as of 9th June 2017 only paid GH¢370,948.90 leaving an outstanding amount of GH¢193,154.08 inclusive of interest. Plaintiff attached as Exhibit KBT5 series and averred that those confirm the payments made by the Respondent.

[6] The Applicant attached as Exhibits KBT6, KBT7 and KBT8, all being letters written by the Applicant and its Lawyer to the Respondent to demand payment and says the Respondent failed to comply with the demand. The Applicant has further averred that on February 19, 2018 it received a cheque in the amount of GH¢29,995.75 from the Respondent as part-payment of the total debt leaving the outstanding amount of GH¢166,012.57. A copy of the cheque received was attached as Exhibit KBT9. It is the Applicant’s case that the Respondent has been given all the opportunities to pay the debt but it has failed to do so. As a result of the Respondent’s refusal to pay the debt, the Applicant says it issued the instant writ on May 15, 2018.

[7] The Defendant entered Appearance on June 7, 2018 and filed a defence on July 24, 2018. As indicated above, the Plaintiff filed the instant motion for summary judgment on January 22, 2018 and served the Defendant/Respondent. The Defendant/Respondent has also filed an affidavit in opposition to the motion in which it has raised some interesting issues for the Court’s consideration including the fact that it does not owe the amount the Plaintiff has endorsed on the writ of summons. Also the Respondent says per its records it has 52 invoices for the goods supplied and not 54 as claimed by the Applicant. According to the Defendant/Respondent having disputed the amount owed, the present application is without merit and should not be entertained.

Arguments in Favour of Application:

[8] The Court ordered Counsel to provide it with written arguments and both parties have complied. Arguing the motion, learned Counsel for the Plaintiff/Applicant, has submitted that the totality of the evidence before the Court clearly shows that the Respondent is indebted to the Applicant in the sum of GH¢166,012.57. This is because according to Counsel for the Applicant the goods were supplied to the Respondent under the agreements signed and the Respondent has admitted to same. Further, Counsel has argued that the Respondent has never denied that it owes the Applicant and in fact admits that it owes the Applicant based on the evidence before the Court.

[9] The Applicant further argument is that the Respondent’s mere general denial of debt owed without stating the real nature of the debt owed and providing evidence to support same will not suffice in an application for summary judgment. According to Counsel the Respondent does not have any cogent defence to the action and that the Statement of Defence filed is a mere sham aimed at delaying the Applicant from obtaining judgment. Counsel further submitted that the Respondent has not raised any triable issue on the law and on the facts that merits a ruling in its favour on this matter. According to Counsel, for the Respondent to successfully oppose the application, “it must show the basis for claiming that the amount it owes is less than that claimed by the Applicant. The Respondent must attach to his affidavit evidence of such payments and the real nature of the debt it owes”. Consequently, Counsel submitted that it is not enough for the Respondent to deny the amount owed but it should have attached exhibits to buttress its claim.

[10] Counsel further submitted that since it is trite that Summary Judgment is a final judgment, the Applicant is applying for final judgment for the sum of GH¢166,012.57 and not GH¢196,008.32 which was the initial debt until the Respondent made the part-payment in February 2018. Learned Counsel relied on the case of SAM JONAH v. DUODU-KUMI [2003-2004] SCGLR 50 to support the argument. Counsel also cited Kpegah J (as he then was) in the case of YARTEL BOAT BUILDING CO. v. ANNAN [1991] 2 GLR 11-16 and ATLANTA TIMBER CO v. VICTORIA TIMBER CO LTD. [1962] 1GLR 221 per Charles J and also the Halsbury’s Laws of England, Vol 37 (4th Edition) paragraph 414 at pages 308-309 to submit that for “a party to succeed in a summary judgment application, the party must first establish that he is entitled to judgment’. In this case according to Counsel the Applicant has met its onus and therefore entitled to judgment and so the application should be granted.

Arguments in Opposition:

[11] In opposing the application, learned counsel for the Defendant/Respondent relied entirely on the Statement of Defence and the Affidavit in Opposition filed, Order 14 Rule 3 of the High Court Civil Procedure Rules, 2004 C.I. 47 and the writings of the Learned Author, S. Kwami Tetteh at page 352 and 353 paragraph 1 to submit that the Applicants’ application must fail. According to Counsel the Applicant has raised a defence known to the law and must therefore be heard on the merits. I understand Counsel to argue that the Summary Judgment procedure is not appropriate in this case based on the facts before the court because the defence filed requires the Court’s investigation. According to Counsel for the Defendant the real question when it is all said and done is ‘how much does the Defendant owe the Plaintiff as per the Plaintiff’s own pleading?

[12] According to Counsel, the idea of an order for summary judgment is not to silence the Defendant but to prevent a man, clearly entitled to his money from being delayed where there is fairly no defence to what he claims. Counsel also relied on YARTEL BOAT BUILDING CO. v. ANNAN SUPRA to submit that the Plaintiff is not entitled to summary judgment. Counsel further cited the case of SANUNU v. SALIFU [Civil Appeal No. JA/13/08] and SADHWANI v. AL-HASSAN [1999-2000] 1 GLR 19 @ pages 25-26 to say the Defendant having impeached the amount owed, the Plaintiff is not entitled to what it seeks in this application because the Defendant must be given the opportunity to defend the amount claimed and put the Plaintiff to strict proof of same. Counsel says there are germane issues for trial. He has therefore prayed the Court to dismiss the instant application.

Analysis and Opinion of the Court:

[13] It is desirable at this stage to resort to Order 14 Rule 1 of CI 47, which the Plaintiff/Applicant seeks to leverage. It provides:

“Where in an action a defendant has been served with Statement of Claim and has filed appearance, the Plaintiff may on notice apply to the court for judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ, or to particular part of such a claim or that the defendant has no defence to such a claim, except as to the amount of any damages claimed.”

[14] Importantly, I need to reiterate the rule that the Court is not precluded from entering summary judgment in appropriate cases even where the Defendant has filed a defence. This is because by simple interpretation of Order 14 Rule 1, the Court can only come to a conclusion as to whether or not a Defendant has a defence to a claim or part of it if the latter has filled a Statement of Defence to the Plaintiff’s claim.

[15] However, where a Defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair possibility that he has a bona fide defence, he ought to be granted leave to defend generally. Leave to defend must be given unless it is clear that there is no real or substantial question to be tried (See 1995 White Book Vol. 1 @ page 157). So invariably, where a sole reliance on affidavit evidence will not suffice to determine matters conclusively, thus compelling the court to resort to viva voce evidence, an application for summary judgment under Order 14 is inappropriate and the application ought to be dismissed or refused.

[16] In my considered opinion, before granting an application for Summary Judgment, from the pleadings and the affidavit evidence before the court, the judge ought to be satisfied that the defence is either a sham or was filed merely for the purpose of delaying the momentum of the action and also that the facts are not disputed. But is that the case in the present application? That is the issue this court is being invited to address in this application.

Now what is the purpose of Order 14 r 1?

[17] The Supreme Court per Sophia Akuffo JSC (as she then was) answered and resolved the issue in the case of SAM JONAH v LORD KUMI DUODU SUPRA where the learned Justice of the apex Court opined that:

“The objective of Order 14 ……is to facilitate the early conclusion of action where it is clear from the pleadings that the defendant has no cogent defence. It is intended to prevent a plaintiff being delayed when there is no fairly arguable defence to be brought forward.”

[18] Also, in the English case of HOME & OVERSEAS INSURANCE CO. LTD (In liquidation) (1983) All ER 74 at p.77 Lord Justice Parker described with clarity, the nature of Order 14 proceedings thus:-

“The purpose of Order 14 is to enable a Plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived the Plaintiff is entitled to judgment.”

[19] It can therefore be gleaned from the principle established in the above cases that where the court is satisfied that the defence is not a good defence or does not disclose any reasonable or plausible defence the court’s power to enter summary judgment is not fettered. However, where the court has considered the case as a whole and it could be shown that the defendant has raised a defence known to the law and has raised an issue which cannot be determined based on the affidavit filed, the summons for final judgment cannot be the appropriate remedy.

[20] In the unreported civil appeal case of- ALEX BROBBEY v. AKWASI ADDAI, Civil Appeal No. 176/1999, where the Kumasi High Court had granted a summary judgment, Georgina Wood J.A. (as she then was) stated the law after evaluating the facts as follows:

“It follows that a defendant/respondent to such an application is not bound to show a good defence on the merit and consequently it would be wrong for a judge to try the merits of the case on the affidavit evidence placed before him. Thus, even though a judge may think that the defendant might at the trial not succeed in his defence and so fail, he is nevertheless bound to grant the defendant leave, possibly conditional leave to defend the claim. What the judge cannot do under such circumstances is to refuse leave to defend in its entirety.” (Emphasis Mine)

[21] Further, the Court of Appeal in SADHWANI v. AL-HASSAN SUPRA in dismissing an appeal filed after the High Court dismissed a Summary Judgment application on the grounds that the defence filed has raised triable issues held at Holding 2 as follows:

“In applications to sign final judgment, the trial judge was required to examine the pleadings and determine whether there existed a bona fide or good defence known in law. Once any of them was established, it would constitute a triable issue. It could be an issue of fact or law. However the judge was not empowered to try the merits of the respective claims using the affidavit evidence on hand. In any case, the affidavit evidence presented in an application for summary judgment was not intended to be used for the resolution of triable issues that might emanate from the pleadings since that would undermine the very foundation of justice…” (Emphasis Mine)

[22] Also, the Supreme Court decision of BALLAST NEDAM GHANA B.V. v. HORIZON MARINE CONSTRUCTION LTD. [2010] SCGLR 435 reiterates the above position. The Court speaking Gbadegbe JSC held and approved the SADHWANI v. AL-HASSAN SUPRA principle and the rule in Order 14 Rule 3(1) of C.I. 47 and held after stating that the Court of Appeal was right in reversing the High Court ruling allowing the Summary Judgment that:

“Although the procedure for summary judgment under order 14 enables the appellant to obtain speedy and summary judgment without a trial even in cases where the defendant to the action expresses an intention to defend the action, the court may only grant the application in cases where the defendant is unable to set up a good defence or raise an issue which ought to be tried. See: (1) ANGLO-ITALIAN BANK v WELLS, ANGLO-ITALIAN BANK v DAVIES (1878) 38 LT 197; (2) ROBERTS v PLANT [1895] 1 QB 597”.

The Court further held after looking at the evidence filed including the affidavit in opposition by which the Defendant refused the claim as follows:

“In the face of the controversy relating to the demand from the appellant and the inability of the appellant even in its supplementary affidavit to counter the denial by the respondent with any evidence of an admission by the respondent of the claim to the money, on the balance of probabilities the appellant had failed to lead such evidence as to entitle it to a summary judgment in the matter”.

[23] The Supreme Court further approved the opinion of the authors of the Halsbury’s Laws of England on the issue by stating that:

“Writing on the subject of summary judgment, the learned authors in Halsbury’s Laws of England, Volume 37 (Fourth Edition) paragraph 414 at pages 308-309 provide as follows:

“The power to give summary judgment under Order 14 is intended to apply in clear cases, where there is no reasonable doubt that the appellant is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. Leave to defend will therefore be given where the defendant shows that he has a fair case, that there is an issue or question which ought to be tried, or that there are reasonable grounds for setting up a defence or even a fair probability that he has a bona-fide defence. However, the defendant does not have to show a complete defence, but only a fair probability of a defence, or that there is a real or substantial issue or question to be tried or that there is a dispute as to facts or law which raises a reasonable doubt whether the appellant is entitled to judgment. The procedure under Order 14 was not intended to shut out a defendant who could show that there was an issue or question that ought to be tried or that for some other reason there ought to be a trial.”

Although the above statements were made in relation to Order 14 of the 1965 rules of procedure that govern procedure in the High Court in England at the time, the provisions contained in Order 14 of CI 47 are expressed in substantially the same words and accordingly these statements are equally applicable to us”.

[24] Applying the principles enunciated supra to the facts at bar and having exercised the inherent power to scrutinize the pleadings and to determine whether or not the Statement of Defence on the docket discloses any plausible defence, I hold the respectful view that the defence raised is one known to the law and therefore this is not a proper case to grant Summary Judgment. The Plaintiff’s counsel contends that the Respondent’s denial is only to delay the suit because it has failed to provide “any exhibits to buttress the claim”. To Counsel the facts are not disputed, I respectfully disagree. The Applicant’s Counsel ought to be reminded that it has never been the law that in such application a Defendant ought to produce evidence. This is because the law is that the affidavit evidence presented in an application for summary judgment like the instant one was not intended to be used for the resolution of the triable issues between the parties.

[25] The Defendant says it does not owe the amount of money endorsed on the writ of summons because the invoices received are less than the Plaintiffs says it submitted to it and therefore it owes less. To my mind and based on the law even if I think the Defendant shall not succeed at trial, the law is that I cannot deny it a hearing and enter Summary Judgment. In my opinion this is not one of those cases where the Defendant admits its debt but only explaining why it has not been able to pay the debt. In my respectful opinion the Defendant ought to be given the opportunity to lead evidence to substantiate and explain the defence to the court or an audit of the account/dealings of the parties ought to be undertaken as soon as possible.

Conclusion:

[26] I am fortified in the above conclusion based on the law as stated by the Court of Appeal per the judgment of Anin J.A (as he then was) in WILSON v. SMITH (1980) GLR 152 @ 161 where the learned Justice stated:

“While it is true that the rationale behind the summary procedure under Order 14 of L.N. 140A is to provide the plaintiff with a speedy mode of recovery of judgment in cases properly falling under it and thereby to prevent him from being delayed and put to an unnecessary and protracted trial—provided of course there is no arguable defence to the action—nevertheless, the Order was not intended as an engine for the suppression of the defendant. The Order is only intended to apply to cases where there is no substantial dispute as to the facts or the law.” (Emphasis Mine)

[27] In the result, I uphold the submissions of Counsel for the Defendant and I hold that given the facts and the nature of the defence filed in this case, it shall not be just and proper to grant the instant application for Summary Judgment.

[28] My conclusion above notwithstanding; in my opinion, the admission made by the deponent of the affidavit in opposition cannot be ignored. At paragraph 5 of the Affidavit in Opposition it was deposed as follows:

“I say that the Statement of defence was filed on the 24^th of July 2018 and the defendant disputed the amount claimed by the Plaintiff. The defendant says that the amount it owes the plaintiff is GH¢91,048.17 per its records”.

In my respectful opinion the sworn affidavit on behalf of the Respondent speak plainly and eloquently such that there is no ambiguity as to the liability the Defendant is willing to admit. As the above deposition is an unequivocal admission of liability, I hereby enter judgment pursuant to Order 23 of C.I. 47 and also invokes the Court’s inherent jurisdiction to do so in the amount of GH¢91,048.17. See the Supreme Court case of OPOKU & OTHERS (No. 2) v. AXES CO LTD (No. 2) [2012] 2 SCGLR 1214.

[29] With regards to the other remaining balance I hereby order and appoint Mr. Charles Idan, the Deputy Director of Finance, Judicial Service to reconcile the accounts of the parties within 4 weeks from today. The Parties are to submit their accounts statement to him within 14 days from today and to duly co-operate with him.