IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
FRANCIS ANOKYE - (Plaintiff/Applicant)
DOMINIC ANANE - (Defendant/Respondent)
DATE: 22ND MARCH, 2019
SUIT NO: OCC 05/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
MARGARET MARY ADJEI-TWUM (MRS) FOR PLAINTIFF/APPLICANT
DORCAS OTTI FOR THE DEFENDANT/RESPONDENT
Before me is an application for an order of the court to strike out the statement of defence of the defendant and for judgment to be entered for the plaintiff.
Counsel for the plaintiff/applicant contends that the defendant/respondent has put out a statement of defence which is entirely different from their case. According to counsel, the nature of the defence necessitated the filling of interrogatories in a bid to elicit further and better particulars from the defendant. Counsel submits that the defendant did not only file a belated response to the interrogatories but failed to answer some of the questions. In counsel’s estimation the answers provided were insufficient. Counsel cited Order 22 rule 6which gives the court the power to strike out the defence of a defendant and enter judgment in favour of a plaintiff if the defendant gives insufficient answers to the interrogatories. Counsel is therefore inviting the court to strike out the defendant’s defence as his belated response amounts to a violation of the order of the court and that the responses are insufficient. She submits that the responses must be disregarded.
The defendant/respondent is opposed to the application. Counsel for the respondent submits that the defendant complied with the order of the court to file the response to the interrogatories within 7 days after service. She submits that the interrogatories document was brought to her attention on 11/01/2019 by one Akwasi Opoku, the Office Manager of her firm. She refutes the notion that the document was served on her on 12/12/2018. Counsel also submits that they provided answers to the interrogatories and the fact that the answers are in conflict with the plaintiff’s case does not mean the same is insufficient. It is counsel’s submission that the response by the defendant shows that the court ought to go into the merits of the case.
Before I go into the merit of the application, I shall address the issue as to whether the service on a lawyer through an office manager or clerk of her firm constitutes good service on the lawyer.
Order 7 rule 2 of CI 47 deals with service of a document on a party. Indeed, service shall be effected personally on a person who is required to be served with a court process. It is, however, my considered pinion that in instances where a person through his conduct represents to the world that a particular person can receive a court process on his behalf, service on the second named person constitutes good service provided the said person accepts the document on behalf of the first named person. It has been the practice that clerks of lawyers normally accept services of court processes on behalf of the lawyers. So far as the services of these processes are concerned these clerks serve as agents of the lawyers.
Professor G.H.L. Fridman in his book The Law of Agency (Butterworths 7th edition, London 1996) at page 11 defines agency as the relationship that exists between two persons where one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or disposition of property. An agent is, therefore, clothed with the capacity to act on behalf of his principal to the extent that he can enter into binding contracts on his behalf.
Section 26 of the Evidence Act, 1975 (NRCD 323) discusses estoppel by own statement or conduct as follows:
“Except as otherwise provided by law, including a rule of equity, when a party has by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.”
The importance of this type of estoppel is that a person who by his words or conduct willfully or negligently causes another to believe in the existence of a certain state of things and induces him thereby to act on that belief or to alter his position is estopped from asserting against the other person that a different state of things existed at that time. In the instant case, the said office manager/clerk of the defendant/respondent’s lawyer has on numerous occasions received service of a process on behalf of the lawyer. This is evidenced by affidavits of service dated 30/11/2018, 5/12/2018, 18/01/2019 and 1/02/2019 among other proof of service. In all those instances counsel never raised any objection, as the said Nana Poku(whom counsel referred to as Akwasi Opoku in her submission to the court) received the processes on her behalf. Thus, counsel for the defendant made the plaintiff believe that Nana Poku is her agent who had her authority to receive court processes on her behalf. Therefore, counsel cannot be heard to be saying that Nana Poku is not competent to receive on her behalf court processes that are meant to be served personally on her. The result is that the service of the interrogatories on counsel through Nana Poku was proper service and as such the defendant was required to respond to the interrogatories within 7 days when the same was served on her on 12/12/2018.
In the instant application, the defendant never replied to the interrogatories within 7 days after it was served on his lawyer through the said Nana Poku. Counsel for the applicant is inviting the court to treat this procedural lapse as a defect which has the consequence of empowering the court to strike out the defendant’s defence. Indeed, there is a palpable procedural breach, as the order of the court was not timeously complied with but this breach does not in any way affect the substance of the defendant’s defence for same to be struck out. We must be reminded that even in cases where the rules of court are not complied with, proceedings are not rendered void when the non-compliance does affect the root of the matter. See Order 81 rule 1 of CI 47. Substance normally prevails over form especially where overreliance on form will undermine substantial justice.
I have also taken the liberty to peruse the defendant’s response to the interrogatories and it is clear that his answers are at cross purpose with the claim of the plaintiff. The plaintiff is claiming that he dealt with the defendant in the year 2016. The defendant is also claiming that he dealt with the plaintiff between 2014 and 2018. In respect of the unit price query, the defendant is claiming that he never dealt with the plaintiff on unit price basis. He therefore failed or refused to answer questions relating to it, as in his estimation the unit price is not applicable to him. A dispute occurs when one party makes a claim and the other party rejects it. The fact that the plaintiff does not like the defendant’s answers to the interrogatories does not make the same insufficient within the meaning of Order 22 rule 5 and 6 of CI 47. The answers to the interrogatories have rather amplified the dispute between the parties and this can only be resolved through a full trial. I therefore find counsel’s application untenable.
What the applicant is seeking to achieve in this application is the entry of summary judgment under the guise of a purported noncompliance with Order 22 rule 6 of CI 47.From the affidavit evidence, the plaintiff/applicant has failed to proof that the defendant has no reasonable defence to the action for summary judgment to be entered.
Consequently, I dismiss the application. There will be no order as to costs.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH COURT