IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
PAA SOLO COMPANY LIMITED - (Plaintiffs)
NAJA DAVID VENEER & PLYWOOD AND ANOTHER - (Defendants)
DATE: 21 ST JUNE, 2019
SUIT NO: OCC 33/2017
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS: KWAME ADOM APPIAH FOR THE PLAINTIFF/APPLICANT
Order 1 rule 1(2)of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides:
“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”
Order 58 rule 3 (2) of CI 47 also provides:
“An application for summary judgment or judgment on admissions shall not be filed until after the pre-trial settlement conference.”
In this application for judgment on admission, counsel for the applicant is inviting the court to enter judgment in favour of the applicant based on admissions made by the defendants/respondents in their statement of defence. Counsel acknowledges that the case has not gone through the pre-trial settlement conference which per Order 58 rule 3(2) is a prerequisite to the application. Counsel, however, submits that in the light of the admission no useful purpose will be served if the case goes through the pretrial settlement session. That, such a move will unnecessarily delay the determination of the case. He submits that the court can apply Order 1 rule 1(2) of CI 47 and grant the application although the condition contained in Order 58 rule 3 has not been satisfied.
Order 1 rule 1(2) sets out the purpose of the rules of court. It is meant to achieve speedy, just and inexpensive resolution of disputes devoid of multiplicity of actions. This is a general provision which is applied in the interpretation of the civil procedure rules.
Order 58 of CI 47 contain special rules that guide the operations of the Commercial Court. Order 58 incorporates court oriented Alternative Dispute Resolution as part of the adjudicating process of the Commercial Court. By Order 58 rule 3(2) parties in suits before the Court are not allowed to apply for summary judgment or judgment on admissions, until after the pre-trial settlement conference. Order 58 rule 3 (2) is a specific provision as against Order 1 rule 1 (2) which is a general provision.
The law is that when a specific provision conflicts with a general provision in the same enactment, the specific provision prevails. For an application of this rule, see: Republic v High Court, Accra; Ex arte PPE & Juric(Unique Trust Financial Services Ltd(Interested Party) and In Re Parliamentary Election for Wulensi Constituency; Zakaria v Nyimakan (2003-2004) SCGLR 1. In the instant case, Order 58 rule 3(2) has not impliedly repealed Order 1 rule 1(2). However, since the application of both lead to conflict of some sort Order 58 rule 3(2) overrides Order 1 rule 1(2) in the instant case.
Order 1 rule 1 (2) is meant to promote speedy and effective justice but not designed to encourage the disobedience of mandatory procedural requirements especially if they touch on the jurisdiction of the court. Such disobedience cannot be treated as a mere irregularity which can be cured by the combined effect of Order 1 rule 1 (2) and Order 81 rule 1 of CI 47 which confers a wide discretion on the court to rectify irregularities.
The pretrial settlement conference at the Commercial Court is so fundamental that it clothes the court with the jurisdiction to hear an application for judgment on admission only if the parties have participated in the pretrial session and the matter has been remitted for full trial. Non-compliance with this fundamental rule as dictated by Order 58 rule 3 (2) will render any subsequent procedure which begets judgment on admissions null and void. In that regard, the accommodating effect of Order 81 cannot save the situation. In the case of Republic v High Court, Accra Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd) [2007-2008] SCGLR 1041, the Supreme Court per Dr. Date–Bah JSC made a pronouncement on Order 81 of the High Court (Civil Procedure) Rules, CI 47 as follows:
“To summarise then, where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (CI 47), such non-compliance is to be regarded as an irregularity that does not result in a nullity, unless the non-compliance is also a breach of the Constitution or of statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction.”
Thus, where the rules of court prescribe the condition precedent to initiate an action and the same is not complied with, it is not only an irregularity but may raise an issue that goes to jurisdiction. In so far as Order 58 rule 3 (2) has not been complied with, the court cannot entertain the instant application.
For the forgoing reasons, the application is dismissed.
There will be no order as to costs.