IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
ASCOSWISS AG - (Plaintiff)
GHANA REVENUE AUTHORITY AND OTHERS - (Defendant)
DATE: 19 TH NOVEMBER, 2018
SUIT NO: CM/TRPC/0003/2016
JUDGES: ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
Plaintiff/Applicant in this application seeks an order for summary judgment against the Defendants for the reliefs endorsed on the writ. As the reliefs for which the summary judgment being sought are relevant to the determination of this application, I find it necessary to reproduce them as follows:
a. A declaration that the Plaintiff is the bona fide owner of the caterpillar D8R with serial No. 9EM02518 and are entitled to possession of the two equipment.
b. A declaration that the gazette notification of the confiscation published in the Commercial and Industrial Bulletin dated the 10th of January, 2014 which gave notice of the confiscation of Caterpillar with serial NO 9EM02518 and the purported confiscation and removal from the port is unlawful and a nullity.
c. A declaration that the decision of the 1st Defendant to detain and refusal of 1st Defendant to release and allow the Plaintiff to re-export Caterpillar D&R with serial NO 9E02521 is illegal, irrational and procedurally improper and infringes the standards of reasonableness of the administrative act.
d. An order that the Plaintiff recover from the 1st Defendant the sum of Seven Hundred and Forty-Five Thousand Six Hundred Swiss Frans) being the cost of the two caterpillars D&R with Serial Nos 9EM02518 and D9E02521 auctioned off by the 1st Defendant.
e. Interest on the sum of CHF 743,600 from the 25th of August, 2014 to the date of final payment.
f. Legal fees and costs at 30% of the sum to be recovered.
Plaintiff claim to have shipped two caterpillars to the 2nd Defendant as consignee to the port of Tema from the port of Antwerp on the 18th of February, 2012. The goods according to the Applicant arrived at the port of Tema in March, 2012 but the consignee failed to pay for the tractors and wrote several letters to the Applicant for a release of the original bill of lading whereupon Applicant wrote to the Assistant Commissioner in charge of Tema port for permission to re-export the tractors which permission was granted for the re-exportation. And whiles in the view of the Applicant such orders of re-exportation was being processed, the 1st Respondent purported to have confiscated, removed and sold one of the tractors. That the second tractor was also auctioned notwithstanding the pendency of an application for inspection of the second tractor hence leading to the action for a recovery of the monetary value of the tractors sold by the 1st Respondent.
The grounds upon which a summary judgment application may be granted by the court are well known. It is stated under Order 14 Rule 1 of the High Court (Civil Procedure) Rules as follows:
“Where in an action a defendant has been served with a 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 a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed”.
The grounds that will trigger the grant of an application under Order 14 was stated by Kpegah J. (as he then was) n the case of YARTEL BOAT BUILDING v ANNAN  GLR … that:
“Before the plaintiff could bring an application for summary judgment under Order 14 … (a) the defendant must have been served with a statement of claim; (b) the defendant must have entered an appearance; and (c) the affidavit in support of the application must not only depose to facts indicating that the plaintiff’s claim was real and considerably unimpeachable but must also contain an averment that the defendant had no defence to the action”
See also the following cases: SANUNU V SALIFU  SCGLR 586; SAM JONAH v KUMI DUODU [2003-2004] SCGLR 50 MUSTAPHA v NIB [2005-2006] SCGLR 1037 ATLANTA TIMBER CO v VICTORIA TIMBER CO LTD  1 GLR 221; ASAMOAH v MARFO  SCGLR 832; BALLAST NEDAM GHANA LTD v HORIZON MARINE CONSTRUCTION LTD  SCGLR 435
Simply put the essence of summary judgment is to enable a party whose claim is clearly unimpeachable to record an early judgment. Therefore if there are matters of facts and law from the pleadings and affidavit evidence that demonstrate that the court may need to delve into the matters, summary judgment may not be the best course opened to the party applying for summary judgment. I have deliberately decided not even to state the respective claims of the Respondents and just analysis the law and facts of the claim of Applicant to determine whether this action is maintainable. The claim for the recovery of an amount of Seven Hundred and Forty-Five Thousand Six Hundred Swiss Frans) together with interest in reliefs d and e is anchored on the first three reliefs, all being in the nature of declaratory reliefs. And it was only when Applicant proved that it was entitled to those declarations that the monetary recovery flows as a matter of course.
That a declaratory relief cannot be obtained by a motion or an application in the cause but after hearing the parties in a full trial is now a notorious fact. And it is even possible that in an action for a declaratory relief, the Defendant may choose not even to appear but not would not entitle the Plaintiff to record an early victory as Plaintiff is bound to go into the box or by full scale legal arguments slated by the court, perhaps under Order 33 Rule 5 of the High Court (Civil Procedure) Rules, C. I. 47 for Plaintiff to prove any claim of entitlement to the declaratory reliefs. Declarations are not made on admission where the Applicant claim there is no defence but after trial and proper evaluation of the evidence. It may even be that after trial where a Defendant may not appear to defend himself that the Plaintiff may be found not to be entitled to the declaration.
This is not dissimilar to the well-trodden path of the courts that a party is equally not entitled to judgment in default of appearance or in default of defence under Orders 10 and 13 respectively of C. I 47 when the claim of the party is for declaratory reliefs. See the decisions of the Supreme Court in REV ROCHER DE GRAFT SEFA v BANK OF GHANA J4/51/14 dated 19th November, 2015; THE REPUBLIC V HIGH COURT ACCRA, EX OSAFO  2 SCGLR. 966; METZGER v DEPARTMENT OF HEALTH & SOCIAL SECURITY  3 ALL ER 444, MEGARRY VC at 451; WELLESTEINER v MOIR  3 ALL ER 217 at 251. For the learned authors of Halbury’s Laws of England sum up it up in their 4th Ed paragraph 519 that:
“… in all cases where he (i.e Defendant) shows that he has a genuine defence, or adduces facts which may constitute a plausible defence or show that there is some question of fact or law to be tried or investigated, a Defendant is entitled to unconditional leave”.
And I think in this case there is a question of law in respect of the declaratory reliefs that there ought to be a trial and which does not permit the Applicant to sign off an early judgment. In so far as the claim for payment of monies is dependent on the declaratory reliefs and having come to the conclusion that the Applicant is not permitted to sign off judgment in a declaratory matter in the manner for which he has come by this motion, I find no just cause to grant the reliefs of the Applicant for summary judgment and same is declined by the court.