IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
SUPERSPORT INTERNATIONAL (PROPRIETORY) LIMITED - (Plaintiff)
CHAMPION BROADCASTING LIMITED - (Defendant)
DATE: 15 TH FEBRUARY, 2018
SUIT NO: OCC/43/2016
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
ANTHONY FORSON JNR. FOR PLAINTIFF
ANNIS MOGHTAR MOHAYIDEEN FOR MUJEEB RAHMAH AHMED FOR DEFENDANT
It is provided under Order 41 rule 7 of the High Court (Civil Procedure) Rules, 2004, C.I. 47 as follows:
Drawing up and entry of judgment or order
7. (1) The party seeking to have a judgment entered shall draw up the judgment and present it to the Registrar for entry.
(2) Where judgment is presented for entry in accordance with this rule, the Registrar shall enter it in the book kept for that purpose, file the judgment and return a duplicate of it to the party who presents it for entry.
(3) An order required to be drawn up shall be drawn up by the party in whose favour the order is made, and if that party fails to draw up the order within seven days after it is made, any other party affected by the order may draw it up.
(4) The order referred to in sub rule (3) shall when drawn up, be produced at the registry together with a copy of it, and when passed by the Registrar the order shall be sealed and returned to the party who produced it and the copy shall be lodged in the registry.
The learned author, Kwame Tetteh, (2011) CIVIL PROCEDURE, A PRACTICAL APPROACH, at page 862 explained an Entry of Judgment thus:
An entry of judgment is a formal record containing the full details of the judgment pronounced by the court; without which the judgment cannot be enforced by any process of execution, even if a consent judgment.
The Supreme Court also re-echoed this in the case of Republic v Court of Appeal; ex parte Ghana Commercial Bank Pensioners Association (2001-2002) 1 GLR 502. See also Abireh v Attorney-General (1992) 1 GLR 467.
On 07/12/17, counsel for the Defendant/Judgment Debtor/ respondent herein filed a motion on notice for an order setting aside the Entry of Judgment in favour of the Plaintiff/Judgment Creditor/Respondent herein.
The body of the said motion reads:
MOTION ON NOTICE by…, counsel for and on behalf of the Defendant/Judgment Debtor/Applicant herein praying this honourable court for an ORDER SETTING ASIDE THE ENTRY OF JUDGMET IN FAVOUR OF THE PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT AS SAME WAS GRANTED CONTRARY TO THE EVIDENCE AND OR FACTS OF THIS MISREPRESENTATION and upon the grounds set forth in the accompanying affidavit.
Before touching on the affidavits filed, there has been an invitation to this court by counsel for the Defendant/Judgment Debtor/Applicant (hereinafter called the Applicant), to strike out certain depositions contained in the affidavits filed on behalf of the Plaintiff/Judgment Creditor/Respondent hereinafter called the Respondent), because they are abusive and scandalous. The court has power to strike out depositions which are deemed scandalous, offensive, and the like under Order 20 rule 9 of C.I. 47, it provides that:
Scandalous and irrelevant matter in affidavit
9. The Court may order any matter which is scandalous, offensive, irrelevant or otherwise oppressive to be struck out of an affidavit.
For the Applicant, counsel cited and relied on the case of Odonkor & Ors v. Amartey No. 2 (1992-93)
2 GBR 653, SC where Francois JSC admonished members of the bar and bench that:
However emotionally overheated one may be, members of the legal fraternity have a duty to conform to the time-honoured practice of comporting themselves always with decorum and dignity. This must be reflected in the language they employ which should be of measured elegance and sobriety…
In the present application, it is to be noted that if there is any “emotional heating” at all, the same was sparked by the Applicant’s deposition in paragraph 10 of the affidavit in support to the effect that the Respondent misrepresented facts to this court aimed at deceiving the court. Having pushed the Respondent so hard, it did not come as a surprise at all when the expression “fraudulent afterthought manufactured to deceive the court” was used to describe the Applicant’s exhibit “CBL 3”. There is no doubt that the words “ “deceive” and “fraudulent” used in paragraph 10 of the affidavit in support and paragraph 10 of the affidavit in opposition, as well as paragraph 3 of the supplementary affidavit in opposition are offensive. Accordingly, the court strikes out those words from the said affidavits under Order 20 rule 7 of C.I. 47. The main grounds of the application can be gleaned from paragraphs 7 to 16 of the supporting affidavit wherein it was deposed that the Applicant has not breached any of the terms of settlement between the parties, and that the Respondent, in its application filed on 26/05/17, misrepresented facts to the court, which led to the award of punitive damages of $ 40,000.00 and cost of GHC 20,000.00. In particular, it was deposed that even if the applicant aired any of the football matches of the English Premiership, it would have done so on the back of a joint venture between Main Line Sports Assets, Inc d/b/a the Ringside Network (Ringside) Delawre, USA and the Applicant. A copy of the said joint venture was annexed as exhibit ‘CBL 3’.
The Respondent caused an affidavit in opposition to be filed on 18/12/17, and in paragraph 4 thereof, it was deposed that the instant application is incompetent and unknown to the rules of court as it fails to identify any defect with the entry of judgment itself, and rather seems to challenge the judgment of this court which is accurately reflected on the entry of judgment. Again, it was deposed that the Applicant was aware of the application leading to the judgment as well as the entry of judgment, there was no mention of any joint venture agreement at the time the terms of settlement were adopted by the court. So, the purported joint venture agreement, exhibit ‘CBL 3’, is an afterthought. The Respondent further caused a supplementary affidavit to be filed on 25/01/2018 and exhibited a letter, exhibit D2, received from the rights owner of the EPL, to the effect that Ringside Network has not been authorized to broadcast any football matches of the EPL and therefore the broadcast made by the Applicant is also unauthorized.
In a supplementary affidavit in response filed on 29/01/2018, the Applicant denied the depositions contained in the affidavit in opposition as well as the supplementary affidavit in opposition, and maintained that by virtue of exhibit “CBL 3”, the Applicant never flouted any of the terms of settlement. It was further deposed in paragraph 9 that the Applicant was never put on notice as regards the processes/application that led to the Order for Garnishee Nisi, and that a search request had been made to the registry of this court relative the service of the motion for the Entry of Judgment. The contention that the request to the court to set aside “THE ENTRY OF JUDGMENT” regularly filed by counsel for the Applicant, is incomprehensible will be looked at. This court agrees with counsel for the Respondent that the target of this application is the order of the court for the enforcement of the terms of settlement granted on 27/07/2017, because the entry of judgment as it stands was filed by counsel based on the orders of the court which are still subsisting. The applicant kept shifting posts as regards the gravamen of the application, the latest being non-service and/or bad service. Counsel for the Applicant argued that the search results from the registry shows that the “motion for enforcement of the terms of settlement” was served through one Ernestina B. Danquah supposed to be the Applicant Company’s Secretary, but that person is not known to the Applicant/Company. Counsel drew the court’s attention to a list of the members of the Applicant/Company, exhibit “CBL 4”.
Counsel submitted that even though there is proof of service, the same is not sacrosanct and can be challenged as was held in Barclays Bank v. Ghana Cable Co. Ltd & Ors (1998/99) SCGLR 1. Counsel submitted that per Order 7 rule 5(1) of C.I. 47:
Service of a document on a body corporate ,may, in cases for which provision is not otherwise made by any enactment, be effected by serving it on the chairman, president, or other head of the body, or on the managing director, secretary, treasurer or other similar officer of it.
Hence, service ought to be effected on the officials named for same to be proper service and nothing more. For the Respondent, counsel argued that the Applicant introduced the issue of “non-service” as an afterthought, because it was not stated anywhere in its affidavit in support of the application to set aside the entry of judgment, and same was raised after the Applicant had been confronted with certain evidence in its affidavit in opposition. Further, counsel argued that there is no deposition in the affidavits filed on behalf of the Applicant that the persons served were not officers or employees of the respondent. And, the Respondent was entitled to presume that what the bailiff did was regular, which said presumption has not been rebutted by the Applicant.
On 16/06/2017, Owusu Boateng Nash, a bailiff attached to the Commercial Court filed an affidavit of service of the “Motion for Enforcement of Terms of Settlement, affidavit in support and a hearing notice.” He indicated that he served those processes on “Champion Broadcasting Ltd at Bomso, Kumasi through Ernestina B. Danquah (secretary)”. In effect, this affidavit was in existence at the time counsel for the Applicant filed the instant Application on 07/12/2017 and so counsel could have conducted a search at the registry to ascertain the facts therein. Yet, counsel waited until 30/01/2018 before conducting a search at the registry of this court. No wonder the allegation that Ernestina Danquah is not known to the Applicant Company was raised for the first time in counsel’s written submissions.
Now, Order 19 rule 4 of C.I. 47 provides that:
Affidavit in support of motion.
Every application shall be supported by affidavit deposed to by the applicant or some person duly authorized by the applicant and stating the facts on which the applicant relies, unless any of these rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper.
As rightly observed by counsel for the Respondent, the fact of Ernestina Danquah not being a member or worker of the Applicant/Company is not stated anywhere in the affidavit in support, or the supplementary affidavit in response to the supplementary affidavit in opposition filed by the Respondent. If such a deposition had been made, the respondent would have had the opportunity to respond to the same, and the court would have been also been guided by the statement of Acquah JSC (as he then was) in the Barclays Bank v. Ghana Cables case, referred to, supra, and ordered an investigation, specifically, the bailiff would have been examined on oath. It is not as if the affidavit of service was smuggled in at the eleventh hour, it has always been on the court’s records. It is too late in the day for counsel for the applicant to raise that factual point in his submissions before this court. Looking at the circumstances of this application, the court cannot help, but agree, with counsel for the Respondent that the allegation that Ernestina Danquah is not known to the Applicant is indeed an afterthought.
The court will add that service of documents on companies in Ghana is regulated by the provisions of section 263 of the Companies Act, Act 179. It states:
263. Service of documents on company
(1) A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company, or the latest office registered by the Registrar as the registered address of the company.
(2) A document to be served by post on a company shall be posted in the time that admits of its being delivered in due course of delivery within the time prescribed for the service of the document; and in proving service it shall be sufficient to prove that a letter containing the document was properly addressed, prepaid and posted, whether or not by registered post.
(3) Where a company does not have a registered office, service on a director of the company or, if the company does not have a director or if a director cannot be traced in the Republic, on a member of the company, shall be deemed good and effectual service on the company. (4) If it is proved that a document was in fact received by the board of directors, managing director or secretary of a company the document shall be deemed to have been served on the company although service may not have been effected in accordance with subsection (1), (2) or (3).
Unless otherwise directed by the court, the above provision takes precedence over Order 7 rule 5 (1) of C.I. 47, quoted by counsel for the Applicant. Now, if a document meant for service on a company, in terms of section 263(1), is to be left at its registered office, there must certainly be a Human Being to receive it. It cannot just be dumped at the doorstep of the company. As Acquah JSC (as he then was) observed in the Barclays Bank v. Ghana Cables case, the document must be left with someone capable of bringing it to the attention of the company. On the face of section 263(1) of Act 179, there appears to be a lacuna as to whom the document can be left with. However, the provisions of section 29(2) (d) of the Interpretation Act, 2009, Act 792, on service of documents can be resorted to. It states:
Service of documents
29. (2) Where an enactment authorizes or requires a document to be served on a person without directing it to be served in a particular manner the service of that document may be effected
(d) in the case of a corporate body or of an association of persons, whether incorporated or not, by delivering it to the secretary or clerk of the body corporate or association at the registered or principal office of the body corporate or association or serving it by post on the secretary or clerk at that office. (emphasis mine)
In the Oxford Advanced Learner’s Dictionary, 7th ed. the word clerk is defined as: a person whose job it is to keep the records or accounts in an office; a secretary is also defined a person who works in an office, dealing with letters, phone calls, typing, keeping records, arranging meetings with people, etc. In modern times, the expression front desk executive has been used to describe a person who does some of the work of an administrative secretary. In Ghana, secretaries are usually the first point of call when one seeks to transact official business with a company, they in turn direct the person to the appropriate quarters, if need be. And so if bailiffs go out for service, they are more likely to meet such secretaries as opposed to directors, managing directors, company secretaries or members of a company. Before this court is a list of members or officers of the Applicant Company, exhibit “CBL 4”. This document is indeed self -serving, to say the least. That list was curled from an October, 31st 2015 report, as noted by counsel for the Respondent. In it, Dr. Divine Gabriel Brefo is stated as the General Manager. Yet, the writ of summons was served on one Hammond Kojo Odoom, General Manager, on 17/03/2016, the process got to the notice of the Applicant Company who caused its lawyer to enter appearance on 04/04/2016. It is more probable, than not, that the members as at 2015 may have changed. It was the duty of the Applicant to bring to the notice of this court the most recent processes from the office of the Registrar General from which the membership of the Company could be ascertained. Alternatively, a staff list obtained from either the Ghana Revenue Authority or the Social Security & National Insurance Trust (SSNIT), whichever is applicable, would have sufficed. In any case, officers of a company are not necessarily members of a company. The members of a company are the shareholders. Section 137(1) of Act 179 states that:
137. Division of powers between general meeting and board of directors
A company shall act through its members in general meeting or its board of directors or through officers or agents, appointed by, or under authority derived from the members in general meeting or the board of directors.
This reinforces the point that a person may be working in an office of a company, but may not necessarily be a member of the company. Exhibit “CBL 4” is therefore of no probative value. On the face of the affidavit of service filed on 16/06/2017, Ernestina Danquah was served not as a company secretary in terms of the Companies Act, but as a secretary in the ordinary sense of the word. This is to be distinguished from the Barclays Bank v. Ghana Cables case, supra, where service was effected “on the defendants through their company secretary, Madam Alice”, who was not known to the Registrar General as its Company Secretary. With that distinction made, the court accepts the service of the “motion on notice for enforcement of terms of settlement, affidavit in support and a hearing notice” on Ernestina Danquah (secretary), as good service. The document was served on the Applicant Company on 12/06/2017, the motion was moved on 27/06/2017. Therefore, the Applicant Company cannot raise any question of non-service, bad service, or a breach of the audi alteram partem rule. Certainly, the Applicant Company was given the opportunity to be heard. The entry of judgment was also served on the Applicant Company through Edmund Agyei, Programmes Manager, on 27/07/2017. Again, there is nowhere in the depositions made on behalf of the Applicant Company that the said Edmund Agyei is not its officer. The court is of the opinion that the Programmes officer is a responsible person capable of bringing the process to the attention of the Defendant Company. In effect, there was no irregularity in either the service of the motion for enforcement of terms of settlement or service of the entry of judgment on the Applicant Company.
The court granted the order upon a careful perusal of the documents before it and submissions made by counsel, and was not in any way misled by the Respondent Company as the Applicant wants to portray. Counsel for the Applicant has made every effort to prevent the court from considering the Respondent’s exhibits “ DA 1” and “DA 2” attached to its affidavit in opposition and supplementary affidavit in opposition on the basis of non- verification, contrary to Order 20 rule 14(2) of C.I. 47. For the Respondent, counsel urged the court to treat the non-compliance as a mere irregularity and waive same under order 81 of C.I. 47. Concluding, counsel adverted the mind of the court to Order 20 rule 7 thus:
USE OF DEFECTIVE AFFIDAVIT
7. An affidavit may with leave of the court be filed or used in evidence notwithstanding any irregularity in its form.
Order 20 rule 14(2) of C.I. 47 states:
Document exhibited to affidavit
14. (1) Any document to be used in conjunction with an affidavit shall be exhibited and not merely annexed or attached to the affidavit.
(2) Any exhibit to an affidavit shall be identified by a certificate of the person before whom the affidavit is sworn.
(3) The certificate shall be titled in the same manner as the affidavit and rule 3 sub rules (1), (2) and (3) shall apply accordingly.
The defect complained of here is not in the affidavit itself so order 20 rule 7 of C.I. 47 does not apply. As far as exhibit “DA 1” is concerned, the applicant paid the requisite fee to the Judicial Service, the document was commissioned by the Registrar of this court, who merely stamped the exhibit and signed, instead of complying with order 20 rule 14 (2) supra. The consequences of that mishap cannot be visited on the Respondent. Exhibit “DA 2” also bears a stamp ad signature of the commissioner of oaths who commissioned the supplementary affidavit in opposition. That stamp purported to authenticate or identify the said exhibit.
Even though the stamps of the Registrar and Commissioner of oaths on exhibits “D 1” and “D 2” do not fully satisfy the requirements of order 20 rule 14 (2) of C.I. 47, that irregularity can be waived under Order 81 of C.I. 47, and the same is hereby waived. Upon a careful perusal of all the documents which have been brought to the notice of this court, particularly, exhibit “D 2”, this court is of the opinion that the Applicant Company in fact breached the terms of settlement signed by the parties which culminated in the grant of the application to enforce the terms against the Applicant Company. The instant application lacks merit and the same is refused.
Costs of seven thousand Ghana cedis (GHC 7,000.00) is awarded against the defendant applicant.