IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
APPLE HEALTH LIFE EXPERTS - (Plaintiff)
THE ATTORNEY GENERAL - (Defendant)
DATE: 11TH JANUARY, 2019
SUIT NO: GJ/1143/2018
JUDGES: JUSTICE KWEKU T. ACKAAH- BOAFO
MR. WILLIAM ADDO WITH KELLY SERWAH KWAKYE FOR THE PLAINTIFF/ APPLICANT
MR. WILLIAM AKWETEY BONSU FOR THE DEFENDANT/RESPONDENT
(1) This is an application by Plaintiff/Applicant herein praying that summary judgment be entered against the Defendant/Respondent for the reliefs endorsed on the Writ of Summons filed on July 20th, 2018 stated below as:-
The Plaintiff claims against the Defendant as follows:
1. The payment of the sum of GH₵2,614,000.00 being the contract sum for the supply and installation of gymnasium equipment to the defendant which it has failed to pay.
2. Interest of 35% on the said GH₵2,614,000.00 from the 1st day of January, 2018 to the date of final payment.
(2) The Plaintiff/Applicant reproduced on the Motion paper filed on October 4, 2018 the above stated reliefs against the Defendant. Accompanying the Application is a 9 paragraph Affidavit sworn to by Dr. Eric Boachi Randolf who describes himself as the Managing Director of the Plaintiff Company with attached exhibits setting out the grounds for the prayer for an order for Summary Judgment. The thrust of the Plaintiff/Applicant’s case is that in or about the year 2008 the “Plaintiff was contracted by the Ghana Sports Authority under the Ministry of Youth and Sports at its own expense to supply and install gymnasium equipment to it, it did so until 2010 when the Ministry itself stepped in and took over the said contract to ensure that the Plaintiff equipped all the stadia in Ghana with the said gymnasium equipment”. The Plaintiff contends that it self-financed the project and fully supplied the equipment and installed same and as a result it is owed an amount of GH₵2,614,000.00 which the Defendant has failed to pay despite many demands made.
The Case for and against the Application
(3) The Plaintiff attached as Exhibit “A”, a letter from the Ministry of Youth and Sports dated March 26, 2010 and signed by Wolanyo K Agra, the Chief Executive Officer of the National Sports Council to support its contention that the Ministry is aware of the debt. According to the Plaintiff, although the Plaintiff had by the end of 2012 completed at its expense the contract, the Ministry of Youth and Sports waited until February 28, 2013 “when it was fully satisfied with the quality of the equipment supplied and installed before by a letter of the same date, formally awarded the contract in the said sum of GH₵2,614,000.00 to the Plaintiff for the equipment supplied aforesaid to ensure a complete compliance by the Plaintiff with the terms of the said contract”.
(4) It is the case of the Plaintiff/Applicant that since the completion of the said contract and despite several demands made on it to pay, the Ministry “has adamantly refused, failed and or neglected to pay”. The Plaintiff attached as Exhibit “B” and “B1” copies of the demand letters. The Plaintiff further contends that the Defendant has no defence whatsoever to the claim because on several occasions since the completion of the contract “it has admitted its indebtedness to the Plaintiff by pleading with the relevant governmental Ministers and agencies to ensure payment of the said GH₵2,614,000.00 to the Plaintiff to no avail. The Plaintiff attached as Exhibits “C”, “C1”, “C2” and “C3” some of the letters it says evidence the admissions.
(5) In moving the application, Learned Counsel for the Plaintiff/Applicant rehashed the facts as detailed in the affidavit and submitted that based on all of the facts the Defendant has no defence to the claim. Counsel conceded that the Defendant has filed a defence in the matter but submitted that the defence flies in the face of the rules of court on the grounds that the Defendant does not answer the claim of the Plaintiff. And the defence itself, Counsel submitted, is only about denials and nothing else. His view is that considering the totality of the pleadings, the Plaintiff/Applicant is not precluded from bringing this instant application. He is of the strongest conviction that the court has the inherent power to enter summary judgment under Order 14 of CI 47 at this stage of the litigation because, according to him, the defence so filed is a sham and does not disclose any reasonable and plausible defence at all.
(6) The Attorney General entered Conditional Appearance on August 3, 2018 but no process was filed after that until an Affidavit in Opposition to the instant application was filed on October 15, 2018. A Statement of Defence was filed on December 6, 2018 as well. To plumb the full depth of the Defendant’s position in this application and for a better appreciation of the defence put up and leave no one in doubt, it is desirable to set out in extenso the Affidavit in Opposition which was first filed and the Statement of Defence which was also later filed.
(7) In the Affidavit in Opposition filed, the thrust of it is stated at paragraphs 5 to 9 as follows:
“5. That the Attorney General being a nominal Defendant wrote to the Ministry of Health for their comments on the averments made in the Statement of Claim. Letter to the Ministry of Health attached and marked as “Exhibit A-G1”. For the record no letter was attached to the affidavit.
6. That on the 4th of October 2018, the Plaintiff/Applicant filed for Summary judgment.
7. That the delay in filling of the defence is not intentional and not to show disrespect to this Honourable Court.
8. That it was occasioned by the difficulty on the part of the Defendant/Respondent in getting a response from the Ministry of Health despite writing a letter to that effect.
9. That the Defendant/Respondent have a defence to the Suit instituted by the Plaintiff”.
(8) The 5 paragraph statement of defence filed on December 6, 2018 was also as follows:
“1. Except as hereinafter expressly admitted, the defendant denies each and every averment contained in the Plaintiff Statement of Claim as if same were set out in extensor and denied seriatim.
2. The Defendant cannot admit or deny paragraph of Statement of Claim.
3. Defendant deny paragraphs 2 and 3 of the Plaintiff’s Statement of Claim and states that Plaintiff will be put to strict proof.
4. The Defendant makes no admission of paragraphs 4 and 5 of Plaintiff’s Statement of Claim,
5. Paragraph 6 of Plaintiff Statement of Claim is denied.
WHEREFORE the Defendant submits that the Plaintiff is not entitled to any of the reliefs on the Writ of Summons and the Statement of Claim or at all”.
(9) In a nutshell the above is the basis for the Defendant’s opposition to the Plaintiff’s application for Summary Judgment. In making my decision I have therefore considered the Defendant’s position in this application based on the affidavit in opposition statement of defence filed and on the docket.
Court’s Opinion and Analysis:
I start my analysis by posing the question;
Is the court precluded from entering a Summary Judgment after a Defence is filled in the matter?
(10) A moving party, in this case the Plaintiff herein by the instant application is attempting to establish that there is no “triable issue” or no “genuine issue of fact requiring a trial” and that it is entitled to judgment as a matter of law. As a matter of law, summary judgment cannot be entered under Order 14 with respect to:
a. probate, matrimonial or maritime proceedings;
b. a claim or counterclaim for defamation, malicious prosecution, seduction or breach of promise of marriage; or
c. A claim or counterclaim based on an allegation of fraud. See: Order 14 r 12 of CI 47.
(11) So what are the parameters of Order 14 of CI 47 and under which circumstances shall judgment be recovered against the defendant or the defendant granted leave to defend generally?
It is provided in Order 14 Rule 1:
“1. 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.”
(12) Recognizing, as I do, that the rule of law is that 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. So invariably, where the court cannot lend itself only to the affidavit evidence but will have 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.
(13) Further, in response to an application of that nature, the law requires that the Defendant shall show cause that he/she has a good defence to the action on its merits or disclose such facts as may be deemed sufficient to entitle him defend the action generally. See the case of KEATING vs. HEMANS (1961) GLR 797-798.
(14) Order 14 rule 3(1) stipulates that a Defendant may show cause against the grant of the application by filing an Affidavit in Opposition or otherwise to the application, to the satisfaction of the court. In my opinion, the “otherwise” in this context may be construed to include a Statement of Defence or legal arguments advanced in opposition on behalf of the respondent. It is worthy of note that in this instant case a defence has been filed.
(15) In my ruling delivered in this court on 08/12/2015 in Suit No. AP 208/2015 titled: Shaibu Amadu v HFC Bank Limited I did state that regardless of a defence filed though, a court of law has the inherent power to grant a summary judgment where the action does not fall within the general term of cases under rule 12 of Order 14. The caveat, however, is that 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 for purposes merely of delay. And also that it ought to be emphasized that the decision to grant a summary judgment is that of the court and it shall grant it if satisfied from the pleadings that the Applicant is entitled to it.
(16) The Supreme Court per Sophia Akuffo JSC (as she then was) in SAM JONAH v LORD KUMI DUODU (2003-2004) SCGLR 50 postulated 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.
(17) It can be gleaned from the principle established in the above case 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.
(18) I have applied myself to the principles enunciated supra to the facts and exercised the inherent power to scrutinize the totality of the record in terms of pleadings to determine whether or not the statement of defence on the docket discloses any reasonable defence. To my mind a closer look at the statement of defence filed shows it is made up of general denials and non-admissions only. And so what does the rule of procedure as provided for in the High Court Civil Procedure Rule, 2004 (C.I. 47) say about that?
(19) Order 11 rule 13(1) and (3) of C.I. 47 also provides:
13.(1) Subject to subrule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(3) Subject to sub rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party's defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them (Emphasis Mine)
(20) In the opinion of the Court it is quite proper and necessary that in a pleading a party sets forth the legal conclusion which the party will ask the Court to adopt, provided that conclusion is adequately supported by a statement of facts which are material to that result. On the other hand, it is inadequate to simply plead facts without mentioning the legal consequences which the party will contend flow from the existence of those facts, for otherwise the opposite party and the Court may be left under complete misapprehension and quandary as to the outcome which the party pleading will seek to secure at the trial.
(21) Pleadings are meant to disclose fairly the proposition being presented by the party pleading, and therefore the limitation of pleadings to a recital of denials or non-admissions without more would defeat that fundamental purpose. Moreover, Order 11(13) (1&3) supra requires that a party specifically traverses where he/she does not intend to admit. See also the Court of Appeal case of ARMAH v ADDOQUAYE (1972) 1 GLR 109-116 CA.
(22) Having regard to the pleadings particularly the statement of defence filed, I conclude that it does not respond to the claim by the Plaintiff at all. To my mind it was filed for mere purposes of being a “placeholder” or for delaying with the hope that the matter will travel to trial. The statement of defence does not disclose any genuine, bona fide or plausible defence and it shall be sheer dissipation of time to allow the case to take its normal course. The Court notes that at the hearing of the application, Counsel for the Defendant made a belated attempt to argue that the Defendant takes the position that there is no contract between the Plaintiff and the Ministry of Youth and Sports as the Plaintiff only mentions the National Sports Council. Plaintiff Counsel objected to the submission on the grounds that it is not contained in the affidavit filed. The Court sustained the objection. Be that as it may I am of the view that a general review of the attached documents clearly undermines the submission of Counsel.
(23) Undoubtedly on the facts and a review of the Exhibits (C, C1, C2 and C3), being letters exchanged between the Plaintiff and the National Sports Council, the Defendants’ statement of defence filed is unsupported. The Defendant with respect is simply engaged in a deliberate attempt at evading its legal obligations by the use of legal technicalities. Now to leave no one in doubt, I produce below part of Exhibit “C1”, a letter written by Joe Kpenge, at the material time Director General of the National Sports Authority dated May 18, 2015 and addressed to the Minister of Finance and copied to the Minister for the Youth and Sports:
It is titled – Apple Healthy Life Expert Limited
“This is to confirm that the Ministry of Youth and Sports contracted the above named Company to supply and install health [Gym] equipment at the National Sports Authority Stadia in Accra, Kumasi, Sekondi and Tamale; that the work was completed in 2012. However, due to inadequate release of budgetary funds to us since 2013 we have not been able to pay the company.
We appeal to Hon. Minister to intervene and have our indebtedness to Apple Healthy Life Expert Limited settled as soon as possible.
Counting on your consideration
[Sgd] – Joe Kpenge (Director General)”
(24) In Exhibit C2 the same Mr. Kpenge in a letter dated 12th October 2016 also addressed to the Minister of Finance wrote to request for funds in the amount of Two Million Six Hundred and Thirteen Thousand Nine Hundred and Sixty-Eight Ghana Cedis (GH₵2,613,968.00). I note that in that letter Mr. Kpemge gave the breakdown in regards to the stadia and the amount due. The Accra Sports Stadium amount was GH₵276,414.00 whilst that of Kumasi, Sekondi and Tamale were GH₵875,877.00, 581,877.00 and GH₵897,800.00 respectively.
(25) Exhibit C3 is instructive because it is a “Controller and Accountant-General Warrant” printed on 30th December 2016 in the amount of GH₵2, 613,968.00. Attached is a letter dated 15th December 2016 and signed by Hon. Cassiel Ato Forson, MP (Deputy Minister – for Finance). It is titled “Release of Funds for the Payment of Gymnasium Equipment” and addressed to The Controller and Accountant General.
The letter states as follows:
“Please refer to the Ministry of Youth and Sports letter No. VF.89/215/01 dated 24th November, 2016 on the above subject. Authority is hereby granted you to release the sum pf GH₵2,613,968.00 (Two Million, Six Hundred and Thirteen Thousand, Nine Hundred and Sixty Eight Ghana Cedis) to enable the Ministry pay for the supply of Gymnasium equipment to the various Sports Stadia by M/s Apple Healthy Life Experts.
The expenditure of GH₵2,613,968.00 should be charged to the Contingency CAPEX Vote under the 2016 Budget Estimates.You are to ensure that all withholding tax deductions are done before payment is effected.
By a copy of this letter, the Chief Director, Ministry of Youth and Sports is to ensure that the transactions are inputted into the GIFMIS Platform to facilitate the payment process.
Sgd – Hon Cassiel Ato Forson, MP – Deputy Minister”
(26) Furthermore, I note that the other exhibits referred to supra all clearly speak in an eloquent, candid and clear manner to the contract performed by the Plaintiff and the indebtedness of the Ministry of Youth and Sports to it. Nevertheless, Counsel contends that there was no contract between the Plaintiff and the Ministry of Youth and Sports. This flies in the face of correspondence of which the court has notice by which the indebtedness was admitted and the order for payment made by the former deputy Minister for Finance and the warrant issued by the Controller and Accountant General. To that extent, had the submission of Counsel not been overruled as inadmissible, it would have been rejected by this Court as an afterthought.
(27) In Conclusion, I answer the question posed elsewhere in this ruling that, the fact that a Defendant has filed a Statement of Defence does not necessarily preclude a Plaintiff’s application for Summary Judgment as in the instant case. It is only where the said defence discloses a triable issue either in part of or the whole claim that entitles the defendant to defend generally. I am fortified in my position by the case of AFODOFE v CENTRAL INSURANCE CO. (1992) 2 GLR 207 at 213 where the learned jurist Acquah J (as he then was) postulated that if the totality of the pleadings and in particular the statement of defence discloses no defence in law, then notwithstanding the existence of a defence on the docket, the applicant is entitled to summary judgment.
(28) Overall, I am satisfied that the Plaintiff is entitled to summary judgment because the Defendant has no valid defence to the claim. It is now a settled law that where there can be no reasonable doubt that if a Plaintiff was entitled to judgment it shall be inexpedient to allow a defendant to defend for mere purpose of delay. See: SAM JONAH v LORD DOUDU-KUMI SUPRA. In other words, the court must not wittingly be an accomplice to a bid to abdicate or delay meeting responsibilities in a business transaction or allow its process to be used to frustrate persons who are genuinely owed a debt.
(29) In the result, I uphold the submissions of Counsel for the Plaintiff and enter summary judgment for the Plaintiff for the relief 1 as endorsed on the Writ of Summons. Though the Plaintiff is entitled to interest, the Court is unable to accede to the 35% as endorsed on the writ of summons because to my mind no justifiable reason has been given for the claim. To that extent, the Court orders that the Plaintiff is entitled to interest at the prevailing bank rate on the amount stated on the writ from March 1, 2013 till date of final payment.
Cost is assessed at Gh₵10,000.00 in favour of the plaintiff.