IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2016
BIZZACO LTD - (Plaintiff)
ACCRA METROPOLITAN ASSEMBLY - (Defendant)
DATE: 25TH JANUARY, 2016
SUIT NO: RPC/365/2014
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
FELIX QUARTEY, ESQ., FOR PLAINTIFF/RESPONDENT
SAMUEL MENSAH AKRONG, ESQ., FOR DEFENDANT/APPLICANT
The suit was slated before the court for trial after the pre trial conference failed to settle the matter between the parties. The court as part of the measures for expeditious trial of the action and in pursuance of Order 32 Rule 7A of the High Court (Civil Procedure) Rules, C. I. 47 as amended by the High Court (Civil Procedure) Amendment Rules, C. I. 87, ordered the Plaintiff to first file witness statements of all its witnesses and accompany same with the documents it intends to rely on at the trial. There was also a further order that upon service of the Plaintiff’s documents and witness statements on defendant, Accra Metropolitan Assembly (AMA), it also had fourteen days to file its own documents.
The plaintiff duly complied with the orders of the court whiles the Defendant failed to comply. Various hearing notices were served on the defendant for it to appear for case management conference which said notices were spurned. The court accordingly invoked its powers under Rule 7A
of order 32 of C. I. 47 as inserted by C. I. 87 and struck out the Statement of Defence of the defendant and as Plaintiff’s claim partly consist of special damages, the court adjourned in order for the Plaintiff’s witnesses to go into the witness box to prove their claim. It was only at the tail end of this judicial exercise that learned counsel for defendant appeared before the court.
In the instant application, defendant prays the court to restore its statement of defence and a further order to be allowed to file its witness statements and documents it intends to rely. To allow or not to allow the present application depends on the content of the affidavit deposed to, the supplementary affidavits and the affidavits in opposition to the application as well as a holistic appraisal of the rules on case management that will help the court in the exercise of its discretion.
The first bases for seeking to restore defendant’s statement of defence is that it was not served with a hearing notice to appear before the court for a case management conference. Is that the case? The court on the 24th of November, 2015 even though served to appear before the court, the defendant failed to appear leading to an award of cost against the defendant and the court scheduling a case management conference for 10/12/15. The defendant was duly served with a hearing notice but failed to appear before the court on that date. On the 10/12/15 the matter was adjourned sine leading to another hearing notice for service on defendant for the case management conference on the 18/12/15. It was on 18/12/15 that the case management conference commenced and continued on the 21/12/15 which said date, the defendant again was notified.
It is therefore not correct that defendant was not notified of any case management conference. The first ground of defendant in seeking to restore its statement of defence on the basis of non service of hearing notice fails.
Counsel for defendant in moving the motion made the court aware of the exit of the lawyer for AMA at the time the hearing notices were being served, and without any substantive lawyer, the defendant could not put in any representation. As this application is an invitation to the court for the exercise of its discretion, the court will allow the application only if it considers it just to do so. If indeed it was the desire of the defendant establishment to defend the action and the door has been shut against it due to the misconduct or negligence of its lawyer, will it be fair, even at this late hour, if it genuinely seeks to be given an opportunity to fight this matter, and the court refuses same?
I think the non-attendance of the defendant in court was purely not of its making but that of its negligent lawyer. I am not unaware that the defendant may have a cause of action against its lawyer under the Legal Profession (Professional Conduct and Etiquette) Rules, 1969, (L. I. 613), nonetheless, the court as far as possible should not visit the sins of the defendant’s lawyer on the defendant itself. The defendant, I think did not deliberately fail to appear to slow down the process of the court and neither does it intend to gain some unfair advantage over the plaintiff. I am not unmindful of the fact that the courts exist to do substantial justice and as Ofoe JA put it in the case of KAY-FIANYO & OTHERS v KETEKU Unreported, Suit No. H3/287/2013 that:
“In these days and age, administration of justice thrives on doing substantial justice in deserving cases more than helmed in by strict and narrow interpretation of rules which the late Professor Ocran called “technicism” which are nothing but “technicalities of the law”
The rules of court are nothing but maidservants and not mistress to hold the courts prisoners from dispensing substantial justice. Sophia Akuffo JSC amplified it in the case of EX PARTE EREDEC case (2003-2004) SGLR 21 at 47 that:
“In its complementary character, civil procedure functions as a vehicle for the actualization of the substantive law and this role has been likened to that of a handmaiden rather than the mistress which must not be applied in such a hard and fast manner as to cause injustice in any particular case”.
Besides, whatever time from December, 2015 till now that has been lost can adequately be compensated for in terms of cost. I will accordingly restore the statement of defence of the defendant.
And order it to file its witness statements and documents within five working days from today.
I do not find it fair to set aside the processes undertaken so far and will rule that the case management conference held in respect of the plaintiff will stand. After defendant’s documents had gone through case management conference I will recall the two witnesses of the Plaintiff to be cross examined by the defendant.
In terms of cost, besides the various awards I made in favour of the plaintiff for defendant’s failure to attend the conferences, I will award another cost of Ghc 2.000.00 in favour of the Plaintiff.
I will schedule a case management conference in respect of the documents of defendant on the 10th of February, 2016 at 13:00 GMT.