Angmor Vrs. Dorkunu and Others (CA. 57/2003) [2005] GHACA 15 (22 April 2005);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA  -  A.D. 2005.

 

 

CORAM  -  AKOTO-BAMFO [MRS], JA

                    KANYOKE, JA

                    APALOO, JA

 

 

CIVIL APPEAL

NO. CA. 57/2003.

22ND APRIL, 2005.

 

 

BENJAMIN ANGMOR            …      PLAINTIFF/RESPONDENT

 

            VRS.

 

AWISI DORKUNU & 2 ORS.   …     DEFENDANTS/APPELLANTS

------------------------------------------------------------------------------------------

                                  J  U  D  G  M  E  N  T

------------------------------------------------------------------------------------------

 

APALOO, JA  -   This appeal from the Circuit Court Odumase-Krobo had two main grounds to wit:-

       “(1)   The learned trial judge erred in law when he gave judgment without

                 giving the Defendant/Appellants and their witnesses the chance to

                 state their case.

         (2)    The case which had been pending in the circuit Court Akropong

                  Akuapim for 3 years was transferred suddenly to Krobo Odumase

                  Circuit Court without any reason given nor were the appellants notified

                  of the transfer.”

       The facts are simple and straight forward.  On 12th September, 1996 the Plaintiffs/Respondents issued a Writ at the Circuit Court Akropong Akuapim against the Defendants/Appellants for certain reliefs concerning land.  Before pleadings closed motions for joinders were granted by the Circuit Court Akropong Akuapim and directions were taken in the same Court at Akropong Akwapim in the absence of the Defendants/Appellants who had been served.  The case was then adjourned for hearing with an order that hearing notice be served on the defendants/Appellants to appear on 21/1/97.  The case then received several adjournments spanning from January 1997 through to 12th May 1998.  The attendance of the parties were not regular.

       On 3RD July 1998, the case appeared for the first time in the Circuit Court Odumase Krobo and was adjourned for hearing with costs in favour of the Plaintiffs/Respondents. And order for hearing notice to be served on Defendant and Co-defendant was made.  On the adjourned date Plaintiff opened his case in the absence of the Defendants.  Hearing continued in the absence of the Defendants/Respondents until Judgment was delivered on 5th October 1998.

        Subsequently on 11/11/98 the 3rd Defendant/Appellant filed an application for review of the judgment.  In his supporting affidavit the Defendant/Appellant swore that he was joined to the suit as Co-defendant by the Circuit Court Akropong Akwapim and thereafter he was aware that proceedings were going on there.  However on two separate occasions he was served with hearing notice in respect of the same suit from the Circuit Court Odumase Krobo.  On receipt of the hearing notice his solicitor and himself thought it was irregular since they were not aware of any order for transfer of the suit to the Circuit Court Odumase Krobo.  That on 14th August 1998 his solicitor wrote to the Registrar of the Circuit Court Odumase Krobo.. The letters complained about the irregularity associated with the hearing notice.  In reply the 3rd Defendant/Appellant was served with the transfer order.  That, while he and his solicitor were trying to unravel the mystery surrounding the transfer of the suit he was again on 2nd November 1998 served with a notice of judgment after trial indicating that the suit has been tried in the Circuit Court Odumase Krobo and judgment had been given in favour of the Plaintiff/Respondent.  He added that he has a good defence to the action and prayed for a review of the judgment.

        Upon refusal of the Circuit Court Odumase Krobo to review the judgment, this appeal was filed.

       I have no doubt in my mind that the trial Circuit Judge at Odumase Krobo proceeded and heard the transferred suit because he was satisfied that the Defendant/Appellants had been served with the appropriate hearing notices.  What the trial judge failed to do was to ensure that all parties in the action before him were aware of the order of transfer of the suit from the Circuit Court Akropong Akwapim to the Circuit Court Krobo Odumase.  Indeed the order of transfer dated 20th May 1998 signed by the Lord Chief Justice Isaac Kobina Abban ordered that “the Registrar of the Circuit Court Korbo Odumase, do cause the parties to be notified of this transfer generally and of the hearing date of any matter or proceedings pending in the said Court.”

        It is noted that when the Registrar of the Circuit Court Odumase Krobo replied to an earlier letter from Defendant/Appellant’s Counsel, he admitted as much to the irregularity involved in the proceedings.  The Registrar wrote that “I wish to inform you that the error was an inadvertent omission I have however rectified it and I thank you so much for drawing my attention to the lapse.”  See Exhibit B.

        It is noted also that at the time the so called error was brought to the attention of the Registrar in August 1998, proceedings have commenced and nothing short of a hearing de novo would have cured the registrar’s omission.

       It is apparent that the trial Circuit Judge was not informed of the Registrar’s failure to notify all parties of the order of transfer.  If that was the case, then indeed the trial court proceeded to hear the suit without jurisdiction.  In my view jurisdiction to hear the case at Odumase Krobo is conferred only when the terms attached to the transfer order were complied with.  Failure to comply with those terms amounted to a fatal irregularity in procedure.  In Ghassoub vrs. Dizengoff [WA][1962] 2 GLR 133 at 137 the Supreme Court adopted a statement earlier referred to by the West Africa Court of Appeal in Amoabimaa vrs. Badu [1957] 2 WALR 214 that:-

       “A judgment or order obtained by some step not warranted by the rules or capable of being sanctioned is wholly void and may be set aside…..It seems to us the order complained of is a nullity and that the respondents who are affected by it are entitled ex debito justitiae to have it set aside.”

        I have already referred to Exhibit B the letter from the Registrar of the Circuit Court Odumase Krobo. That letter portrayed the impression that his omission to notify the Defendant/Appellant with the transfer order had been cured by subsequent notification.

In my view that cannot be tenable.  That letter was written on 24th August 1998, when proceedings had already commenced at the court in the absence of the Defendant/appellant.  The purported notification came rather too late and out of time.  The factual position that the Defendants/Respondents were not notified therefore remained unchanged.  The legal consequence flowing from that position in my view is that the whole proceedings were a nullity because the rules of procedure demanded that parties ought to be notified to enable them participate in the trial.

       Reference has already been made to the fact that the trial judge lacked jurisdiction when he purported to hear the suit.  That being so, the whole trial was a nullity and void.

The law is clear and unambiguous with regard to void judgments or orders.  A person affected by such an order or judgment is entitled ex debito justitiae to have it set aside.  See Mosi Vrs. Bagyina [1963]1 GLR 337.

     It appears that, the application for Review brought immediately after the Defendents/

Respondents have been served with the notice of entry of Judgment after trial found no favour in the eyes of the trial Judge.  Even though I have my doubts about the correctness of the application, a thorough study of the affidavit in support will disclose the true and actual substance of the application, to wit, to set aside the judgment given in default of attendance in Court.  A default judgment obtained in default of attendance has been provided for by Order 36 Rule 18 of LN 140A, the High Court Rules.  Rule 18 states

       “Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within fourteen days after the trial.”

        The trial Judge rejected the appellants application on the grounds that it had no merit.  Indeed the trial judge did not find any substance in the depositions in the affidavit in support of the application.  With the greatest respect to the trial judge, I find his conclusion untenable.  The Defendant/Appellant in that affidavit gave reasons why he did not appear in Court.  Simply put, he was not informed of the transfer of the suit and was accordingly absent when the case was heard.  He stated that his absence was not intentional or wilful and that he has a good defence to the action.  The import of the affidavit was to invoke the Court’s power to set the judgment aside.  This view is supported by the dictum of Akuffo-Addo J.S.C. in Mosi vrs. Bagyina [supra]

……”the Court or a Judge is under a legal obligation to set it aside either suo moto or on application of the party affected.  No judicial discretion arises here.  The power of the court or a Judge to set aside any such judgment or order is derived from the inherent jurisdiction of the Court to set aside its own void orders and it is irrespective of any expressed power of review vested in the Court or a judge; and the constitution of the court is for this purpose immaterial.  Further there is no time limit in which the party affected by the void judgment or order may apply to have it set aside.”

        It is obvious in this case that the duty of the court to have the dispute determined on the merits has been seriously compromised as one side has been refused the opportunity to be heard.

According to Sir Forster Sutton in Ojukutu Vrs. Odeh [1954]14 W.A.C.A 640 “Each party has the right to have the dispute determined upon the merits and the courts should do everything to favour the fair trial of the questions between them.  Blunders must take place from time to time; and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.  All such cases of blunders may be remedied by payment of costs or imposition of terms and conditions.”

        For the foregoing reasons, I will allow the appeal, set aside the judgment dated 5th October 1998 and order a trial de novo by the circuit Court Odumase Krobo.

 

 

                                                                                R. APALOO

                                                                      JUSTICE OF APPEAL

 

 

 

AKOTO-BAMFO, JA -  I agree with the conclusions reached by my learned brother that the appeal be allowed and therefore have nothing useful to add.

 

 

 

                                                                      V. AKOTO-BAMFO [MRS.]

                                                                         JUSTICE OF APPEAL 

 

 

 

 

 

KANYOKE, JA  -     I also concur in the judgment delivered by my brother Apaloo that the appeal should be allowed and the case sent back to the Circuit Court Odumase Krobo for trial de novo.

 

 

                                                                                  S.E. KANYOKE

                                                                              JUSTICE OF APPEAL

 

 

 

COUNSEL  -  H.D. OWUSU YIANOMAN FOR THE APPELLANTS.

 

                        R.B.K. ABOAGYE FOR RESPONDENT.

 

 

 

 

 

 

~eb~