GLADYS OWUSU COFFIE -VRS-HEAD OF FAMILY GILBERT JOHNSON [2022] GHACA 92 (31 March 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - GHANA CORAM: DZAMEFE, J. A (Presiding) DODOO, J. A. BARTELS-KODWO, J. A SUIT NO. H1/114/2020 31st March, 2022 MADAM GLADYS OWUSU COFIE ------- PLAINTIFF/RESPONDENT VRS. 1. THE HEAD OF FAMILY GILBERT JOHNSON FAMILY 1ST DEFENDANT/APPELLANT 2. THE CHIEF LAND REGISTRAR RESPONDENT J U D G M E N T BARTELS-KODWO, J. A: SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. This is an Appeal filed by the Defendant/Appellant, hereinafter referred to as the Appellant against the ruling of the High Court delivered on 26th June, 2018 refusing to set aside a default judgment. The subject matter of the suit has a little history. It is the case that the Respondent’s late mother Victoria Netteley Allotey purchased the land from one Gilbert Johnson. He passed on and his successor, John Benjamin Johnson, his eldest son as Head of Family executed a Deed in 1975 in respect of the purchase. The children of Victoria Allotey, including the Respondent registered the land and obtained a Land Title Certificate. They then sued one Ansong Wordie who had trespassed on the land claiming to have obtained a lease from the same Johnson Family. The Respondents took an action against them and won in the High Court. Ansong Wordie appealed against that judgment but by then their lease of over 30 years had expired so they vacated the land. The Court of Appeal was unaware of this ruled in their favour on the basis of the principle of Limitation that Ansong Wodie had been on the land for over 12 years before Plaintiff/Respondent took the action. The Respondent later sued the Head of Family Gilbert Johnson Family as the first defendant and then the Chief Land Registrar as the second Defendant for the following reliefs; 1. Declaration of title to all that piece or parcel of land described in the schedule to the statement of claim. 2. Declaration that the judgment of the Court of Appeal in Suit No. H1/194/2009 dated 3rd March 2010 was procured by fraud. 3. Declaration that in the alternative the plaintiffs are entitled to a Reversionary interest in the land. 4. Perpetual injunction to restrain the 1st Defendant from interfering with Plaintiff’s quiet enjoyment. SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. The record shows that no one appeared for the defendant family to contest the suit, after the grant of default judgment and the ‘purported’ taking of evidence in proof of Plaintiff’s case, the court then entered Interlocutory judgment following which on 20th June, 2014 it gave its final judgement in Plaintiff’s favour for all her reliefs.(Judgment at pages 45-51 ROA) One Mrs. Gladys Ansaba Annan then brought a motion (see ROA page 40) to set aside this judgment which the court differently constituted refused to set aside. It is against this refusal that the appeal is launched. The Grounds of Appeal are that: 1. 2. 3. 4. 5. The ruling/judgment is against the weight of evidence The learned trial Judge erred in not setting aside the judgment for being in breach of the rules of natural justice The learned trial Judge erred in not setting aside the judgment for non-service of the motion on notice for default judgment The learned trial Judge erred in not setting aside the judgment as a nullity The learned High Court Judge erred in not applying the principle that it didn’t matter how a nullity gets to the knowledge of the court, it must set it aside when it has notice of it. From the Records it is evident that the Entry of Judgment could not be served on the 1st Defendant family. This was later carried out by substituted service. This was to be effected by three modes, i.e. on the High Court Notice Board, structures on the land and on an adult in the house. However the bailiff filed an affidavit of service of this process stating that he could not find any adult in the house to serve. The Appellant therefore contends this process was not properly and sufficiently executed. Following this the Appellant states that an order for a Writ of Possession was filed though the Entry of Judgment was not properly executed. Thus a search was conducted to ascertain the status of the case. In the wake of this a motion was filed to set aside the SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. Judgment of 20th June, 2014 as well as any interlocutory judgment prior to it for being a nullity and to set aside any purported execution of same [ROA 40-52]. Learned Counsel for the Appellant argued all the five grounds of Appeal together on the basis that each of them deals with the judgment being null and void. He made the point that contrary to the rules of court where the family must be sued through its Head see order 4 r 9 (2) of the High Court (Civil Procedure) Rules 2004 C. I. 47 no named person was sued and the Defendant simply read THE HEAD OF FAMILY GILBERT JOHNSON FAMILY and this should have caught the attention of the judges who dealt with the matter in the High Court. Consequently, the Appellant, then as Applicant in its motion to set aside the judgment brought this up and deposed that their Head of Family Benjamin Johnson died on 19th November, 2011 and no Head of Family has since been installed hence it was impossible for him to have been served with the Writ of Summons on 18th July, 2013. Learned Counsel for the Appellant stated that the trial judge seemed to have been deceived by the submissions of Counsel for the Respondent when he submitted that ‚There is a defendant. The name is Gilbert Johnson. That is the name provided by the Plaintiff as Head of the Gilbert Johnson Family. We have the Head of Family before the name. It could be our style. They say their head of family is Ben Johnson who died on 19th November, 2011. That is the name known to them. It does not therefore assuming without admitting make the Writ a nullity. It is incumbent on the said person to come to court to say that it is not my name‛. Thus instead of setting aside the Judgment on the ground that the Writ was not issued in accordance with law the court rather chose to put the Bailiff in the box to find out whether he served the Writ of Summons on someone. Counsel went further to submit that the court ought to have granted the application because no person was named as Head of family on the Writ. As a result a nameless person cannot be served with the motion on notice for default judgment. More so there was no indication where the service of this motion took place. Besides it was served on SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. one Mr. Hammond who they do not know. See ROA Page 42 paragraph 13 of the affidavit in support of the motion. It is Counsel’s view that the nameless first defendant should have been served personally and if that was not possible, leave should have been sought to serve him by substituted service. Since this was not the case and the service was effected on a Mr. Hammond that they do not know, the Court erred in not setting aside the Judgment since the failure to serve the unnamed defendant sinned against the rules of natural justice. See the case of BARCLAYS BANK OF GHANA LTD VRS GHANA CABLE CO LTD [1998-1999] 1 SCGLR holding 1 where per Acquah JSC as he then was, it held that ‚A court has generally no jurisdiction to proceed against a party who had not been served. Accordingly when a Defendant complains that he has not been served with a Writ of Summons or any process which requires his personal service, the Court is duty bound to examine that complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of the Defendant” and it was similarly also held in the case of ABOAGYE VRS GHANA COMMERCIAL BANK LTD [2001-2002] SCGLR 797. Learned Counsel further submitted that in an action for the Declaration of title to land same is not concluded upon the grant of a motion for default judgment. The Plaintiff thereafter has to be put in the box to lead evidence to prove his case, see holding 4 of CONCA ENGINEERING (GHANA LTD) V MOSES [1984-86] GLR 319. Again it was lucid on the face of the record that although the Respondent purported to lead evidence it was plain on Exhibit B, the search results, that there was no evidence to show that the Appellant had been served with hearing notice for evidence to be led on the Respondent’s claim. This he pointed out is a breach of natural justice and in his view the judge ought to have set the judgment aside on this ground. Learned Counsel concluded his submissions by stating that the learned trial judge’s finding that ‚After having considered the affidavits filed for and against the application and having listened to both counsel, it is my considered opinion that the Court will refuse to set aside SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. the Judgment of 20th June, 2014 and declare it a nullity on the basis that the Applicant was served with all the processes” is against the weight of the evidence, i.e. affidavit evidence since it was clear on the search results that the motion for default judgment was not served and nobody was served to appear in court for the taking of evidence. The judge was wrong when she found that all processes were brought to the attention of the Appellant family. Learned Counsel for the Respondent on the other hand submitted that the action was taken against the Head of Family of the Gilbert Johnson family. Service of the process was directed on the Head of Family at a house in a suburb called ‚Paa Willie‛ ‚Russia‛ near Mataheko. According to him the Bailiff gave a vivid description of the place of service which could not be discredited when he was cross-examined. Therefore the Appellant cannot seek to set aside the judgment. He further argued this was so because the rules require the occupant of the office of Head of Family to be sued and not a named individual. They had directed service on the Head of Family who received the process and read it hence the service could not be questioned and the Appeal should fail. In making further submissions learned counsel for the Respondent attacked the capacity of the Applicant to bring the application and submitted the trial judge was right in not entertaining the application. This is because the Applicant did not follow due process as a non-party to the suit by seeking the Defendant’s consent to use his name in applying to set aside the judgment. See LAMPTEY V HAMMOND (1987-1988) 1 GLR 327. He prayed the court to dismiss the Appeal since the Applicant had no credible defence to the Respondent’s claim and the trial judge properly relied on the case of AGYEMAN V GHANA RAILWAY AND PORTS AUTHORITY (1969) CC 60 where it was held that; SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. ‚The principle which guides a judge in the exercise of his discretion to set aside a judgment obtained in default of appearance (or of defence for that matter) is, we think… that party praying for the exercise of the court’s discretion must disclose either by affidavit or some other acceptable means that he has a reasonable defence to the claim, and that it would be, in the circumstances, unjust to have this case unadjudicated upon”‛ The Appellant’s counsel in a reply to the Respondent’s written submissions contended that the Respondent failed to address certain issues and was untruthful when he stated that ‚The Applicant also argued the motion for default judgment of defence was not served‛. He submitted that though all processes were duly served upon a search conducted it is clear that the motion for the judgment in default was served on one Mr. Hammond who is unknown to the parties. However the first judge went ahead and granted the application which was the basis for the final judgment. This service on Mr. Hammond was clearly a nullity and the trial judge should have set aside the judgment based on this. More importantly, he submitted that since the basis of the suit was that the Appellant obtained the judgment of the Court of Appeal which set aside the earlier High Court judgment in the Appellant’s favour by fraud, the judgment of the trial court ought to have been set aside as a nullity. This he said was difficult to understand. This is so because it is impossible to obtain a Court of Appeal judgment by fraud. Fraud can only be perpetuated in a trial court where evidence is taken and not on an appellate court. He also drew the court’s attention to the fact that the earlier judge set aside the judgment for fraud and still went ahead to declare Judgment for the Respondent when having set the judgment aside for fraud nothing else remained to be considered. A trial denovo should have been ordered to determine the matter of fraud hence this is another ground for setting aside the judgment as a nullity. SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. He concluded by stating that it did not matter how it came to the attention of a court that a judgment is a nullity, once it became known same should be set aside. See the case of REPUBLIC V HIGH COURT, KUMASI, EX-PARTE BANK OF GHANA & ORS (SEFA & ASIEDU INTERESTED PARTIES) (NO.1); REPUBLIC V HIGH COURT, KUMASI; EX-PARTE BANK OF GHANA & ORS (GYAMFI & ORS. INTERESTED PARTIES)(NO. 1) (CONSOLIDATED) [2013-2014] 1 SCGLR 477 where the court per holding 4 stated as follows: ‚it is well settled that a court which had made a void order or a superior court could set aside a void order no matter how the void order was brought to its notice…‛. He concluded that the Appeal should succeed for the following reasons; a. There was non-service of processes i.e. the Writ of Summons and the Motion on Notice for Judgment in Default of Defence which was allegedly served on one Mr. Hammond as well as non-service of hearing notice for the taking of evidence after the Judgment in default of Defence had been granted. b. Setting aside a Judgment of an Appellate NOT trial Court for fraud’ We will adopt the position of the parties and look at the omnibus ground of Appeal that the judgment is against the weight of the evidence together with the other grounds since all the remaining grounds touch on the validity or otherwise of the judgment that was procured. It is also very clear that the Appellant’s beef is that they were never served with the Writ of Summons as stated in paragraph 9 of their affidavit in support of their motion to set aside the judgment because their Head of Family Benjamin Johnson died on 19th November, 2011 and no Head of Family has since been installed hence it was impossible for him to have been served with the Writ of Summons on 18th July, 2013. They are also seriously unhappy with the 1st Defendant being described as THE HEAD OF FAMILY GILBERT JOHNSON FAMILY as in their view no one had actually been sued. We will take the issue of service and find out what is required when a Writ is SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. issued. This is because the trial court itself tried to unravel this by taking the bailiff’s evidence and came to the conclusion in its ruling refusing the application to set aside the judgment as a nullity and ruling that ‚the Applicant was served with all the processes‛. Order 9 rule 2 of C. I.47 states: (2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family. It is the Appellant’s contention that the Head of Family must be a named person and not an unnamed person besides they had lost their Head of family without a replacement since 19th November, 2011 and so he could not have been served. As an appellate court our duty is to look at all the evidence afresh and analyse same to come to the conclusion that the trial judge was right or not in coming to the conclusions that it did. In the case of Bakan Ltd v. Osei [2014] 17 GMJ 68 (C. A), it was held at page 76 that: “An appellate court as a rehearing court is to hear an appeal as if the hearing were the original hearing of the case and hence may comprehensively review the whole case by analysing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at trial before arriving at a decision, so as to satisfy itself, on a preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence.” See also the following cases OPPONG KOF & ORS VRS ATTIBRUKUSU III (2011) SCGLR 176 holding 1 @ 17; of Republic v. Central Regional House of Chiefs & Ors. Ex Parte Gyau (2013-2014) SCGLR 845 where the same principle of what an appeal entails is elucidated. The issue of whether there was service of the Writ of Summons or not which predicated all the subsequent processes and occurrences in this matter up to this point needs to be SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. carefully re-examined. It is stated in the opening words of the Judgment dated 20th June, 2014 that ‚the 1st defendant, being head of family of Gilbert Johnson family failed to enter appearance though he was served with plaintiff’s writ” (emphasis mine). If he was truly served where is the proof of service on the 1st Defendant and who is he? Respondent counsel states they sued Gilbert Johnson however in their own Exhibit EQ that is their indenture, it states that BEN BENJAMIN JOHNSON is the Head and representative of the family of the late GILBERT JOHNSON, which deed was executed in 1975. In the light of this who did they really serve? We have earlier seen in this judgment when the Appellant contended that their Head of Family Benjamin Johnson died on 19th November, 2011 and no Head of Family has since been installed hence it was impossible for him to have been served with the Writ of Summons on 18th July, 2013. There is evidence in the form of Exhibit ‘C’ an Obituary Notice that Benjamin Johnson Head of Johnson family died on 19th November 2011. Yet a look at Exhibit ‘B’ a Search from the High Court Registry at point 2 states that the 1st Defendant was served personally on 18th July, 2013. How exactly does this happen? Who was served? Was the 1st Defendant actually served? We all know that ghosts do not take part in court proceedings. The bailiff was then brought in to testify, all in a bid to clarify these matters to the court. According to the Bailiff’s evidence which can be found at page 795 of the ROA he was sent by the Respondent’s brother to the Gilbert Johnson family, Russia near Mataheko near Paa Wiilie’s area. This brother pointed to the Head of family and he served him. He collected the document. According to him under cross-examination, the Head of family he served bore the same name Gilbert Johnson as the name of the family in the title of the suit Head of Family GILBERT JOHNSON. Under further cross-examination he contradicted himself on this. See ROA 79N. He said he had no positive means of identification to tell whether the person he served was actually Gilbert Johnson or not. But he had served the Head of the Gilbert Johnson Family. He agreed however that his process did not indicate where the service took place. He admitted under cross- SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. examination he served GILBERT JOHNSON and even though he did not indicate on the process that he served the Head of Gilbert Johnson Family he had served the head of family, GILBERT JOHNSON. The Bailiff seems to be blowing hot and cold when in one instance he served Gilbert Johnson and in the other he cannot be cocksure that the person he served is Gilbert Jonson after stating categorically that the Head of Family is a Gilbert Johnson bearing the same name as the Gilbert Johnson family. Where does this leave us? From the bailiff’s evidence the person he served was the head of family GILBERT JOHNSON who according to him bears the same name as the family GILBERT JOHNSON. We have however seen that as far back as 1975 per Exhibit EQ Gilbert Johnson at that point was dead, he was described in the indenture Exhibit EQ as ‘late’. From the Appellant’s affidavit even the successor of Gilbert Johnson ‚their Head of Family Benjamin Johnson died on 19th November, 2011 and no Head of Family has since been installed hence it was impossible for him to have been served with the Writ of Summons on 18th July, 2013.” Who then did the bailiff actually serve? A Writ is to be served personally unless otherwise directed by the court. How is personal service of a court process effected? Order 7 of C. I. 47 lays down the procedure as follows: ORDER 7 SERVICE OF PROCESS GENERALLY Person to serve a document 1. A document which is required to be served on a person shall be served by a bailiff of the Court or a process server registered with the Court; but a party may direct the service. SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. Personal service 2. (1) A document which is required to be served on a person shall be served personally unless the express provisions of these Rules otherwise provide or the Court otherwise directs. (2) This rule shall not affect the power of the Court under any provision of these Rules to dispense with the requirement of personal service. How personal service is effected 3. (1) Personal service of a document shall be effected by leaving a duplicate or attested copy of the document with the person to be served. Considering the manner in which service is to be carried out as laid down in the rules above can it be said with certainty that the 1st Defendant/Appellant was served with the Writ of Summons? The 1st Defendant/Appellant in this suit is the Head of Family Gilbert Johnson Family. There is no named person. The Respondent contends it served the Head of Family. The Bailiff who carried out the process of service delivered himself under cross-examination as follows; Q. So you were to serve the Head of the Gilbert Johnson Family. Is that not so? A. That is so. Q. Tell the Court the name of the Head of the Gilbert Johnson Family you were to serve. A. Gilbert Johnson SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. At this point we know from the record that as far back as 1975 per Exhibit EQ Gilbert Johnson has been deceased. Therefore in the chronology of events he could never have been served by the bailiff on 30th July, 2013. There is certainly evidence of some service by the Bailiff on somebody but in our view he did not serve the Head of Family of the Gilbert Johnson Family. The Respondents contend at that particular time they had no Head of Family. The Bailiff is not too sure exactly who he served. The Writ therefore in our view was not served on the Head of Family Gilbert Johnson Family since no one occupied that position at that time. What then is the effect of this lack of service on the 1st Defendant who sought to set aside the judgment obtained upon the alleged service of the Writ on them when in actual fact they had not received it? Whoever the Bailiff served was simpliciter not the Head of Family Gilbert Johnson Family. The trial judge at page 81 A of the ROA had this to say “The Court is of the considered opinion that if the person to whom the bailiff gave the process to was not the Head of Family, he would have not taken the Writ of summons and read it and kept it but would have informed the bailiff of his status and would have handed it back to the bailiff. …Therefore the fact that the Applicant says the Defendant was not served is untenable.” The Court Bailiff testified he served someone who was the Head of Family and who goes by the name Gilbert Johnson. We have already said there was no Gilbert Johnson alive who was Head of Family at the time of this service was carried out so though there was service on some person this could not have been the Head of Family since none existed at the time. The case of AMOAKO V HANSEN [1987-88] 2 GLR 26 @ 44-45 states that the failure to serve the 1st Defendant to attend the summons or the trial was considered a gross irregularity and a clear instance of "unfairness in action." In the AMOAKO case SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. reference was made to two old English cases of R. v. Dyer (1703) 6 Mod. Rep. 41 and R. v. Benn & Church (1795) 6 T. R. 198 which held that service of summons upon a party to be affected by the proceedings in which the summons is issued is a condition precedent to the validity of the proceedings. This position has been reiterated in our own home grown cases such as Vasquez v. Quarshie [1968] G. L. R. 62 at 65; Konadu v. Ntoah [1971] 1 G. L. R. 318 at 321 and Wadad Haddad Fisheries v. State Insurance Corporation [1973] 1 G. L. R. 501. Amissah J. A. in the Vasquez case (supra) remonstrating at 65 had this to say “... *N+o court is, to my mind, entitled to call upon a plaintiff to proceed with the proof of his claim if it is aware that the defendant has not been notified of the hearing…. *A+ court which allows this to happen ... will be offending against the elementary principle of justice which obliges it to hear both parties ... A court making a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction." It is crystal clear that the Appellant was never served personally with the Writ of Summons in this case. What is the effect of this? If they were not served then they did not have the opportunity to attend court and defend themselves. It is a breach of the audi partem rule. We have come to the conclusion that the Writ was not served on the Appellant hence everything else that was predicated upon it cannot stand. It is trite learning that you cannot put something on nothing and expect it to hold. There was non-service of the processes i.e. the Writ of Summons which according to the bailiff was served on the Head of Family Gilbert Johnson and the Motion on Notice for Judgment in Default of Defence which was allegedly served on one Mr. Hammond as well as non- service of hearing notice for the taking of evidence after the Judgment in default of Defence had been granted. SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. We will agree with the Appellant and say that the judgment is against the weight of the evidence. The judge did err in not setting aside the Judgment for breach of the rule of natural justice. The Appeal therefore succeeds in its entirety on all the grounds. We grant the Appellant the reliefs sought by setting aside the ruling/decision of the High Court dated 20/6/2014 as well as any interlocutory judgment prior to it as well as any purported execution based on the said judgment. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) Dzamefe, J. A I agree SENYO DZAMEFE (JUSTICE OF APPEAL) (Sgd.) Dodoo, JA I also agree JENNIFER DODOO (MRS.) (JUSTICE OF APPEAL) (Sgd.) COUNSEL:  Nii Akwei Bruce Thompson for the Defendant/Appellant SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR.  Felix Nana Osei for the Plaintiff/Respondent SUIT NO: H1/1114/2020 MADAM GLADYS O. COFIE VS. THE HEAD OF FAMILY GILBERT O. JOHNSON FAMILY & ANOR. 16