Diplomat Beach Resort Ltd. -vrs- Cynthia Golden Moore & Another [2022] GHACA 6 (12 May 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA. A. D. 2022 CORAM: WELBOURNE J. A. (PRESIDING) B. MENSAH J. A. BAFFOUR J. A SUIT NO: H1/153/2021 12TH MAY, 2022 DIPLOMAT BEACH RESORT LTD APPELLANT VRS 1. CYNTHIA GOLDEN MOORE RESPONDENTS 2. KOFI ESSON JUDGMENT Baffour J. A: Introduction: We have been called upon to make a determination in quite a narrow scope regarding the exercise of the power of a trial court to not relist a suit that had earlier been struck out for what the trial court deemed to be the exercise of its power under Order 37 Rule 4 of the High Court (Civil Procedure) Rules, 2004, C. I. 47. As to whether or not the exercise of the discretion not to relist the suit was properly grounded on the law and procedure confronts this court for determination. The parties would simply be referred to by the designations they bore at the court below. 1 ! Background The Plaintiff commenced an action on the 21st of March, 2014 against the defendants for what he deemed to be a wrongful execution and auction sale of its H/No 19, Beach Crescent, Coco Beach at Nungua. The suit did not see much activities until the 24th of July, 2018 when Yaw Oppong, Esq filed a change of solicitor process as having been appointed in the stead of Egbert Faibille Jnr., Esq as the new lawyer for the plaintiff. This notice was followed with an application for interlocutory injunction even though a similar one had earlier been filed and same dismissed by Atto Mills-Graves J. On the day the motion for the interlocutory injunction was to be moved by counsel for the plaintiff on the 18th of February, 2019, the learned trial Judge refused to entertain the application and rather indicated to the parties that the suit had long been struck out for failure of the plaintiff to prosecute the suit. Armed with this information, plaintiff proceeded to file a motion for relistment of the suit. This application was strongly opposed by the 2nd defendant. In a ruling by the learned trial Judge on the 18th of February, 2019, she declined to accede to the invitation to relist the suit for trial on a number of grounds, including inter alia, that the suit was struck out by means of Registrar’s Summons under Order 37 Rule 4 of C. I. 47 and the plaintiff had delayed for too long in bringing the application to relist the suit. Aggrieved by this ruling of the learned trial Judge, the plaintiff has mounted his appeal and challenges the correctness of the appeal on a number of grounds as stated under the grounds of appeal as follows: (i) The ruling of the court dated the 18th February, 2019 is against the weight of the affidavit evidence on record. (ii) The honourable High Court erred when it failed to give adequate consideration to the law that a court lacks jurisdiction to strike out a suit from the Cause List without prior notice to the parties in the case thereby causing irreparable injustice to the plaintiff/applicant/appellant. (iii)Additional grounds will be filed upon receipt of a certified copy of the ruling. 2 ! RESOULTION OF THE GROUNDS OF APPEAL With no evidence on record that additional grounds of appeal were filed by the plaintiff, the known grounds for which this court would have to deal with are grounds (i) and (ii) contained in the grounds of appeal of the Notice of Appeal. For a composite discussion of the matters raised in this appeal, I think the two grounds of appeal can be taken and resolved together. A careful reading of the written submission of the counsel for the plaintiff, one could discern that important legal and factual matters have been raised for the consideration of the court. First, the plaintiff complains that there is no evidence on record that the trial court duly served notice of the Registrar’s Summons on the parties before the court purported to struck out the suit. That as long as the parties were not informed of the performance of the exercise of the court under Order 37 of the High Court (Civil Procedure) Rules, 2004, C. I. 47, any purported exercise of power under that Order cannot be deemed to have been a lawful exercise of the power of the court. To Plaintiff it is irrelevant, despite the lapsed period of twenty-four (24) months contrary to what the court found, that as long as due notice was not given to the parties before the exercise of the power to strike out the suit was done, the court was duty bound with its attention having been drawn to the error by means of the motion for relistment, to have accordingly restored the suit to the cause list. 2nd defendant on the other hand contended that the application for relistment brought by the plaintiff out of which this appeal has ensued was brought in bad faith by the plaintiff in an attempt to prevent the 2nd defendant from enjoying the property he had lawfully acquired through a public auction sale. To 2nd defendant, the plaintiff has not demonstrated enough reasons why this court should reverse the learned trial Judge as plaintiff went to sleep after filing the suit. That orders for the filing of witness statements was not complied with by the plaintiff as the suit was abandoned without any justified cause or good reason. That besides, plaintiff failed to abide by the rules in an application of this nature to cause the relistment to be done in a timeous manner. Further that a party is expected to act diligently in the pursuit of his suit and the long lapse from the time the suit was struck out to the time the application was filed was too long a period for the trial court to have relisted the suit for hearing. 3 ! It is only apposite to begin resolution of the grounds of appeal with Order 37 Rules 3 & 4 of the High Court (Civil Procedure) Rules, 2004, C. I. 47, the very rule based upon which the court below hinged its decision to conclude that it was unable to restore or relist the suit for hearing. The said Rule states as follows: “3. Where six months have elapsed since the last step taken in any cause or matter, the party who wishes to proceed shall give to every other party not less than twenty-eight days’ notice of the intention to proceed. 4. (1) Where in any cause or matter no step has been taken for twelve months from the date of the last proceeding and no notice under rule 3 has been given, the Registrar or any party to the cause or matter may apply to the Court for an order that the cause or matter be struck out for want of prosecution. (2) Notice of the application shall be served on all the parties concerned at least fourteen days before the day stated in the notice for hearing the application. (3) Upon the hearing of the application where none of the parties shows cause to the satisfaction of the Court why the cause or matter should not be struck out and upon proof of service of the notice on all parties concerned, the Court shall strike out the proceedings. (4) If any party shows cause to the satisfaction of the Court why the cause or matter should not be struck out for want of prosecution, the Court shall order the proceedings to continue on such terms as it thinks fit”. To the learned trial Judge the suit was struck out under Rule 4 supra for the failure of the Plaintiff to comply with the order for the filing of his witness statement. To the court below, the Registrar subsequently filed a motion to strike out all pending cases that were over a period of twelve months for which no proceedings had been taken. That the suit was struck out after fourteen days when no cause was shown to the satisfaction of the court why the cause or matter should not be struck out. 4 ! First, it is necessary that matters are placed in the right perspective. The order at the application for directions stage issued by the court for the parties to file their intended witness statements was issued on the 22nd of May, 2015 in the absence of all the parties. The only lawyer that was present in court was one Augustine Asarfo Adjei, who represented the 1st defendant. There is no evidence on record that lawyer for plaintiff was served with a hearing notice and he refused to attend court. It is due to this fact that the court on that date ordered the service of the order of the court for the filing of witness statements and a hearing notice on the plaintiff and the 2nd defendant. A glance at page 147 of the record of appeal would confirm this claim that plaintiff and his lawyer as well as the 2nd defendant were absent from court on the 22nd of May, 2015 when directions was issued by the court below. There is also no evidence on record that this order for the service of the order of the court and a hearing notice was complied with by the 1st defendant who was awarded cost of Gh¢500 on that day. Beyond this there are other weightier matters that should have engaged the attention of the court below before exercising its discretion not to relist the suit for trial. And that is the court should have asked itself and be satisfied that the pre-conditions necessary for the striking out of a suit under Registrar’s Summons under Order 37 of C. I. 47 had fully been complied with. And some of these pre-conditions included whether more than twelve (12) months had elapsed since the last proceedings was taken in the suit? And it is not difficult to answer in the affirmative. The second is whether when the Registrar took action under Order 37, it fully complied with Order 37 Rule 4(2) by ensuring that notice of the application for the suit to be struck out was served on all the parties to the action. Carefully combing the entire record of appeal, there is no evidence of the Registrar’s Summons on record. There is no evidence of the service of the Registrar’s Summons on record. There is no recording on the day that the court took action by striking out the suit of the plaintiff. It is against this background that there is force in the plaint of the plaintiff that his suit had been struck out without notice to him and his prayer for relistment before the trial court should not have been dismissed by the learned trial Judge. 5 ! The Order is clear that before the court proceed to exercise its function under Order 37 of C. I. 47 to strike out suits, the service of the application must be effected on the parties to the suit. The issue before the court was not how long the plaintiff had waited or delayed before coming to court but whether the suit was properly struck off the list of pending suits. The only indication we have of any notice at all is from the submission of the 2nd defendant that the usual practice in Registrar’s Summons is not for the parties to be served but for the Registrar to post the list on the notice board of the court within two weeks by means of substituted service. See pages 10 and 11 of the written submission of the 2nd defendant’s counsel. If that is what happened then it is very unfortunate. For substituted service cannot be enthroned to take the place of service on a party. The Order 7 Rule 2(1) of C. I. 47 that deals with service states in clear terms that “[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”. The express provisions of the Rules which otherwise provide or the court otherwise directing are the two exceptions known to the Rules regarding personal service. The first is under Order 7 Rule 2(2) where the Rules provides that the provision for personal service shall not affect the power of the court to dispense with personal service. There is no evidence on record that the court by an order dispensed with personal service of the Registrar’s Summons on the plaintiff and in the absence of any such order, I take it to mean that the general rule of personal service applied. Substituted service could have only been applied when Rule 6 of Order 7 was applied. That is there had been at least three or more attempts to serve the plaintiff with the Registrar’s Summons and that had not been successful and any such attempt would result in further delay or that it was impracticable to effect personal service on a party. In such an event, the procedure is to file an application ex parte and pray for leave for service of the process by means of substituted service. There is no evidence on record that any attempts were made to serve the plaintiff with the Registrar’s Summons and that proved unsuccessful. And there is no evidence that application for substituted service was filed before the court for a grant by the court for the service of the Registrar’s Summons by means of substituted service. Any of these not having been done makes the striking out of the suit, no matter the time it had 6 ! stood on the cause list without action having been taken, wrongful. Order 37 Rule 4(2) of C. I. 47 requires notice to be given to the parties to the suit and without any evidence of notice to the parties, especially the plaintiff the exercise of the power of the court to strike out the suit goes to issue of jurisdiction. For where a court in exercising its power within its jurisdiction, acts wrongly the remedy lies in appeal to challenge that decision. However, where a court failed to give due notice to a party before exercising its jurisdiction, that is very fundamental and strikes at the heart of adjudication making the decision by the trial court a nullity. The distinction was clearly stated by the Supreme Court in the case of Republic v High Court (Human Rights Division) Ex Parte Kudjo Anku, Suit No: J5/39/2016, judgment delivered on the 9th February, 2017. The court speaking through Appau JSC at page 7 of the unedited judgment noted that: “It must be emphasized that when we talk of ‘void judgments/decisions’, they are in two categories. There are those that are void ab-initio just because the court that determined or took those decisions in question had no jurisdiction in the first place, to entertain the matter or matters before it. Such decisions or orders are complete nullities because they go to jurisdiction and can be set aside at any time, even by the very court that made the void orders. This is because they go to jurisdiction and should not have been entertained at all by the court. Time does not therefore run when it comes to the setting aside of such void judgments or orders. Then there are those that are patent errors made within jurisdiction. The procedure to impeach this second category of void orders or judgments is forum and/or time regulated. Such errors of law that are patent or apparent on the face of the record but made within jurisdiction could be set aside as void upon an appropriate application made by an affected or interested party as specified under the rules or through the appeal procedure. In this second category of judgments or orders, time is of the essence, depending on the procedure adopted”. The non-service of notice goes to jurisdiction and falls within the first category whose 7 ! absence makes a decision a nullity. In that sense time is not of essence and could be set aside anytime the attention of a party affected by the decision is drawn to it. This view that I have taken that a court is bereft of jurisdiction to proceed in a matter when notice has not been served is amply supported by a number of authorities. In the case of Nana Ampofo Kyei Baffour (Suing per his lawful attorney Nana Antwi Fosuhene v Justmoh Construction & Others J4/51/2016, the Supreme Court through Adinyira JSC stated as follows: “We affirm this finding; as a court generally has no jurisdiction to proceed against a party who has not been served or notified of a hearing date; to hold otherwise, would be a clear violation of the audi alteram partem rule”. Also in the case of In Rwe Kumi (De’cd), Kumi v Nartey [2007-2008] SCGLR 723 where the same Adinyira JSC stated as follows on lack if notice to a party to proceedings that: “ [i]t is trite law that a person cannot be found guilty or liable on order or judgment unless he had been given fair notice of the trial or proceedings to enable him to appear and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is in our view a nullity” See also Republic v Court of Appeal & Thomford; Ex parte Ghana Chartered Institute of Bankers [2011] 2 SCGLR 941 @ 945-947; Republic v High Court, Accra, Ex Parte Saloum (Senyo Coker, Interested Party) [2011] SCGLR 574 I therefore rule that the trial Judge was not entitled to exercise her discretion to overrule the application for relistment because of the inherent procedural lapse that had occurred when the suit was struck out under Registrar’s Summons. The Rule required the necessity for notice to the parties. There was no such notice and the court did not exercise its power 8 ! to waive the giving of notice. The striking out of the suit was therefore a nullity. Rules of court are part of the kits within the quiver of the Judge for dispensing justice. In that light in the case of F. K. A Ltd vs. Nii Teiko Okine APPEAL NO/J4/1/2016 dated 13/4/2016. The Supreme Court had this to say with the non-compliance with rules of court: “It is important to stress that the adjudication process thrives upon law which defines its scope of operation… Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold”. Again in the case of Ayikai v Okaidja III [2011] SCGLR 205 the Supreme Court stressed that non-compliance with rules of court has very fatal consequences for they not only constitute an irregularity but raise issues that go to jurisdiction. This decision was quoted with approval by Akamba JSC in International Rom Ltd. vs. Vodafone Ghana Ltd., civil appeal no. J4/2/2016 delivered on the 6th of June, 2016. I find the appeal highly meritorious and allow same. I reverse the learned trial Judge and rule that the suit which was struck out was a nullity due to lack of notice to the parties before the court exercised its power to strike out. The suit is restored to the cause list. Eric K. Baffour, Esq. (Justice of Appeal) Margaret Welbourne, JA (Justice of Appeal) 9 ! P. Bright Mensah, JA (Justice of Appeal) 10 !